Wednesday, December 24th, 2008

Dogged Determination

United States v. Hayes, No. 07-0063-cr (2d Cir. December 24, 2008) (Miner, McLaughlin, Pooler, CJJ)

On the morning of September 3, 2002, Derrick Hayes overdosed on cocaine. After he was put in an ambulance, his girlfriend gave local police officers permission to search the house. They found evidence suggesting that Hayes was a large-scale drug trafficker, so they suspended the search and made arrangements to obtain a search warrant. One of the officers, while waiting for the warrant, released a drug-sniffing dog, “Kilo,” from the car, where it had been confined for several hours. During a Frisbee came with the officer in Hayes’ front yard, the dog alerted. The officer encouraged the dog to continue investigating, and it ran around Hayes’ house, toward the back of a detached garage. From an area of thick brush, about sixty-five feet from the house, and near the border with a neighbor’s property, the dog retrieved a black bag. Without waiting for the warrant, the officer opened the bag and found about fourteen ounces of cocaine.

In the district court, Hayes unsuccessfully alleged that his Fourth Amendment rights had been violated. The circuit affirmed.

The Dog Sniff

Hayes first argued that Kilo’s sniff was a warrantless search of his property. The Second Circuit has held that a canine sniff outside the door of a private residence – unlike one at an airport or other public area – is a “search,” and thus subject to the constraints of the Fourth Amendment. Hayes argued that this rule should apply here, but the court disagreed. The contents of the black bag that Kilo detected were not inside his residence; they were outside, in the brush some sixty-five feet away. Hayes had no legitimate expectation of privacy in “the air in [his] front yard.”


In addition, the area where the bag was found was not part of the curtilage of Hayes’ home. The court held that Hayes did not have a reasonable expectation of privacy in the area, even assuming that Kilo passed through the curtilage en route to the black bag. “Such a transient trespass does not implicate the Fourth Amendment where the incriminating evidence is discovered outside the curtilage.”

The court then gave a detailed analysis of the curtilage question itself. This issue is governed by Fourth Amendment principles, not common law property factors, and there is a four-factor test: the proximity of the area to the main residence; any enclosure of the area; the use of the area; and steps taken to protect it from view. See United States v. Dunn, 480 U.S. 294, 300 (1987).

As to proximity, the sixty-five-foot distance between Hayes’ house and the brush area weighed against a proximity finding. While in some cases such a distance could satisfy the proximity factor, here the brush was a border and served as the fringe of Hayes’ property in relation to his home.

Hayes conceded that there was no enclosure, but argued that the nature of his property should exempt him from this requirement. The court disagreed because the purpose of the enclosure factor is to determine those areas the homeowner intended to keep private.

As for use, the only use Hayes made of the area was to hide the black bag. It was of no moment that Hayes expected that the area would be immune from police scrutiny. “A finding of curtilage cannot be supported absent evidence in the record that the area was designated and used for other intimate purposes that one might ordinarily conduct inside of one’s home.”

Finally, the court found that Hayes took no meaningful steps to shield the area in question from observation. There was no fence or other structure, and the general area was visible from the street.

The Opening of the Bag

The court also rejected the claim that the officer should have waited for the warrant before he opened the bag. Since there was no expectation of privacy in the “non-curtilage area” where the bag was recovered, there was likewise no expectation of privacy in the bag itself.

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