CA2: Def’s yard in Staten Island was curtilage; there is curtilage even in an urban area

A yard of house in Staten Island was search by NYPD at 3:30 am. The Second Circuit finds the search violated the curtilage. The yard qualifies under Dunn and Jardines. United States v. Alexander, 2018 U.S. App. LEXIS 11093 (2d Cir. May 1, 2018):

Mindful that we need not mechanically apply these factors [from Dunn], we hold that the area from which the guns were recovered was part of the curtilage of Alexander’s home. Only the fourth Dunn factor weighs against Alexander, and that factor is not dispositive, particularly where, as here, the search took place just steps from the home in an area partially used for intimate activities.

As suggested above, Jardines strongly reinforces our conclusion and our weighing of the Dunn factors. In that case, the Supreme Court observed that a property owner’s Fourth Amendment rights would be “of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity.” Jardines, 569 U.S. at 6. A porch, like the area in front of the shed, abuts the home itself, and thus, here as in Jardines, the first Dunn factor of “proximity” strongly favors a finding of curtilage. A porch is not necessarily within a closed area, and, like the driveway in this case, is even sometimes subject to a limited license for visitors approaching the home in order to seek entry. Therefore, here as in Jardines, the absence of a fence marking off one part of the property as more private than the rest does not preclude a finding of curtilage. Next, both a porch and the immediate back or side yard area abutting a house, especially on a small property like Alexander’s, are commonly used for family activities, even though they may also be accessible, to a limited degree and for particular purposes, to visitors, including strangers such as salespersons or indeed police officers. The area here is thus comparable to the porch in Jardines with respect to the third Dunn factor. And a porch, like Alexander’s driveway, is typically open to observation from passing pedestrians, even ones with no legitimate occasion to enter it. The fourth Dunn factor, then, though it weighs against a finding of curtilage, carries no more weight here than in Jardines.

Accordingly, although there is, as Dunn explained, no mechanical formula for balancing the factors relevant to the curtilage inquiry, the Dunn factors in this case line up closely with the same factors as applied to the property in Jardines, which the Court found to be a paradigmatic example of curtilage.

Jardines also helps illustrate a further distinction that is relevant to the significance of the fourth Dunn factor. The government places some emphasis on the fact that the area in question was visible from the street, which, we agree, weighs against a curtilage finding. But whether the general area was visible from the public sidewalk, the evidence that was seized, and even the bag that the police searched for, were not. We would have a very different case if the officer had observed the guns or other incriminating evidence from the sidewalk — just as Jardines would have been different if the officers had observed marijuana plants in plain view on the porch. Such an observation would give the officers probable cause to obtain a search warrant, and, depending on the circumstances, an exigency of some kind might permit a warrantless entry onto the curtilage and seizure of the evidence. But absent such cause, the officers in Jardines were not permitted to enter onto the porch for the purpose of conducting a search, even though the porch itself was visible from the street.

We do not suggest that nothing can be said on the other side of this argument. Alexander certainly could have taken steps — placing a fence at the front of his property, erecting walls to prevent public observation of the area in front of the shed — that would have resolved the curtilage question even more clearly in his favor. But it is not necessary to turn a residential property into a fortress in order to prevent the police from “trawl[ing]” one’s yard, Jardines, 569 U.S. at 6, unencumbered by the Constitution.

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