{"id":5772,"date":"2012-02-16T13:40:49","date_gmt":"2011-07-12T07:24:37","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-07-12T07:24:37","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5772","title":{"rendered":"D.Ore.: Officer’s looking in a window not at front door to see if defendant was home conducted an unreasonable search"},"content":{"rendered":"

The tribal officer governed by the Fourth Amendment<\/a> approaching the front door instead went to a window to peek inside to see if the defendant was inside. Looking in a window not associated with the point of entry was an unreasonable search of the interior. United States v. Fuentes, 800 F. Supp. 2d 1144 (D. Ore. 2011):<\/p>\n

Under the government\u2019s interpretation of [United States v. Hammett<\/a>, 236 F.3d 1054, 1059 (9th Cir. 2001)], whenever an officer knocks on the door of a home and the occupant declines to respond, the officer is free to roam the property and peer into any window of the home simply by asserting that they were attempting to contact the occupants. Such a rule would eviscerate the occupant\u2019s right to decline to answer the door. See King<\/a>, 131 S. Ct, at 1862 (\u201cthe occupant has no obligation to open the door or to speak\u201d). Further, if an officer is permitted to breach the curtilage of a home, press his face to the glass of any window, and peer into the home whenever he asserts he is attempting to contact the occupant, what would prevent him from opening the front door or a window? After all, the officer would have a better chance of contacting the occupant that way. I decline to extend Hammett and Garcia to circumstances in which law enforcement officers enter the curtilage of a home, stand within inches of a window not associated with any point of entry, and peer inside without a warrant or any other justification.<\/p>\n

Finally, the government suggests that Kentucky v. King<\/a>, 131 S. Ct. 1849 (2010), supports the detectives\u2019 warrantless search of Fuentes\u2019 living room. I disagree. Unlike the exigent circumstances in King, where officers detected the strong smell of marijuana, knocked on the door, and then heard the sound of evidence being destroyed, there were no exigent circumstances preceding Detective Webb\u2019s search of Fuentes\u2019 living room. At the time Detective Webb looked into Fuentes\u2019 living room, he had no specific, particularized basis for believing that a crime had been committed, that his safety was threatened, or that evidence was being destroyed. That the detectives heard movement after Fuentes refused to answer the door does not give rise to a reasonable belief that a warrantless search was necessary to ensure officer safety or prevent the imminent destruction of evidence. King does not support the conclusion that Detective Webb\u2019s warrantless search of Fuentes\u2019 living room was justified.<\/p>\n

Under the specific circumstances of this case, I find it was unreasonable for Detective Webb to enter the curtilage of Fuentes\u2019 home, stand within inches of a window that is not associated with any point of entry, and peer into the home without any particularized basis for believing exigent circumstances existed. Accordingly, the detectives\u2019 observations of the marijuana pipe were unlawful.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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