Second Circuit: Curtilage of Home Extends to Unenclosed and Visible City Backyard
Robert Alexander lived in a narrow house on Staten Island. One night, Alexander stood with a woman in front yard holding a bottle of vodka.
Blocking Alexander’s driveway was an idle car occupied by another man and woman. After 3:00am, two plainclothes police officers, Genaro Barreiro and Daniel Golat, approached the group. When the officers approached, the man in the car attempted to put something in his pants. The officers removed the occupants of the vehicle, searched the man, and found a plastic bag containing a substance resembling cocaine.
Thereafter, Alexander announced that he was “just going to put [the liquor bottle] in the back.” Alexander walked down his driveway to the backyard, stopping to pick up a bag left next to the house. Less than a minute later, Alexander returned to the front of the house without the bottle or bag. An additional officer arrived on the scene and Officer Barreiro decided to look for the items Alexander moved.
Officer Barreiro found the liquor bottle by Alexander’s back door but did not see the bag. The officer then returned to the front yard and frisked Alexander. Officer Barreiro again walked down the driveway and into the backyard to search for the bag. This time, Officer Barreiro found the bag on a chair in front of a shed. Sticking out of the bag was the butt of a gun. Officer Barreiro opened the bag and saw two guns inside. The officers arrested Alexander and charged him with one count of being a felon in possession of a firearm and one count of possessing a defaced firearm.
Before trial, Alexander moved to suppress both the guns and the vodka bottle, arguing that Officer Barreiro violated the Fourth Amendment by searching the curtilage of his home without a warrant or probable cause. The district court granted the motion as to the bottle and denied it as to the guns, holding that the former was found on the curtilage of the house. The guns were admitted at trial and the jury convicted Alexander of one count of being a felon in possession of a firearm. Alexander was sentenced to 51 months’ imprisonment and 3 years’ supervised release. He then appealed the district court’s decision to admit the guns.
The government did not argue that there was probable cause, or even reasonable suspicion, to justify the search here. Rather, the government contended that the area in question is was an “open field” and may be investigated without warrant or exigency.
A search of a curtilage of a home without a warrant or an exception to the warrant requirement violates the Fourth Amendment. By contrast, the portion of private property that extends beyond a home’s curtilage, an “open field,” is beyond the purview of the Fourth Amendment, and can be searched without warrant. Here, the court of appeals was required to decide whether the backyard, where Office Barreiro found the guns, was part of the curtilage of Alexander’s home.
The court of appeals began its analysis by utilizing the four-factor test articulated by the Supreme Court in United States v. Dunn, 480 U.S. 294 (1987). In Dunn, the court considered whether a barn located 50 yards from a fence surrounding a ranch house was a part of the home’s curtilage. The Court found that the barn was not a part of the curtilage and listed several factors that “should” be used to resolve curtilage questions.
The first factor, proximity to the area to the home, weighed in Alexander’s favor since the yard was just a few steps from the back door. The court then looked at the second Dunn factor, whether the area is included within an enclosure surrounding the home. The court stated that while there was no fence on the street-facing side of the property where the driveway entrance was, the layout of the property did not invite visitors to walk into Alexander’s backyard. The third Dunn factor, the nature of the uses of the area, also slightly weighed in Alexander’s favor. While the area in question is open to strangers, it is an area commonly used for family, intimate activities like barbequing. The last Dunn factor, steps taken to protect the area from public observation, weighed against Alexander. Nothing prevented the public from viewing the area from the sidewalk. Still, the court found that majority of the Dunn factor’s favor the backyard’s classification as a curtilage.
The court of appeals stated that the Dunn factors are not the exclusive curtilage considerations, and considered the Supreme Court’s analysis in Florida v. Jardines, 569 U.S. 1 (2013), which did not address the Dunn factors. In Jardines, the Court was faced with a search that occurred on the front porch of the home. The Supreme Court held that the porch was part of the home’s curtilage, stating, the “area around the home is intimately linked to the home, both physically and psychologically, and is where privacy expectations are most heightened.” Like the porch in Jardines, Alexander’s backyard was not hidden from public view or closed off to the public by a fence but was intimately linked to the home. Under Jardines, the court of appeals found that Alexander’s backyard was a curtilage to his home.
In response, the government contended that the Second Circuit routinely held that “driveways do not constitute curtilage entitled to protected under the Fourth Amendment where, as here, they are unenclosed, unshielded, and visible and accessible from a public street.” The court of appeals found that, after Jardines, the government’s argument is untenable. Here, the area searched was a part of the curtilage, and the search of that area ran afoul of the Fourth Amendment.
As a result, Alexander’s conviction was vacated, and the Second Circuit reversed the denial of the suppression motion and remanded the case for further proceedings.
Read the full case: United States v. Alexander
This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.
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