The plaintiff erected a large cedar fence around his property, including a boathouse. Health inspectors received complaints about his septic tank and entered to check on it. The area qualified as “open fields” under Dunn. Bonneville v. Kitsap County, 2007 U.S. Dist. LEXIS 9429 (W.D. Wash. February 8, 2007):
The January 30, 2004, and December 15, 2005, Health District inspections of Plaintiff’s Illahee property did not constitute Fourth Amendment searches because they occurred in “open fields.” See United States v. Dunn, 480 U.S. 294, 304 (1987). The term “open field” is a legal term of art and is somewhat of a misnomer in that an “open field need be neither ‘open’ nor a ‘field'” and may include “any unoccupied or undeveloped area outside of the curtilage.” Oliver v. United States, 466 U.S. 170, 180 n.11 (1984). “Curtilage” is defined as the area immediately surrounding a home “that harbors the ‘intimate’ activity associated with the ‘sanctity of a man’s home and the privacies of life.'” Dunn, 480 U. S. at 300 (quoting Oliver, 466 U.S. at 180). Thus, any search which occurs outside of the home and curtilage in an unoccupied or undeveloped area is considered an “open field” search. See id.
Curtilage questions 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 within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. Id. at 301. The factors should be used as “analytical tools only” to the degree that, “in any given case, they bear upon the centrally relevant consideration whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id.
. . .
Here, the Health District’s actions on January 30, 2004, and December 15, 2005, did not pass beyond the level of observation the Court found acceptable in Dunn. Although Plaintiff has taken steps to hide his property from the view of passers-by on the street by erecting a tall cedar fence enclosing the house, boathouse, yard and cabana, the boathouse and yard are still not within protected “curtilage.” Anyone wishing to speak with the Plaintiff or ask for permission to conduct an inspection must pass through the gate. And “[a]bsent express orders from the person in possession [of the property] . . . there is no rule of private or public conduct which makes it illegal per se . . . for anyone openly or peaceably, at high noon, to walk up the steps and knock on the front door of any man’s ‘castle.'” Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964). Once through the gate, the entire parcel is open to viewing. Further, the boathouse and yard are easily seen from the water. “It is well established that it is not a search to observe what is open and patent.” Id. at 305. In such a situation, the boathouse and yard are not a part of the curtilage because they are not “intimately tied” to the home itself.
Detention for dog sniff exceeded the time reasonably necessary to complete the stop, so the sniff was invalid. United States v. Davis, 2007 U.S. Dist. LEXIS 9578 (N.D. Ohio February 8, 2007):
The government, in the alternative, argues that the canine sniff was legal based on the Supreme Court’s holding in Illinois v. Caballes, 543 U.S. 405 (2005). The government argues that Caballes stands for the proposition that, because a canine sniff is “sui generis” and “generally does not implicate legitimate privacy interests” the canine sniff at issue did not violate the Defendant’s Fourth Amendment rights. Caballes, 543 U.S. at 409. Caballes, however, is readily distinguishable. The precise holding in Caballes is that: “the use of a well-trained narcotics-detection dog — one that does not expose noncontraband items that otherwise would remain hidden from public view — during a lawful traffic stop, generally does not implicate legitimate privacy interests. Id. (emphasis added) (noting: “[i]n this case, the dog sniff was performed on the exterior of respondent’s car while he was lawfully seized [*17] for a traffic violation.”); see also United States v. Burris, 78 Fed. Appx. 525 (6th Cir. 2003) (affirming undersigned’s prior decision holding that a canine sniff without reasonable suspicion, prior to the conclusion of a traffic stop, did not violate a defendant’s rights).
The Supreme Court, however, specifically distinguished the fact pattern here from that at issue in Caballes, stating:
“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. In an earlier case involving a dog sniff that occurred during an unreasonably prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the subsequent discovery of contraband were the product of an unconstitutional seizure. We may assume a similar result would be warranted in this case if the dog sniff had been conducted while respondent was being unlawfully detained.”
Caballes, 543 U.S. at 407-08 (citing People v. Cox, 782 N.E.2d 275 (Ill. 2002)). In Cox, the Illinois Supreme Court found that a fifteen minute delay prior to conducting a canine sniff constituted an unlawful extension of a “routine” traffic stop. Cox, 782 N.E.2d at 277; see also United States v. Garrett, 139 Fed. Appx. 720, 723 (7th Cir. 2005) (stating: “it does not matter how quickly a dog arrives after being called because a suspect might already be illegally detained by the time of the call.”). This Court, after considering the sequence of events, the candid testimony of Officer Martin, and the uncontradicted testimony of the Defendant and Cain, finds that the duration of the detention exceeded the time necessary to complete the purpose of the initial traffic stop. Thus, like Cox, unless the vehicle’s occupants felt free to leave, or there was a basis for a reasonable suspicion that Cain and Davis were involved in criminal activity, an unconstitutional seizure occurred.
Officer lacked reasonable suspicion for the stop, but the court finds the stop understandable and does not discourage the officer’s actions in this situation. United States v. Melvin, 2007 U.S. Dist. LEXIS 9621 (M.D. Ala. February 6, 2007):
While this Court finds that there was no reasonable suspicion for the Terry stop, this is not to say that the police acted in a wholly inappropriate manner. The stop of the car and the temporary detention of the passengers did not pass constitutional scrutiny, but [Officer] Crooks does not necessarily deserve rebuke. There are certain realities that police officers face in smaller communities that law enforcement in larger communities do not. As noted by the government in its objection to the Recommendation, “Grimes is a small community and a stranger is noticed.” Doc. 32 at 4. While the Fourth Amendment is applicable to a temporary stop of an individual or vehicle no matter the size of the community in which the stop occurs, it is nonetheless understandable why Crooks responded in the way he did to Herring’s tip, even in spite of the fact that the tip lacked any indicia of reliability. Given that Crooks was responding to a suspicious persons call in a small and inclusive community, it is not inconceivable to think that Herring, a member of that community, was pointing out the subject of that call. As peculiar as this may be to people in Atlanta, Miami, or even Montgomery, a community like Grimes is one where everyone knows everyone else. This may not comport with the Fourth Amendment, but it does explain the context in which the stop occurred, and, for these reasons, this Court hopes that the citizens of Grimes continue to enjoy the protection of a police force which apparently takes its responsibility very seriously.
The fact that the consent form was handwritten rather than printed, as a means to challenging consent, was a “nonstarter.” United States v. Dausey, 2007 U.S. Dist. LEXIS 9671 (W.D. Wis. February 9, 2007).*
Government failed in its burden of showing consent. The proffered reasons on review by the District Judge of the R&R were not provided to the Magistrate Judge. United States v. Baird, 2007 U.S. Dist. LEXIS 9622 (D. Neb. February 8, 2007).*
