TX1: Flowerbed under kitchen window facing street was curtilage; entry violated 4A

Officers arrested a person in a parked car outside a house. The person arrested wanted to leave the keys with the person in the house, and the officers agreed. The house was on a corner, and the kitchen window faced the street. From the street, the officers couldn’t make out who was inside, so they went to the window to look, and they saw defendant inside with drugs. The officers unlawfully entered the curtilage to make the view. Sayers v. State, 2013 Tex. App. LEXIS 14436 (Tex. App. – Houston (1st Dist.) November 26, 2013) [opinion withdrawn, same result on rehearing Sayers v. State\, 2014 Tex. App. LEXIS 3351 (Tex. App. – Houston (1st Dist.) March 27, 2014)]:

Here, the officers observed appellant’s activities inside his house while standing in the flowerbed located directly underneath his kitchen window. This flowerbed, although visible to the public from the street bordering the north side of the house, was not located on the same side of appellant’s house as either the front or back door to the home and was not located next to a sidewalk or other walkway. There is no indication that this flowerbed was used for any purpose other than to hold plants and flowers, and there is no indication that the public was invited to stand in or walk through this flowerbed. We conclude that the flowerbed is clearly part of the area “immediately surrounding and associated with the home” and falls within the curtilage of appellant’s home, thus entitling it to the same Fourth Amendment protection afforded to appellant’s home itself. See Jardines, 133 S. Ct. at 1414 (stating that person’s Fourth Amendment right to be free from government intrusion in own home “would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity”). The flowerbed under appellant’s kitchen window is therefore a constitutionally protected area.

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… Here, the officers discovered evidence of appellant’s wrongdoing solely by physically entering onto an area of appellant’s property where they had no right or license to be and then looking through his kitchen window.3 This activity by the officers constitutes a search. See id. at 1417 (“That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.”).