E.D.Ky.: Trash search entered constitutionally protected area, and there’s no trash search exception to curtilage

The officers entered a constitutionally protected area of defendant’s property for a trash seizure. The court also declines to adopt a “trash exception” to curtilage that trash expected to be picked up later is not protected. United States v. Gregory, 2020 U.S. Dist. LEXIS 200593 (E.D. Ky. Oct. 28, 2020):

The cases cited by the United States do not convince the Court that the areas at issue in this case fall beyond the curtilage of Gregory’s home. These cases simply demonstrate the principle espoused in Dunn that the four curtilage factors do not “produce[] a finely tuned formula that, when mechanically applied, yields a ‘correct’ answer to all extent-of-curtilage questions.” Dunn, 480 U.S. at 301. The question of whether a particular area falls within the curtilage of a home must be answered on a case-by-case basis and no single factor is determinative. Under the facts of this case, and applying a commonsense approach with all Dunn factors considered, the area fifteen feet from Gregory’s house, which can be characterized as the functional equivalent of a carport area, is within the curtilage of Gregory’s home. See Morgan, 903 F.3d at 561 (under a “commonsense approach [to the Dunn factors], the area five-to-seven feet from [the defendants’ home] was within the home’s curtilage” notwithstanding that there was no fence or enclosure).

Furthermore, to the extent it is necessary to distinguish this case from the driveway cases cited by the United States, the Court notes that the areas in question on Gregory’s property do not abut a public sidewalk or alley; the unique landscape of Gregory’s property provided a visual barrier to passersby; the area where the trash truck parked and where the light pole was located were behind the front perimeter of the house, the boat parked in front of the house, the swing set, and the storage building; the driveway did not lead to the front door of the home; the area surrounding the light pole was certainly not a path of entry to the home; and Gregory took significant steps to flag his curtilage and ward off visitors, including a multitude of “No Trespassing,” “Private Property,” and “Beware of Dog” signage, as noted above.

In sum, based on the unique facts of this case as developed at the evidentiary hearings, each of the four Dunn factors weighs in favor of finding that the area where the trash truck parked and the area surrounding the light pole were within the curtilage of Gregory’s home. The Court finds that this area is “so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Dunn, 480 U.S. at 301. Accordingly, Flynn and Officer Neal physically intruded upon the curtilage of Gregory’s home, a constitutionally protected area.