S.D.W.Va.: Court applies Jardines to entry to curtilage on 911 call and finds it reasonable

The officer responding to a 911 call of a shirtless man in dreds swinging a stick in February could enter defendant’s gate to talk to him. Inside the gate, it appeared defendant was seriously high on something and had white powder smeared around his nose and mouth. His furtive movement justified the officer approaching. The court applies Jardines to the entry onto the curtilage and finds it reasonable under all the circumstances. A protective sweep of the house was also reasonable under all the circumstances. United States v. Woods, 2013 U.S. Dist. LEXIS 186973 (S.D. W.Va. April 8, 2013):

Following defendant’s reach out of Deputy Ellison’s view, Deputy Ellison called for backup. For the approximately five minutes it took Patrolman Gibson to respond, defendant continued to act bizarrely, notably by pumping his foot and being generally unresponsive to questions. Once Patrolman Gibson arrived, Deputy Ellison stated that he felt less nervous than when the defendant reached for something on the porch floor and Deputy Ellison was alone. Nevertheless, Deputy Ellison remained worried for both his and Patrolman Gibson’s safety, given defendant’s continued bizarre behavior. With Patrolman Gibson on the scene to watch the defendant as Deputy Ellison scaled the front porch steps, Deputy Ellison scaled the steps and reached the porch floor. Lying on the floorboards where defendant had previously reached were three handguns.

The court cannot ignore the Supreme Court’s latest pronouncement in Florida v. Jardines. Defendant’s front porch is unquestionably part of the curtilage of his home and, accordingly, receives the same Fourth Amendment protection. Moreover, while Deputy Ellison certainly stayed within the scope of an implied license when he walked through defendant’s fence gate and to the bottom of the front porch steps, Deputy Ellison exceeded the scope of that license under Jardines when he walked up the porch steps and onto the porch to find what defendant had reached for prior to Patrolman Gibson’s arrival on the scene. As Jardines makes clear, there is “no customary invitation […] to explore the area around a home in hopes of discovering incriminating evidence.” Florida v. Jardines, 569 U.S. ___ (2013) (slip. op. at 7).

Accordingly, the court finds that Deputy Ellison’s movement up defendant’s porch steps and onto the porch floor constituted a “search” for purposes of the Fourth Amendment. Moreover, Deputy Ellison had no warrant to search defendant’s porch. Accordingly, the court also finds that Deputy Ellison’s search was presumptively unreasonable on that basis. See Kentucky v. King, 131 S. Ct. 1849, 1856 (2011).

However, given that reasonableness is the touchstone of the Fourth Amendment, id., the Government can rebut the presumption of unreasonableness by a preponderance of the evidence. See United States v. Matlock, 415 U.S. 164, 178, n. 14 (1974); see also United States v. Breit, 712 F.2d 81, 83 (4th Cir. 1983). Here, Deputy Ellison did not simply scale defendant’s front porch steps with wanton disregard for his privacy or property. Rather, as the evidence demonstrates, Deputy Ellison walked cautiously by defendant, who remained on the porch steps the entire time, with only Patrolman Gibson observing defendant’s bizarre and worrisome behavior. The evidence shows that tension and concern for officer safety never fell below a critical threshold the entire time Deputy Ellison moved up the porch steps and onto the porch. While the defendant did not reach for the porch again when Deputy Ellison walked by him, all other aspects of defendant’s behavior, particularly the fact that he had reached for the porch just minutes prior, made Deputy Ellison reasonably concerned for his, Patrolman Gibson’s, and others’ safety the entire time Deputy Ellison proceeded up the front porch steps.

Under the circumstances, the fact that the defendant did not have a gun trained on Deputy Ellison as he walked up the stairs, for example, does not remove very much concern for the threat posed to officer safety by the defendant otherwise. … Accordingly, the court finds by a preponderance of the evidence that the Government has rebutted the presumption of unreasonableness associated with Deputy Ellison’s warrantless search of defendant’s porch and, thus, the search of the front porch did not violate the Fourth Amendment.