Enty into side yard to look through window was a search

Officer’s entry onto defendant’s side yard to look through the slats in the blinds in the window was a search not justified by any exigency under Brigham City. People v. Gemmill, 162 Cal. App. 4th 958, 76 Cal. Rptr. 3d 410 (3d Dist. 2008):

Defendant contends Deputy Gassaway conducted a search within the meaning of the Fourth Amendment when he walked around the perimeter of the home and looked through the side window. We agree.

After Deputy Gassaway heard no response from his knocks and yells at the front door, he walked around the right (north) side of the house, continuing to knock on the windows and announce his presence. There was no sidewalk but no fence either. It was not uncommon for people to walk by the north side of the house. People would walk to residences from the north side, and there was a “little wooded area kids play[ed] in.” A bedroom window was open. He continued to knock and announce but heard nothing. Deputy Gassaway walked around the back of the house until he came to a window on its left (south) side. The blinds were closed, but there was a five to six inch gap in the slats. He could see inside the living room, where he saw the situation that led him to enter the house without a warrant.

It is reasonable to expect privacy in the home; this includes side windows not accessed by parts of the yard to which the public is expressly or impliedly invited. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 638.) In Lorenzana, police officers received a tip that drug dealing was taking place at Lorenzana’s address and discovered evidence of drug dealing by looking through a side window without a warrant, leading to convictions of those in the house. (Id. at pp. 629-631.) The facts of Lorenzana are instructive: “The dwelling at the designated address, a single family house, was set back about 70 feet from the sidewalk. The front door to this dwelling did not face the public street on the north, but instead was on the west side of the building. A rear door opened on the south side. Officer Myers testified that access to the house was from the west. There were no doors or defined pathways on the east side of the house, and a strip of land covered with grass and dirt approximately six to ten feet in width separated the east side of the dwelling from an adjacent apartment driveway. [P] Upon arriving at the address, Sergeant Myers circled behind the apartment, walked down the adjacent driveway, crossed onto the strip of petitioner Lorenzana’s property, and positioned himself at a window on the east side of the house. The window had been fully closed. The window glass was intact. The window shade had been drawn, but a gap of about two inches had been left between the window sill and the bottom of the shade. Gaps of about one inch or so had been left on each side of the shade, but a thin curtain also hung down on the sides of the window. [P] Sergeant Myers testified that he had trespassed onto petitioner Lorenzana’s property because he could not see into the house from the adjacent driveway or from the street. In fact, he could not see into the dwelling until he was within five or six inches of the window. The officer further testified that he knew that the property onto which he trespassed was not a common-use area but belonged to the dwelling …. Sergeant Myers did not have permission to go upon the property.” (Id. at p. 630.) No substantial evidence supported an implied invitation to be on the east side of the house where the officer looked through the window. (Id. at p. 636.) The court rejected the argument that openings in the window somehow reduced the expectation of privacy, reasoning that “by drawing the window shade petitioner Lorenzana exhibited a reasonable expectation to be free from surveillance conducted from a vantage point in the surrounding property not open to public or common use.” (Ibid.) The court set aside the trial court’s denial of the petitioners’ motions to suppress. (Id. at pp. 640-641.)