Tuesday, May 1st, 2018

Second Circuit Reverses Denial of Suppression Motion, Clarifies Scope of Curtilage

Today the Second Circuit reversed the denial of a motion to suppress guns that police found adjacent to a shed in the backyard of a defendant’s home. United States v. Alexander, No. 16-3708 (2d Cir. 2018) (Lynch, Carney, Hellerstein (SDNY)) (appeal from Amon, J., EDNY). This area, the panel held, was curtilage and thus considered part of the home for Fourth Amendment purposes. In so holding, the panel clarified that Florida v. Jardines, 569 U.S. 1 (2013), abrogates at least three Second Circuit opinions suggesting that driveways and other publicly accessible areas fall outside the curtilage of a home. The opinion in Alexander, which this office litigated, is available here.*

The defendant in Alexander lived in a narrow house, on a property fenced on three sides but open to the street. The property included a driveway that extended past the house, with a shed at the end. One night the defendant was drinking outside with friends, including two people idling in a car. Two plainclothes officers stopped the group, purportedly observed someone in the car conceal something, and ultimately found a bag of cocaine in the car. Meanwhile, one of the officers allegedly saw the defendant pick up a bag as he was walking down his driveway, toward the back of the house, to put away some vodka he had been drinking. The officers searched the backyard, and found the bag resting on a plastic chair by the front corner of the shed. The bag contained two guns.

The shed-adjacent area where the bag was found, the panel determined, was curtilage and thus protected by the Fourth Amendment against searches without probable cause. In reaching this determination, the panel applied the following factors set forth in United States v. Dunn, 480 U.S. 294, 297 (1987): [1] “the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.” Id. The panel’s application of these factors, however, was informed by Jardines, where the Supreme Court held that the porch of a home was part of its curtilage. Of the four Dunn factors, only the fourth–steps taken to protect the area from observation–weighed against the defendant. As Jardine makes clear, however, this factor is not dispositive. In Judge Lynch’s words, writing for the panel, “it is not necessary to turn a residential property into a fortress in order to prevent the police from ‘trawl[ing]’ one’s yard.” Slip op. at 17 (quoting Jardines, 569 U.S. at 6).

Additionally, the panel observed that Jardines “undercuts certain of” the Circuit’s precedents “that suggest that public viability or public access may definitively take an area out of the curtilage” of a home. Slip op. at 11. The panel identified three such precedents containing language incompatible with Jardines: (1) Krause v. Penny, 837 F.2d 595, 597 (2d Cir. 1998); (2) United States v. Reyes, 283 F.3d 446, 465-68 (2d Cir. 2002), and (3) United States v. Hayes, 551 F.3d 138, 147 (2d Cir. 2008). (The panel also distinguished each of these cases on the facts.)

Judge Hellerstein wrote a concurring opinion, proposing that “it is important, when defining curtilage, whether a police officer’s reasonable suspicion could justify the search.” Judge Hellerstein did not contest the panel’s observation, however, that this approach is foreclosed by precedent.

*Congratulations to FDNY’s Allegra Glashausser, who argued the case on appeal, and Michael Brown II, who litigated the case in the district court!



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