PA: Entry up 200′ driveway to inspect hit-and-run vehicle did not violate curtilage

Defendant was suspected of being involved in a hit-and-run accident with a motorized wheelchair. Police got to his house, 200′ off the road, about an hour after the incident. Their entry up the driveway to inspect the damage on his pickup truck did not violate his curtilage. The court gives an interesting analysis and approach to the curtilage argument for all to consider. Commonwealth v. Eichler, 2016 Pa. Super. LEXIS 60 (Feb. 2, 2016):

Eichler contends that Sergeant Gillingham violated his Fourth Amendment rights by entering the curtilage surrounding Eichler’s house, where Eichler enjoyed a reasonable expectation of privacy, and searching the outside of Eichler’s truck without a warrant.5 The Fourth Amendment provides in relevant part that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” “The law of search and seizure remains focused on the delicate balance of protecting the right of citizens to be free from unreasonable searches and seizures and protecting the safety of our citizens and police officers by allowing police to make limited intrusions on citizens while investigating crime.” Commonwealth v. Bostick, 958 A.2d 543, 556 (Pa.Super.2008).

5. While Eichler challenges Sergeant Gillingham’s actions under expectation-of-privacy principles, he does not challenge Sergeant Gillingham’s conduct under “property-based” standards, a separate Fourth Amendment doctrine that the United States Supreme Court has applied recently in United States v. Jones, __ U.S. __, 132 S.Ct. 945 (2012), and Florida v. Jardines, __ U.S. __, 133 S.Ct. 1409 (2013). “Property-based” analysis is “tied to commonlaw trespass.” Jones, 132 S.Ct. at 949. The home “is first among equals” in this analysis, for “at the [Fourth] Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Jardines, 133 S.Ct. at 1414 (citations omitted). The curtilage, the area “immediately surrounding and associated with the home,” is “part of the home itself for Fourth Amendment purposes.” Id. When an officer enters the curtilage, the key inquiry under the propertybased test becomes whether an “implied license” exists for the officer’s conduct within the curtilage. Id. at 1415. For example, an implied license exists for the officer to approach the house by the front path without a warrant and knock on the front door for the purpose of asking the occupant about an ongoing investigation. Id. Such conduct is permissible because it is “no more than any private citizen might do.” Id. Conversely, an officer does not have an implied license to “explor[e] the front path with a metal detector, or march[] his bloodhound into the garden before saying hello and asking permission.” Id.

Jones and Jardines indicate that defendants have the option to raise Fourth Amendment challenges under both expectation-of-privacy and property-based principles. See, e.g., Jones, 133 S.Ct. at 1417 (“the … reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test”; because officer’s conduct violated property-based test, “we need not decide whether the … investigation of Jardines’ home violated his expectation of privacy”) (emphasis in original). Here, however, Eichler restricted his Fourth Amendment challenge to expectation-of-privacy principles, so we find it inappropriate to analyze Eichler’s argument under property-based principles. “It would be improper for this Court to act as counsel for a party… [W]e must not write a party’s brief and develop the analysis necessary to support the party’s position.” Commonwealth v. Frey, 41 A.3d 605, 613-614 (Pa.Super.2012); see also Commonwealth v. Little, 903 A.2d 1269, 1272-73 (Pa.Super.2006) (“[A]ppellate review of an order denying suppression is limited to examination of the precise basis under which suppression initially was sought; no new theories of relief may be considered on appeal”).

In general, warrantless searches and seizures in a private home violate both the Fourth Amendment and Article 1, [Section] 8 of the Pennsylvania Constitution.” Commonwealth v. Gibbs, 981 A.2d 274, 279 (Pa.Super.2009). Our courts have extended this constitutional protection to the curtilage of a person’s home by analyzing “factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” Id. at 279. “Curtilage is entitled to constitutional protection from unreasonable searches and seizures as a place where the occupants have a reasonable expectation of privacy that society is prepared to accept.” Commonwealth v. Fickes, 969 A.2d 1251, 1256 (Pa.Super.2009).

We hold that Sergeant Gillingham did not violate Eichler’s Fourth Amendment rights. Although Sergeant Gillingham entered Eichler’s curtilage to inspect the truck, he had the authority to enter private property for purposes of a police investigation, and he restricted his movements to areas where visitors could be expected to go.

As stated above, the United States Supreme Court has defined the curtilage as the area “immediately surrounding and associated with the home” and has stated that the curtilage is “part of the home itself for Fourth Amendment purposes.” Jardines, 133 S.Ct. at 1414. Since Eichler parked his truck several feet from his house, it clearly was within the curtilage at the time of Sergeant Gillingham’s inspection.6

6. We note that this Court has held that driveways to private residences are not curtilage. See Commonwealth v. Simmen, 58 A.3d 811, 815 (Pa.Super.2012) (holding, where defendant’s car was parked in driveway, that driveway “was not curtilage,” so officer viewed defendant’s vehicle from lawful vantage point by walking up driveway); Commonwealth v. Loughnane, __ A.3d __, 2015 WL 7432463, *7 (Pa.Super., 11/23/15) (citing Simmen) (federal automobile exception recently adopted by Pennsylvania Supreme Court “applies to vehicles parked in driveways at private residences, because driveways are not part of a home’s curtilage, and an individual does not have a reasonable expectation of privacy over the driveway”).

We find it necessary to follow Jardines, because this Court must follow the United States Supreme Court’s interpretation of the federal Constitution. See Commonwealth v. Jemison, 98 A.3d 1254, 1257 (Pa.2014). Under Jardines, Eichler’s truck was within the curtilage, even though it also happened to be parked in his driveway. It also is possible to harmonize Simmen and Loughnane with Jardines. In Simmen, the car was parked 20-30 feet away from the defendant’s residence, id., 58 A.3d at 813, so it arguably fell outside the zone that Jardines designates as curtilage (area immediately surrounding the home). Loughnane did not specify where the [*20] vehicle was parked on the driveway, so it, too, might have fallen outside Jardines’ definition of curtilage.

This, however, does not end our inquiry, for two other principles require consideration. First, police officers have the authority to enter the curtilage for the purpose of conducting an investigation. Commonwealth v. Gibson, 638 A.2d 203, 207 (Pa.1994) (“police have the power to knock on the doors of the citizens of this Commonwealth for investigatory purposes without probable cause”) (emphasis added). Second, entry onto the curtilage generally is not a Fourth Amendment violation when the curtilage is used by the public. Cf. Gibbs, 981 A.2d at 280 (“courts which have found that the front porch constitutes curtilage have generally found no Fourth Amendment violation where the porch in question is used by the general public”); see generally LaFave, Search And Seizure: A Treatise On The Fourth Amendment, § 2.3(f) (5th ed.) (database updated October 2015) (“when the police come on to private property to conduct an investigation … and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment”).

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