VI: Code enforcement entry into backyard, despite view from street, was Fourth Amendment violation

In searching for junk cars, the Virgin Islands Waste Management Authority entered defendant’s backyard to search and photograph. The entry into the backyard, despite the observations from off the property, was without a warrant and unreasonable. Simmonds v. People, 53 V.I. 549 (2010):

But the salient question in this appeal does not concern the observations the officers made from the public road or from Simmonds’ front yard. Rather, at issue is the evidence gathered from Simmonds’ back yard: the observations the officers made after they entered the back yard and the photographs they took from that vantage point. Even if the officers, while standing in the public road or in Simmonds’ front yard, observed violations situated within Simmonds’ back yard, those observations would have merely provided probable cause, not authorization for a warrantless search of the curtilage. See United States v. Whaley, 781 F.2d 417, 419 (5th Cir. 1986) (“the mere observation of [marijuana plants] from the road or driveway would not justify entry into the home or curtilage to search or to seize property found there. That would have given probable cause to support a warrant.” (citation omitted)); Morgan v. State, 645 S.E.2d 745, 748) (Ga. Ct. App. 2007) (“the officer’s initial plain view observations from the driveway and road, in and of themselves, did not authorize the officer to then make a warrantless entry into Morgan’s backyard-a location undisputably [sic] within the curtilage surrounding the residence-and take steps culminating in the dogs there being seized and removed from the property.”).

Furthermore, even if the officers were armed with probable cause based on their permissible observations from outside the curtilage of waste in Simmonds’ back yard, a warrantless search or seizure within the back yard was “presumptively unreasonable” absent Simmonds’ consent or exigent circumstances. Karo, 468 U.S. at 717; 104 S.Ct. at 3304 (listing certain automobile searches, consensual searches and exigent circumstances as examples of the limited exceptions to the warrant requirement recognized by the Supreme Court); …. In this case, it is undisputed that Simmonds did not consent to the officers entering his back yard. In fact, prior to the warrantless entry, Simmonds told Officer Husband to leave his property. Thus, the warrantless entry into Simmonds back yard could only have been justified, if at all, by exigent circumstances. [And there wasn’t any.]