In dealing with a two edged sword, the defendant successfully argued his shed was outside the curtilage and therefore not subject to the search warrant for the premises, and gets the search of the shed suppressed. (Usually, being outside the curtilage means no reasonable expectation of privacy, but it depends upon the facts.) United States v. Gilman, 2007 U.S. Dist. LEXIS 32524 (D. Haw. May 2, 2007):
4. “Every curtilage determination is distinctive and stands or falls on its own unique set of facts.” Depew, 8 F.3d at 1426. In United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987), the Supreme Court stated that questions of curtilage should be
“resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included in an enclosure surrounding the home, the nature of the uses to which the area is put, the steps taken by the resident to protect the area from observation by people passing by.”
These factors “cannot be mechanically applied, but are merely useful analytical tools to determine whether an area is to be protected from unconstitutional searches and seizures.” Johnson, 256 F.3d at 901 (quoting Dunn, 480 U.S. at 301).
5. The Government’s only argument against suppressing the evidence obtained from Gilman’s shed is that the shed falls within the curtilage of Gilman’s home and is therefore covered by the search warrant.
The misstatements in the affidavit for the search warrant were not substantial enough to deny the officer qualified immunity. There unquestionably was probable cause from observation of the plaintiff’s marijuana grow operation, albeit for medical purposes. Plaintiff’s claim of excessive force and unreasonable conduct by the officers was sufficient to survive summary judgment. Wood v. Kitsap County, 2007 U.S. Dist. LEXIS 32634 (W.D. Wash. May 3, 2007).*
Swearing match between defendant and officers goes to the police, and their testimony is found more credible that the defendant consented to the search and it was completely nonconfrontational. United States v. Espinoza-Flores, 2007 U.S. Dist. LEXIS 32573 (D. Ore. April 30, 2007).*
911 call of a battery in progress in a driveway brought officers to defendant’s house. A man in the driveway denied knowledge of any such occurrence, and he said that there were people inside. Officers went to the porch and asked the man who came to the door, and he denied knowledge of the occurrence. The testimony of the officers differed at this point, and one ended up inside arresting defendant for “obstructing my investigation.” The search of the house thereafter was unreasonable. Wheeler v. State, 956 So. 2d 517 (Fla. App. 2d Dist. 2007).*
Defense counsel’s failure to object to defendant’s exercise of his right to not consent to a search was a “fundamental error” but harmless under the facts of this case. State v. Christiansen, 144 Idaho 463, 163 P.3d 1175 (2007):
The same rationale that precludes evidence of an accused’s assertion of his or her Fifth Amendment Rights offered for the purpose of either impeachment or inferring guilt precludes evidence of the accused’s assertion of his or her Fourth Amendment rights offered for the same purposes. The State concedes that the prosecuting attorney’s sole purpose for eliciting this testimony was to have the jury infer that Christiansen’s refusal to consent to the search showed consciousness of guilt. The State also agrees that eliciting such testimony was improper and that the prosecuting attorney could not reasonably have believed that such evidence was admissible in this case. We hold that the prosecutor’s questioning as to Christiansen’s refusal to consent to the search of his business premises constituted fundamental error when the purpose for such testimony is to show consciousness of guilt.
Defendant’s counsel’s concessions at close of the suppression hearing that the officer who obtained the search warrant was a sworn law enforcement officer in the jurisdiction waived the argument for appeal [which likely was factually a loser anyway]. State v. Alton, 2007 Ohio 2109, 2007 Ohio App. LEXIS 1969 (8th Dist. May 3, 2007).*
