Expectation of privacy on back porch at 11:30 p.m.

(Website was bogged down this morning for some unknown reason.)

Officers on plaintiff’s back porch at 11:30 p.m. were clearly on the curtilage and not open fields, and they were not permitted to be there. The plaintiff had a subjective and reasonable expectation of privacy in his hown as to a view in the back door at that hour. Young v. City of Radcliff, 561 F. Supp. 2d 767 (W.D. Ky. 2008):

The first question under Katz is whether Young manifested a subjective expectation of privacy in the object of the challenged search. Burton and Smallwood’s testimony indicates that they were peering into the interior of Young’s home through his glass back doors, effecting a visual search of the interior of Young’s home. The Supreme Court has described observation of the interior of the home as “the prototypical … area of protected privacy.” Kyllo, 533 U.S. at 27. Indeed, “[a]t the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Id. at 31 (quoting Silverman v. United States, 365 U.S. 505, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961). It is hardly remarkable, therefore, to conclude that Young could subjectively expect privacy when he was inside a room at the back of his home at 11:30 at night. Cf. Ciraolo, 476 U.S. at 215 (quoting Katz, 389 U.S. at 361) (Harlan, J. concurrence)) (noting, “a man’s home is, for most purposes, a place where he expects privacy …”).

The second part of the Katz inquiry examines whether this expectation was one society recognizes as reasonable, or in other words “what the person wanted to protect his privacy from, for example, non-family members … strangers passing by on the street.” Widgren, 429 F.3d at 579 (citation omitted). The Fourth Amendment protection of the home does not “require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible.” Ciraolo, 476 U.S. at 213.

Officers had detailed and corroborated information about defendant’s drug activity from a CI and that gave reasonable suspicion to stop him under their collective knowledge. United States v. Motley, 561 F. Supp. 2d 1174 (D. Nev. 2008).*