TX1: Standing in a flowerbed to look in kitchen window violated curtilage

Officers entry onto the curtilage to stand in a flowerbed and look in a window was an unreasonable search. Even assuming some such entries are permissible along the sidewalk from the street, this was away from the path, and it was clearly curtilage. The court relies on Jardines. Sayers v. State, 2014 Tex. App. LEXIS 3351 (Tex. App. – Houston (1st Dist.) March 27, 2014):

Here, the officers observed appellant’s activities inside his house while standing in the flowerbed located directly underneath his kitchen window. This flowerbed, although visible to the public from the street bordering the north side of the house, was not located on the same side of appellant’s house as either the front or back door to the home and was not located next to a sidewalk or other walkway. There is no indication that this flowerbed was used for any purpose other than to hold plants and flowers, and there is no indication that the public was invited to stand in or walk through this flowerbed. We conclude that the flowerbed is clearly part of the area “immediately surrounding and associated with the home” and falls within the curtilage of appellant’s home, thus entitling it to the same Fourth Amendment protection afforded to appellant’s home itself. See Jardines, 133 S. Ct. at 1414 (stating that person’s Fourth Amendment right to be free from government intrusion in own home “would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity”). The flowerbed under appellant’s kitchen window is therefore a constitutionally protected area.

. . .

This implied license granting permission to police officers to enter onto the curtilage to contact the resident exists so long as the resident has not manifested an intent to restrict access to his home, such as by locking a gate or posting signs indicating that the officer is not invited, and the officer “does not deviate from the normal path of traffic” to the front or back door of the house. See Washington, 152 S.W.3d at 215 (citing Buchanan v. State, 129 S.W.3d 767, 773 (Tex. App.—Amarillo 2004, pet. ref’d)); see also Duhig v. State, 171 S.W.3d 631, 637-38 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (citing with approval cases from other intermediate appellate courts holding that approaching back door of home is permissible and does not constitute search when officers have first tried front door and received no answer). A license to enter onto property is limited to a particular area of the property. See Jardines, 133 S. Ct. at 1416. Thus, an implied license to approach the front door via the front walkway to contact the resident does not extend permission to walk up to a window located on a separate side of the house to attempt to contact the resident. See id. (“The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose.”).

In this case, a small yard separated the northern side of the house from the street where the officers arrested Sucarichi. Although the officers could see a flickering light and the silhouettes of two men through the kitchen window from their position in the street, they were unable to positively identify the men or determine what they were doing. The officers made no attempt to contact appellant and Scalia by using the front or back doors to appellant’s residence. Instead, after deciding to accommodate Sucarichi’s request to leave her keys with either appellant or Scalia, Officer Becker approached the kitchen window, which was located on a different side of the house from either the front or back doors, which were located on the western and eastern sides of the house, respectively. No pathways led to this window, no pathways ran next to this window, and the officers had to stand in a flowerbed located directly under the window in order to see inside. One of the officers was not tall enough to see inside the window.

Unlike a window located next to a front door, for example, this window was not located near any established pathway to approach appellant’s house. …

There was a prior opinion at Sayers v. State, 2013 Tex. App. LEXIS 14436 (Tex. App. – Houston (1st Dist.) Nov. 26, 2013), and this is the opinion on rehearing coming to the same conclusion.