Second Circuit Reverses Conviction Due to Unlawful Curtilage Search
On May 1, 2018, the Second Circuit (Lynch, Carney, Hellerstein D.J. (concurring)) reversed the district court’s denial of Defendant Robert Alexander’s motion to suppress guns found after a search of a bag in front of a shed in Alexander’s backyard. The panel closely reviewed Supreme Court case law on whether certain areas near the home are considered the “curtilage,” and thus are protected to by the Fourth Amendment. The decision also includes a notable concurrence from Judge Hellerstein, who argued for extending Terry v. Ohio’s “stop and frisk” doctrine to include searches of areas near the home based on reasonable suspicion of wrongdoing.
On the night of Alexander’s arrest, he was standing in the front yard of his small home in Staten Island with a bottle of vodka. Around 3:00 a.m., two police officers arrived and approached two people in a car blocking Alexander’s driveway. They observed a man in the car attempt to put in his pants what appeared to be a baggie of drugs and, after removing the man from the car, found a bag of cocaine in his hand.
The officers then saw Alexander walk down his driveway toward the backyard, pick up a bag from next to the house, and then disappear into the backyard. Alexander returned less than a minute later without the bottle or the bag. An officer walked down the driveway to investigate and found the bottle next to the house’s back door. After returning to the front yard and frisking Alexander, the officer went into the backyard and found the bag on a plastic chair by the front of a shed at the end of the driveway. The officer saw the butt of a gun sticking out of the bag and, on closer inspection, found two guns inside.
The officers arrested Alexander, who was charged with being a felon in possession of a firearm and possessing a defaced firearm. Alexander moved to suppress both the vodka bottle and the guns as having been recovered following an unlawful search of the curtilage surrounding his home in violation of the Fourth Amendment. The district court held that only the bottle was in the curtilage, and so denied the suppression motion as to the guns. Alexander was convicted after a trial and sentenced principally to 51 months’ imprisonment.
The Majority Opinion
The Government conceded both before the district court and on appeal that the officer did not have probable cause or other exigency to justify the search of Alexander’s backyard and the area around the shed. As such, the only issue on appeal was whether the district court correctly concluded that the area in front of the shed was not in the house’s curtilage. If the area was in the curtilage, then the officer conducted an illegal warrantless search in an area protected by the Fourth Amendment.
The majority explained that the key inquiry was whether the search occurred in the curtilage—which the Supreme Court has described as the “area adjacent to the home and to which the activity of home life extends”—or in an “open field” beyond the ambit of the Fourth Amendment. Two Supreme Court decisions serve as guideposts in making this determination.
In United States v. Dunn, 480 U.S. 294 (1987), the Supreme Court analyzed a search of a barn on defendant’s private property, located 50 yards from a fence surrounding his home. In determining whether the barn was within the curtilage of defendant’s home, the Court weighed four factors: the proximity of the barn to the home, whether the barn was within an enclosure surrounding the home, how the barn was used, and whether defendant had taken steps to protect the barn from outside observation. The Court held that all four factors supported a conclusion that the barn was in an open field and not the curtilage—the barn was far from the home, it was outside the fence enclosing the home, there was evidence that the barn was not being used for “intimate activities of the home,” and defendant had not protected the farm from outside observers.
Twenty five years later, in Florida v. Jardines, 569 U.S. 1 (2013), the question for the Supreme Court was whether an officer invaded the curtilage of defendant’s home when he stood on the front porch with a drug-sniffing dog. The Court did not reference the Dunn factors at all, and instead quickly concluded that the front porch was part of the curtilage because it is “the classic exemplar of an area adjacent to the home and to which the activity of home life extends.” The Court so held even though the front porch was not fenced off or hidden from public view.
The Second Circuit considered the Dunn factors and determined that they generally weighed in Alexander’s favor: the area in front of the shed was close to the back of Alexander’s home, a fence in the backyard partially enclosed the shed and the house, and Alexander used the area for recreation activities. The panel relied on Jardines in concluding that the area was thus part of the curtilage even though it was not fully enclosed and was viewable from the sidewalk. The panel observed that a contrary holding would have required Alexander to turn his property “into a fortress in order to prevent the police from trawling” his backyard. Because the search was unlawful, the panel vacated Alexander’s conviction and remanded.
The Concurring Opinion
Judge Hellerstein wrote a concurring opinion, which the majority characterized as “provocative and novel.” Judge Hellerstein, who is a district judge in the Southern District and who sat by designation, wrote that the officer may have had reasonable suspicion to conduct the search, and observed that the Supreme Court held in Terry v. Ohio, 392 U.S. 1 (1968), that reasonable suspicion is enough to permit a limited “stop and frisk” search of a person. Since the Fourth Amendment makes no distinction between persons and homes, Judge Hellerstein determined that reasonable suspicion should likewise justify a search “in the grey area of curtilage.” Judge Hellerstein advocated for a “sliding scale” approach for searches around the home, rather than the “binary choice” between open field and curtilage. But Judge Hellerstein concurred in the decision because the Government had conceded that the officer lacked even reasonable suspicion. The majority noted this fact, which left the issue raised by the concurrence “not properly before” the Court. The majority also stated that the concurring opinion’s proposal “is foreclosed by governing precedent . . . and has no basis in existing Supreme Court law regarding property searches.”
The majority opinion is a thorough and scholarly review of the law of “curtilage searches.” Although the doctrine might sound technical to a layman, it actually is meant to embody a common-sense and widely held notion that just as a person’s home is his or her castle and therefore protected from warrantless searches, the curtilage to a person’s home is likewise protected. The opinion takes the facts as if presented in a law school exam hypothetical and compares them to the leading Supreme Court cases to reach its decision. Some types of curtilage searches are easy to analyze—like the search of a front porch in Jardines—and do not require a close, multi-factor analysis. Others, such as the driveway and backyard at issue in this appeal, are harder and require more extensive analysis.
The concurring opinion’s proposal for how the Fourth Amendment might protect homes is provocative. As the majority points out, it is hard to read Jardines as suggesting anything other than providing absolute Fourth Amendment protection to the curtilage. There has been ample debate about whether the Terry decision permits a narrow intrusion that serves a vital crime-fighting function, or erodes basic privacy interests and invites discriminatory practices by introducing further ambiguity in an area of the law that demands bright-line rules. On a policy level, there is probably little appetite to permit more searches that are similar to stop and frisks. Moreover, as the majority decision explains, the “right of a man to retreat into his home and there be free from unreasonable governmental intrusion” is a right that is at the “very core” of the Fourth Amendment. At least for now, there is no indication that the Supreme Court will read the Fourth Amendment to limit this core protection in order to permit “curtilage frisks.”