CA9: Failure to raise a clearly winning 4A curtilage argument was IAC

Defense counsel was ineffective for not raising a winning Fourth Amendment curtilage argument. As to the co-defendant, however, he lacks standing, so no IAC as to him. United States v. Chong, 2024 U.S. App. LEXIS 20467 (9th Cir. Aug. 14, 2024). From the court’s summary:

The panel affirmed the district court’s denial of Tac Tran’s post-conviction motion under 28 U.S.C. § 2255, reversed the denial of Harson Chong’s § 2255 motion, and remanded for the district court to grant Chong § 2255 relief.

Chong and Tran alleged that they received ineffective assistance of counsel because their counsel failed to object to the search of Chong’s home on Fourth Amendment grounds. They claimed that a Los Angeles County Sheriff’s Department deputy entered the curtilage of Chong’s home without a warrant or other proper justification. And because trespassing the curtilage led to spotting Tran with a baggie of drugs and the eventual discovery of guns, money, and more drugs in the home, they asserted that all the evidence should have been suppressed. Whether they were right depended on where the sheriff’s deputy was standing when he saw the drugs in the garage. On remand from this court, the district court found that the deputy was standing just one foot from the home.

The panel concluded that, at that distance, it had no doubt that the deputy physically trespassed onto the curtilage. And the deputy’s unconventional manner of entry onto the property objectively manifested his investigatory purpose, confirming that this trespass was unlicensed. The panel held that without a warrant, consent, or other exigency, this was unreasonable under the Fourth Amendment under both the common-law trespassory test and the reasonable-expectation-of-privacy test, and the unreasonableness was obvious, especially in the wake of the Supreme Court’s seminal curtilage decision in Florida v. Jardines, 569 U.S. 1 (2013). The panel further held that the search could not be justified under the good faith exception to the exclusionary rule. For no strategic reason, defense counsel failed to make this clearly winning Fourth Amendment argument. Accordingly, Chong’s counsel was ineffective in failing to move to suppress the evidence found in his house. But because Tran lacked standing to challenge the search, the panel saw no ineffective assistance on his counsel’s part.

Concurring in full with the per curiam opinion, Judge Bumatay wrote that the government was incorrect in arguing that the common-law trespass thread of the Fourth Amendment was a relatively new phenomenon and it therefore was excusable for Chong’s counsel to miss it. Judge Bumatay wrote that protection against trespassing on curtilage is deeply rooted in our nation’s history, and so it should have been obvious even before more recent Supreme Court cases’ articulation of the Fourth Amendment right that counsel should have brought a motion to suppress.