                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       November 6, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 05-4256
          v.                                               (D. Utah)
 FR AN CISC O M A RC OS                          (D.C. No. 2:04-CR-136-DB)
 EC HEV ER RIA ,

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, B EA M , ** and HA RTZ, Circuit Judges.


      Francisco M arcos Echeverria pleaded guilty in the United States District

Court for the District of Utah to a charge of possession of methamphetamine with

intent to distribute, see 21 U.S.C. § 841(a)(1). The plea was a conditional plea

under Fed. R. Cr. P. 11(a)(2); he reserved the right to appeal the denial of his


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
       The Honorable C . Arlen Beam, Senior Circuit Judge for the Eighth Circuit
Court of Appeals, sitting by designation.
motion to suppress the evidence seized from his motor vehicle. On appeal he

challenges that denial. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.    B ACKGR OU N D

      Viewing the evidence in the light most favorable to the district court's

ruling, see United States v. Lopez, 437 F.3d 1059, 1062 (10th Cir. 2006), we

summarize the pertinent events as follows: On October 22, 2002, Detective Rudy

Chacon of the Salt Lake City Sheriff's Office assisted agents of the Utah

Department of Adult Parole and Probation (AP & P) in arresting M s. Kara

Echeverria. A search of M s. Echeverria's person revealed a firearm and narcotics.

Detective Chacon asked her whether she knew of anyone else who possessed like

items. M s. Echeverria responded that her husband possessed both a firearm and

drugs and usually kept them in his car. She said that he was home at that time

and described the car as a silver or gray Honda Civic. At Chacon’s request, other

officers conducted surveillance on the home until he arrived. They saw a vehicle

leave the home and attempted to follow it, but lost it and returned to the home.

      W hen Detective Chacon arrived at the Echeverria home, the officers

knocked on the main door but received no answer. They then saw that the side

door was open and knocked on it, but again they heard no response. W hile at the

side door Chacon noticed a silver Honda Civic parked toward the rear of the

home, in a driveway that looped into the backyard. He walked around the vehicle

and saw on the floor of the backseat a gun barrel protruding from under a jacket.

                                        -2-
W ith this corroboration of M s. Echeverria’s statement, he searched the Honda,

finding methamphetamine, cocaine, and $6,888 in cash.

      M r. Echeverria was indicted on three counts: one relating to the

methamphetamine, one relating to the cocaine, and one charging that he had

carried a firearm in connection with a drug offense. He moved to suppress the

evidence. After the motion was denied, he pleaded guilty to Count I of the

indictment but reserved his right to appeal the suppression ruling.

II.   D ISC USSIO N

      “W hen reviewing the denial of a motion to suppress, we view the evidence

in the light most favorable to the government, accept the district court's findings

of fact unless clearly erroneous, and review de novo the ultimate determination of

reasonableness under the Fourth Amendment.” United States v. Apperson, 441

F.3d 1162, 1184 (10th Cir. 2006) (internal quotation marks omitted).

      A.     W arrant Requirem ent

      M r. Echeverria contends that because he was neither in nor near his car and

because the car was parked at his home, the officers needed a warrant to search

the car. But these facts are irrelevant. Unless a vehicle is being used as a

residence at a “place regularly used for residential purposes,” California v.

Carney, 471 U.S. 386, 392 (1985); see United States v. Ludwig, 10 F.3d 1523,

1529 (10th Cir. 1993), officers w ith probable cause can search it without a




                                         -3-
warrant if it is “readily mobile.” M aryland v. Dyson, 527 U.S. 465, 467 (1999)

(quoting Pennsylvania v. Labron, 518 U.S. 938, 940 (1996)).

      M r. Echeverria does not claim that he was living in the Honda or that it had

mechanical or other difficulties that would have made it impossible to drive at the

time of the search. His only argument on this point is that his car was rendered

immobile because five police officers controlled the area around the vehicle and

he was not present. W e disagree. “[T]he justification to conduct . . . a

warrantless search does not . . . depend upon a reviewing court's assessment of

the likelihood in each particular case that the car w ould have been driven away . .

. .” M ichigan v. Thom as, 458 U.S. 259, 261 (1982). W hether a vehicle’s mobility

“has been or could be obstructed by the police” is immaterial. United States v.

M ercado, 307 F.3d 1226, 1229 (10th Cir. 2002) (internal quotation marks

omitted).

      M r. Echeverria also claims that a warrant was required because his car was

within the curtilage of his home. But regardless of the merits of the legal basis

for his contention, he has failed to establish its factual predicate. It is his burden

to present evidence that the car w as within the curtilage. See United States v.

Cavely, 318 F.3d 987, 993-94 (10th Cir. 2003). Curtilage does not include all the

area that surrounds a house; it is only “the area [that] harbors the intimate activity

associated with the sanctity of a man's home and the privacies of life.” United

States v. Dunn, 480 U.S. 294, 300 (1987) (internal quotation marks omitted).

                                          -4-
That area does not include an unobstructed driveway beside a house. See United

States v. Cousins, 455 F.3d 1116, 1123-24 (10th Cir. 2006) (describing test for

determining whether area is within curtilage).

      M r. Echverria cites two state-court decisions for the proposition that a

warrant is needed to search a vehicle parked on private property: State v.

Lejeune, 576 S.E.2d 888 (Ga. 2003), and State v. Roaden, 648 N.E.2d 916 (O hio

Ct. App. 1994). Neither persuades us to depart from contrary binding precedent.

      B.     Probable Cause

      M r. Echeverria next argues that Detective Chacon lacked probable cause to

search his vehicle. He points to several reasons not to rely on M s. Echeverria’s

statements to the police: (1) she stated that she did not want drugs in their home,

so it is uncertain how she would know about drugs in the vehicle; (2) she said

only that drugs were “usually” in the vehicle; (3) the officers had no license

number or other specific description of the Honda; (4) the officers had no reason

to believe she was credible; (5) the information corroborated by the officers’

observations was not in itself incriminating; and (6) at least part of her

information was incorrect.

      Probable cause exists w hen there is a “fair probability” that contraband is

in the car to be searched. United States v. Stephenson, 452 F.3d 1173, 1177 (10th

Cir. 2006). Probable cause is a “commonsense, nontechnical conception[] that

deal[s] with the factual and practical considerations of everyday life on which

                                         -5-
reasonable and prudent men, not legal technicians, act.” Ornelas v. United States,

517 U.S. 690, 695 (1996) (internal quotation marks omitted). An informant's

veracity, reliability, and basis of knowledge are all relevant factors. See Illinois

v. Gates, 462 U.S. 213, 230 (1983). But none is dispositive. As we have said:

      [A] deficiency in one factor may be compensated for, in determining
      the overall reliability of a tip, by a strong showing as to the other, or
      by some other indicia of reliability. Specifically, when there is
      sufficient independent corroboration of an informant's information,
      there is no need to establish the veracity of the informant.

United States v. Artez, 389 F.3d 1106, 1111 (10th Cir. 2004) (internal citations,

quotation marks, and brackets omitted).

      By this standard, we believe there was probable cause. Three of

M r. Echeverria’s reasons not to rely on his wife’s statement have little merit.

First, contrary to M r. Echeverria’s argument on this point, one can presume as a

matter of commonsense that a wife likely knows the intimate details of the life of

the husband with whom she resides. Second, because “probable” cause is not a

certainty, it is enough that the witness says what “usually” can be found. Third,

the Honda was more than adequately identified; the presence of another

identically colored Honda at the residence was hardly likely.

      There is greater merit to M r. Echeverria’s contention that the officers had

insufficient reason to believe that his wife was credible. There was no evidence

of a prior relationship between her and any of the officers from which they could

have measured her veracity. On the other hand, there was no reason to believe

                                          -6-
that she was hostile to M r. Echeverria; indeed, apparently they were living in the

same home. W e also believe that her involvement with drugs made it more likely

that he had a similar involvement.

       Under these circumstances, not much corroboration of her account would

be required. In our view, it was enough that she accurately reported where the

described vehicle would be and that there would be a gun inside it. She may have

been mistaken in saying that M r. Echeverria was home at the time, because the

officers did not find him there. But the explanation for this “error” may well

have been that he was the person seen driving off before Detective Chacon

arrived at the home. Although this is a close case, we affirm the district court’s

determination of probable cause.

III.   C ON C LU SION

       W e AFFIRM the judgment of the district court.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




                                         -7-
