S.D.Fla.: While one’s roof is on the curtilage, it lacks a REP

Defendant’s roof was not a place with a reasonable expectation of privacy despite the fact it was on the curtilage (decided in the context of an ineffective assistance of counsel claim). Davis v. United States, 2020 U.S. Dist. LEXIS 201562 (S.D. Fla. Oct. 27, 2020):

Under the facts of this case, the question of whether the roof was within the curtilage of the home is not controlling in determining whether a Fourth Amendment violation occurred. In order to show that a search violated the Fourth Amendment, a party must establish both a subjective and an objective reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Even had counsel argued it, counsel would not have been successful in arguing that Movant had an objectively reasonable expectation of privacy in the roof of his home. “That the area is within the curtilage does not itself bar all police observation.” California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986). “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). The roof of Movant’s home, even if it were within the curtilage, is, like any other exterior of the home, not within the areas where one would expect privacy, especially as here where the roof is easily observable from an adjacent home. See, e.g., United States v. Broadhurst, 805 F.2d 849, 856 (9th Cir. 1986) (aerial surveillance of marijuana plants through translucent roof did not amount to “search” which would have required warrant under the Fourth Amendment).

Furthermore, there existed both probable cause and exigent circumstances to search the roof for the firearm. It is well settled that an exception to the search warrant requirement applies where exigent circumstances make the needs of the police so compelling that a search without a warrant is objectively reasonable. See Kentucky v. King, 563 U.S. 452 at 460, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011). One of those exigent circumstances is to prevent the imminent destruction of evidence. Id. Here the police had probable cause when they observed Movant toss a firearm onto the roof. The potential destruction of either DNA evidence from the firearm or the chance that a resident of the home might retrieve the firearm provided the exigent circumstances.

Movant cannot establish that the outcome of his appeal would have been different even if appellate counsel had argued that the roof was a part of the curtilage. As a result, his claim that appellate counsel was ineffective fails.

This entry was posted in Curtilage, Reasonable expectation of privacy. Bookmark the permalink.

Comments are closed.