{"id":3033,"date":"2009-05-16T06:50:11","date_gmt":"2009-03-31T07:43:14","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-03-31T07:43:14","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3033","title":{"rendered":"M.D. Fla.: DEA violated curtilage to get consent; found involuntary"},"content":{"rendered":"

M.D. Fla. suppresses a knock-and-talk where the police entered defendant’s fenced off property to knock at the door and seek consent in violation of his expectation of privacy shown under Dunn<\/a>. Under the circumstances of this case, the defendant’s consent was not voluntary after the knock-and-talk. United States v. Hambelton, 2009 U.S. Dist. LEXIS 25139 (N.D. Fla. March 18, 2009):<\/p>\n

Taking all of the factors into consideration, the Court finds that the officers entered Defendant’s curtilage when they walked up to his front door and stationed themselves at the sides of his house. Defendant did not extend an implicit invitation for visitors to enter the area. He expressed his intent to keep visitors out through warning signs and by locking the gate. Courts have recognized that “‘[o]fficers are allowed to knock on a residence’s door or otherwise approach the residence seeking to speak to the inhabitants just as any private citizen may.'” United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006) (citation omitted). In this case, however, Defendant took pains to exclude visitors by erecting a fence, locking his gate, putting up signs, and enclosing the area with natural vegetation. The officers did not approach the house in a manner that a private citizen could approach it given the reasonable expectation of privacy that Defendant maintained in the area. See Madruga v. County of Riverside, 431 F.Supp.2d 1049, 1057 (C.D. Cal. 2005) (explaining why the “knock and talk” exception does not apply to homes made inaccessible to visitors). The officers’ entry into the curtilage violated Defendant’s reasonable expectation of privacy under the Fourth Amendment.<\/p><\/blockquote>\n

Texas Court of Criminal Appeals disagrees with Keehn v. State, 223 S.W.3d 53 (Tex. App. \u2014 Ft. Worth 2007)* (posted here<\/a>) that a plain view and seizure from a closed car of an anhydrous ammonia tank was valid. Officers could not enter the car under that rationale. They could, however, under the automobile exception, and it mattered not that the car was in defendant’s driveway. Keehn v. State<\/a>, 279 S.W.3d 330 (Tex. Crim. App. 2009):<\/p>\n

Carney<\/a>‘s reference to “a place not regularly used for residential purposes” in no way stands as a per se bar on the application of the automobile exception to a vehicle parked in the driveway of a private residence. Indeed, our reading of the quoted text is reinforced by the Court’s observation that it did not have to decide whether the automobile exception applies to “a motor vehicle that is situated in a way or place that objectively indicates that it is being used as a residence.” Furthermore, numerous other courts have adopted our reading of Carney<\/a> when confronted with the same argument that Keehn advances here. <\/p><\/blockquote>\n

Defendant waived any objection to the search of his person when he did not object to the evidence when it was offered at trial after the suppression motion was denied. Heiden v. State<\/a>, 2009 Tex. App. LEXIS 2000 (Tex. App. \u2014 Austin March 25, 2009).*<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-3033","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3033","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3033"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3033\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3033"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3033"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3033"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}