Knock and talk straying from front door violated curtilage

Officer’s trespass on the curtilage led to observations that made it into a search warrant application. The trial court erred in not granting the motion to suppress. This started as a knock and talk, but the officer strayed from the front door. State v. Peterson, 2007 Ohio 5667, 173 Ohio App. 3d 575, 879 N.E.2d 806 (2d Dist. 2007):

[*P26] It is important to note that the police were at Peterson’s residence initially to execute a “knock and advise” and not to execute a search warrant. The purpose of the knock and advise program, as stated in the General Order of the Dayton Police Department, is to notify the resident or residents of the structure that a complaint has been received alleging drug activity at the premises. (See Def. Ex. C.) This, of course, can be accomplished by going to the front door of the residence and knocking and advising the resident of the purpose of the visit. In executing a search warrant, the warrant normally authorizes officers to enter the residence, the surrounding curtilage, and any detached garage or outbuildings listed in the warrant.

[*P27] The State argues that we have held that police officers are privileged to be on private property while in the performance of their official duties, citing State v. McClain (2003) Mont. App. 19710, 2003 Ohio 5329. In that case, however, the observations of the police officer were made through the passenger window of a car parked in a front driveway accessible to the public.

[*P28] In this matter, Detective House testified at the suppression hearing that the window he looked through was on the side of the appellant’s residence, which he accessed by walking on the lawn. (Tr. 82.) Further, House testified that there was no driveway or sidewalk by the window and that he was standing a few feet from the side of the house. (Tr. 83, 128.) Similar to the officer in Lorenzana, House made his observations while standing on land not expressly open to the public.

[*P29] Citizens have an objectively reasonable expectation that police will not enter onto the side yards of their homes in the night time and peer into their basement windows. We agree with the appellant that Detective House’s observations were made while he was trespassing on the curtilage of Peterson’s property. As such, the evidence recovered by the police during the warrantless and warrant searches was the product of the initial unlawful police conduct. The evidence was the “fruit of the poison tree” and must be suppressed. Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

Specific items listed in the particularity clause followed by a catch all phrase does not make the warrant impermissibly overbroad. In addition, a plain view may properly occur that is separate from the overbreadth issue. State v. Juwan, 2007 Ohio 5651, 173 Ohio App. 3d 373, 878 N.E.2d 694 (2d Dist. 2007).

Knock-and-announce requirement was not violated, but, if it was, Hudson would apply and the evidence would still not be excluded. A violation of state law, as opposed to the state constitution, does not mandate exclusion. State v. Lam, 2007 Ohio 5664, 2007 Ohio App. LEXIS 4984 (2d Dist. October 19, 2007).*