United States v. Alexander , 888 F.3d 628 ( 2018 )

16-3708-cr
United States v. Alexander
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2017
Argued: October 30, 2017
Decided: May 1, 2017
No. 16-3708-cr
UNITED STATES OF AMERICA,
Appellee,
— v. —
ROBERT ALEXANDER,
Defendant-Appellant.
B e f o r e:
LYNCH and CARNEY, Circuit Judges, and HELLERSTEIN, District Judge.*
*
Judge Alvin K. Hellerstein, of the United States District Court for the Southern
District of New York, sitting by designation.
Defendant-Appellant Robert Alexander appeals from a judgment entered
in the United States District Court for the Eastern District of New York (Carol
Bagley Amon, J.) convicting him of one count of being a felon in possession of a
firearm. Before trial, the district court denied Alexander’s motion to suppress two
firearms recovered from his property in a warrantless search without probable
cause, holding that there was no Fourth Amendment violation because the
firearms were found outside the curtilage of Alexander’s home. Alexander
argues that that decision was in error. We agree, and VACATE the judgment of
conviction, REVERSE the denial of the suppression motion as to the two firearms,
and REMAND the case for further proceedings.
Judge HELLERSTEIN concurs in the judgment in a separate opinion.
AMY BUSA, Assistant United States Attorney (Ryan C. Harris, Assistant
United States Attorney, on the brief) for Bridget M. Rohde,
Acting United States Attorney for the Eastern District of New
York, Brooklyn, New York, for Appellee.
ALLEGRA GLASHAUSSER, Federal Defenders of New York, Inc.,
Appeals Bureau, New York, New York, for Defendant-
Appellant.
GERARD E. LYNCH, Circuit Judge:
Defendant-Appellant Robert Alexander was convicted of being a felon in
possession of a firearm after police, without a warrant or probable cause,
searched a portion of his property and discovered two guns inside a bag. The
2
United States District Court for the Eastern District of New York (Carol Bagley
Amon, J.) denied Alexander’s motion to suppress the guns before trial.
Alexander now seeks to vacate his conviction on the ground that the district
court’s suppression ruling was in error. His appeal presents the narrow question
of whether the area where police discovered the guns formed part of the
“curtilage” of Alexander’s home and was thus entitled to Fourth Amendment
protection that the district court determined was not due. For the reasons that
follow, we VACATE Alexander’s conviction, REVERSE the denial of the
suppression motion as to the guns, and REMAND for further proceedings.
BACKGROUND
The following facts, which are drawn from the record of the suppression
hearing, are largely undisputed.
Alexander lived in a narrow house on Staten Island. The front of the house
faced the street, and a short set of stairs led directly from the sidewalk to the
front door. The property also included an 84-foot-long driveway that ran
perpendicular to the street and alongside the home. The driveway extended past
the back of the house, and at the end of the driveway, in the backyard, was a
3
shed. Alexander used the part of the driveway in front of the shed for parking,
barbeques, and relaxation. There was fencing on three sides of the property,
though not on the side facing the street.
One night, Alexander was standing with a woman in his front yard, a
bottle of vodka in hand. A few feet away, another man and woman sat in a car
that was idling in the street, blocking Alexander’s driveway.
Sometime between 3:00 and 3:30 a.m., two plainclothes police officers,
Genaro Barreiro and Daniel Golat, approached the group. As they neared, the
officers observed the man in the passenger seat of the car attempt to put in his
pants what appeared to be a baggie of drugs. The police quickly removed the two
passengers from the vehicle and discovered a plastic bag containing a substance
resembling cocaine in the man’s hand.
The man apparently confessed that there was more cocaine in the back seat
of the car, prompting Golat to search that area for additional drugs. While Golat
was doing so, Alexander announced that he was “just going to put [the liquor
bottle] in the back.” A. 58. (He later told Golat that he wanted to put the bottle
away “out of respect” for the police officers. A. 171.) Alexander then walked
down the driveway toward the backyard, stopping along the way to pick up a
4
bag that had been left next to the house. Alexander was out of view for less than
a minute before returning to the officers. When he did, he had neither the bottle
nor the bag with him.
After an additional police officer arrived on scene, Officer Barreiro decided
to look for the items that Alexander had moved. Barreiro testified that his
“suspicion level [was] high,” A. 65, but it is undisputed that he had no probable
cause to search Alexander’s property. Nevertheless, Barreiro proceeded to walk
down the driveway and eventually found the liquor bottle around the back
corner of the house, next to the home’s back door. Barreiro did not see the bag at
that time and returned to the front yard to frisk Alexander. Barreiro then walked
down the driveway once again and “into the backyard” in order to continue
searching for the bag. A. 69.
Once in the backyard, Barreiro used his flashlight to scan the area and
spotted the bag resting on a plastic chair by the front corner of the shed closest to
the house. The chair was roughly four feet from where he had found the bottle.
Barreiro walked up to the bag and saw the butt of a gun sticking out of it.
Inspecting the bag more closely, he realized that there were actually two guns
inside.
5
Alexander was arrested and charged with one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and one count of
possessing a defaced firearm in violation of 18 U.S.C. § 922(k).
Before trial, Alexander moved to suppress both the guns and the vodka
bottle, arguing that Officer Barreiro violated the Fourth Amendment by
searching the curtilage of Alexander’s home without a warrant or probable cause.
The district court held a hearing at which the officers and Alexander’s sister, who
lived with Alexander, testified. In an oral ruling, the court granted the motion as
to the bottle, and denied it as to the guns, holding that only the former was found
on the curtilage of the house.
The guns were thus admitted at trial, and the jury convicted Alexander of
one count of being a felon in possession of a firearm. He was sentenced
principally to 51 months’ imprisonment and three years’ supervised release. This
appeal followed.
DISCUSSION
At the “very core” of the Fourth Amendment “stands the right of a man to
retreat into his home and there be free from unreasonable governmental
intrusion.” Silverman v. United States, 365 U.S. 505, 511 (1961). The curtilage —
6
that is, the “area adjacent to the home and to which the activity of home life
extends” — is considered part of a person’s home and enjoys the same protection
against unreasonable searches as the home itself. Florida v. Jardines, 569 U.S. 1, 7
(2013) (internal quotation marks omitted). As a result, a search of the curtilage
that occurs without a warrant based on probable cause or an exception to the
warrant requirement violates the Fourth Amendment. Harris v. O’Hare, 770 F.3d
224, 234, 240 (2d Cir. 2014). By contrast, that portion of private property that
extends outside a home’s curtilage — what the caselaw terms an “open field” —
is beyond the purview of the Fourth Amendment, and can be warrantlessly and
suspicionlessly searched without constitutional impediment. Jardines, 569 U.S. at
6.
In this case, we must decide whether the area where Officer Barreiro found
the guns was part of the curtilage of Alexander’s home. If it was, it is undisputed
that the guns should have been suppressed, and Alexander’s conviction for
possessing those guns must be vacated.
In reviewing a district court’s denial of a motion to suppress, “factual
determinations are reviewed for clear error and conclusions of law are reviewed
de novo.” United States v. Hayes, 551 F.3d 138, 143 (2d Cir. 2008), citing Ornelas v.
7
United States, 517 U.S. 690, 698–99 (1996). The same standard applies to a decision
about curtilage. Id. Factual determinations about use, privacy, and the physical
characteristics of a property are “reviewable for clear error only,” whereas such
“factual findings are themselves subject to a legal framework which is . . .
reviewable in a plenary fashion.” United States v. Reilly, 76 F.3d 1271, 1275 (2d
Cir.), aff’d on reh’g, 91 F.3d 331 (2d Cir. 1996). Mixed questions of law and fact —
that is, whether the “admitted or established” facts satisfy the “relevant statutory
or constitutional standard” — are subject to de novo review as well. Ornelas, 517
U.S. at 696–97 (brackets omitted).
The relevant facts here are undisputed, and the framework that we must
apply to them is principally informed by two Supreme Court decisions.
In United States v. Dunn, the Court considered whether a barn located 50
yards from a fence surrounding a ranch house was part of the home’s curtilage.
480 U.S. 294, 297 (1987). The barn itself was surrounded by a separate fence, as
was the entirety of the 198-acre property. Id. The Court held that the barn was not
part of the curtilage. Id. at 301. It reached its decision by applying a four-factor
test, which it instructed “should” be used to resolve curtilage questions. Id. The
factors were: “the proximity of the area claimed to be curtilage to the home,
8
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.
The Court was careful to warn, however, that “combining th[ose] factors
[does not] produce[] a finely tuned formula that, when mechanically applied,
yields a ‘correct’ answer to all extent-of-curtilage questions.” Id. Instead, the
factors were “useful 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.
The Supreme Court did not hear another curtilage case until decades later.
In Jardines v. Florida, the Court was faced with a search that occurred on the front
porch of a home. 569 U.S. at 7. Without reference to the Dunn factors, the Court
held that the porch was part of the home’s curtilage. Id. It described curtilage as
the “area around the home [that] is intimately linked to the home, both physically
and psychologically, and is where privacy expectations are most heightened,”
and suggested that a “home’s porch or side garden” fell easily within that
definition. Id. at 6–7 (internal quotation marks omitted). The Court went on to
9
recognize that the public, law enforcement included, had an implicit license to
approach the front door of a home in order to “knock promptly” and “wait
briefly to be received.” Id. at 8. But, in bringing a drug-sniffing dog onto the
porch, the police exceeded the scope of that implicit license, and their search was
thus unconstitutional. Id. at 9.
That Jardines did not reference Dunn does not mean that the earlier case is
no longer relevant. Indeed, in our first curtilage case post Jardines, we relied on
the Dunn factors in holding that, for qualified immunity purposes, it was “clearly
established that a fenced-in side or backyard directly abutting a single-family
house constitutes curtilage.” Harris, 770 F.3d at 240.
At the same time, the Dunn factors have never been the exclusive curtilage
considerations, and are relevant only insofar as they help answer the “central”
question of whether the area in question “harbors the intimate activity associated
with the sanctity of a man’s home and the privacies of life.” Dunn, 480 U.S. at 300
(internal quotation marks omitted). Jardines confirms that and, further, is
instructive as to the weight certain factors should receive when courts seek to
answer that ultimate question. The front porch in Jardines was neither hidden
from public view nor closed off to the public by a fence; in fact, the porch was
10
open to the public in such a way that the public had an implicit license to enter
the area. None of those facts gave the Jardines Court any pause in declaring the
porch curtilage, suggesting that the lack of fencing (relevant to the second Dunn
factor) and the lack of steps taken to protect an area from public observation
(relevant to the fourth) may be of limited significance, at least in certain
residential settings. For these reasons, and as discussed below, Jardines undercuts
certain of this Court’s precedents that suggest that public visibility or public
access may definitively take an area out of the curtilage.
With these principles in mind, we turn to the case at hand. We begin with
the Dunn factors.
The first Dunn factor — proximity of the area to the home — weighs
strongly in Alexander’s favor. Unlike the barn in Dunn, which was 50 yards from
the fence around the home, the area in front of the shed was just a few steps from
Alexander’s back door, and the area “‘immediately surrounding and associated
with the home’” is the very definition of curtilage. Jardines, 569 U.S. at 6, quoting
Oliver v. United States, 466 U.S. 170, 180 (1984). The government does not
disagree.
11
The second Dunn factor — whether the area is included within an
enclosure surrounding the home — is neutral. As explained in Dunn, this factor
seeks to account for the divisions that a property owner herself has created with
her property, and is premised on the notion that “for most homes, the boundaries
of the curtilage will be clearly marked.” 480 U.S. at 302 (internal quotation marks
omitted). A “fence surrounding [a] residence serves to demark a specific area of
land immediately adjacent to the house that is readily identifiable as part and
parcel of the house,” whereas an area outside a fence surrounding a home
“stands out as a distinct portion” of the property, “quite separate from the
residence.” Id. In Dunn, that distinction made sense. A perimeter fence encircled
the respondent’s 198-acre property, and a much smaller fence encircled the
home; that the area in question was 50 yards beyond that interior fence
supported the Court’s determination that the physical layout of the property
itself distinguished the area from the respondent’s home and, thus, the curtilage.
Id. at 297, 302.
It is unlikely that a property as small as Alexander’s would be subdivided
like the property in Dunn, making the second Dunn factor a less useful concept in
this particular residential setting. In any event, Alexander neither fully enclosed
12
any part of his property with fencing, nor separated the area in front of the shed
from the home by running a fence between them. The fencing that did exist,
however, enclosed, on three sides, both the shed and the home, marking off the
home and modest yard and driveway areas from adjoining properties — a fact
that, if anything, supports Alexander. See Reilly, 76 F.3d at 1277–78.
To the extent the second Dunn factor relates more broadly to whether
fencing prevented public access to the area in question, see Hayes, 551 F.3d at 148,
our assessment of the factor doesn’t change. Although there was no fencing on
the street-facing side of the property, there was fencing on the other three sides,
and the area in front of the shed was more than 80 feet from the street. That
physical layout certainly did not invite visitors to traverse the length of
Alexander’s property in order to enter his backyard, and the fencing that was in
place certainly would discourage such intrusions.
The third Dunn factor — the nature of the uses of the area — weighs at
least slightly in Alexander’s favor. Although the district court found that the top
of the driveway’s “primary use” was for parking cars, it was used “at least
occasionally for recreation” such as hosting barbeques, and was continuous with
the backyard area behind the house, which the district court concluded was
13
within the curtilage of the home. A. 271–72. Thus, it is an area “to which the
activity of home life extends.” Jardines, 569 U.S. at 7 (internal quotation marks
omitted). In Reilly, we concluded that a pond located 300 feet from the
defendant’s home was a part of the curtilage, and observed that “[o]n a large
parcel of land, a pond 300 feet away from a dwelling may be as intimately
connected to the residence as is the backyard grill of the bloke next door.” 76 F.3d
at 1277. Alexander is more or less that “bloke,” and the area in question, an order
of magnitude closer to his house than the pond in Reilly, is where he sometimes
uses his grill.
Finally, the fourth Dunn factor — steps taken to protect the area from
public observation — weighs somewhat against a finding of curtilage. Although
the area in question was set back from the street, nothing prevented the public
from viewing the area from the sidewalk in front of the property, nor did the
chain link fence stop neighbors in adjacent properties from observing
Alexander’s backyard.
Mindful that we need not mechanically apply these factors, we hold that
the area from which the guns were recovered was part of the curtilage of
Alexander’s home. Only the fourth Dunn factor weighs against Alexander, and
14
that factor is not dispositive, particularly where, as here, the search took place
just steps from the home in an area partially used for intimate activities.
As suggested above, Jardines strongly reinforces our conclusion and our
weighing of the Dunn factors. In that case, the Supreme Court observed that a
property owner’s Fourth Amendment rights 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.” Jardines, 569 U.S. at 6. A porch, like the area in front of
the shed, abuts the home itself, and thus, here as in Jardines, the first Dunn factor
of “proximity” strongly favors a finding of curtilage. A porch is not necessarily
within a closed area, and, like the driveway in this case, is even sometimes
subject to a limited license for visitors approaching the home in order to seek
entry. Therefore, here as in Jardines, the absence of a fence marking off one part of
the property as more private than the rest does not preclude a finding of
curtilage. Next, both a porch and the immediate back or side yard area abutting a
house, especially on a small property like Alexander’s, are commonly used for
family activities, even though they may also be accessible, to a limited degree and
for particular purposes, to visitors, including strangers such as salespersons or
indeed police officers. The area here is thus comparable to the porch in Jardines
15
with respect to the third Dunn factor. And a porch, like Alexander’s driveway, is
typically open to observation from passing pedestrians, even ones with no
legitimate occasion to enter it. The fourth Dunn factor, then, though it weighs
against a finding of curtilage, carries no more weight here than in Jardines.
Accordingly, although there is, as Dunn explained, no mechanical formula
for balancing the factors relevant to the curtilage inquiry, the Dunn factors in this
case line up closely with the same factors as applied to the property in Jardines,
which the Court found to be a paradigmatic example of curtilage.
Jardines also helps illustrate a further distinction that is relevant to the
significance of the fourth Dunn factor. The government places some emphasis on
the fact that the area in question was visible from the street, which, we agree,
weighs against a curtilage finding. But whether the general area was visible from
the public sidewalk, the evidence that was seized, and even the bag that the
police searched for, were not. We would have a very different case if the officer
had observed the guns or other incriminating evidence from the sidewalk — just
as Jardines would have been different if the officers had observed marijuana
plants in plain view on the porch. Such an observation would give the officers
probable cause to obtain a search warrant, and, depending on the circumstances,
16
an exigency of some kind might permit a warrantless entry onto the curtilage and
seizure of the evidence. But absent such cause, the officers in Jardines were not
permitted to enter onto the porch for the purpose of conducting a search, even
though the porch itself was visible from the street.
We do not suggest that nothing can be said on the other side of this
argument. Alexander certainly could have taken steps — placing a fence at the
front of his property, erecting walls to prevent public observation of the area in
front of the shed — that would have resolved the curtilage question even more
clearly in his favor. But it is not necessary to turn a residential property into a
fortress in order to prevent the police from “trawl[ing]” one’s yard, Jardines, 569
U.S. at 6, unencumbered by the Constitution.
For that indeed would be the consequence of the government’s position in
this case. The government does not argue that there was probable cause, or even
reasonable suspicion, to justify the search. Rather, it contends that the area in
question falls into the category of open fields that may be investigated without a
warrant or exigency, without probable cause or articulated basis for suspicion,
whenever an officer decides to have a look around. As Jardines shows, the mere
fact that a part of Alexander’s modest homestead was not fully surrounded by a
17
fence and was visible from the street does not make that area, which directly
abutted the house, which was used for recreation, and which sat more than 80
feet from the sidewalk, fair game for warrantless and suspicionless police
inspection or patrol.
In urging the opposite conclusion, the government argues that “this Court
has repeatedly held . . . that driveways do not constitute curtilage entitled to
protection under the Fourth Amendment where, as here, they are unenclosed,
unshielded, and visible and accessible from a public street.” Gov’t Br. 19. The
three cases of ours that the government cites in support of that proposition,
however, do not persuade us that the area in front of Alexander’s shed should be
considered an open field. All of them preceded Jardines and, even on their own
terms, they do not sweep as broadly as the government contends.
The first of the cases, Krause v. Penny, 837 F.2d 595 (2d Cir. 1988), did not
even attempt to distinguish between curtilage and an open field, but rather
considered whether the defendant officer was entitled to qualified immunity for
an arrest allegedly made in violation of Payton v. New York, 445 U.S. 573 (1980),
which prohibits police from entering a suspect’s home without consent and
making a routine arrest without a warrant. We described the Supreme Court’s
18
jurisprudence at the time as having “not yet delineated ‘the degree of Fourth
Amendment protection afforded the curtilage, as opposed to the home itself.’”
Krause, 837 F.2d at 596–97, quoting Oliver, 466 U.S. at 180 n.11. We noted, in
addition, that a number of lower courts had determined that “areas such as
driveways that are readily accessible to visitors are not entitled to the same
degree of Fourth Amendment protection as are the interiors of defendants’
houses.” Id. at 597. For those reasons, among others, we held that the plaintiff’s
warrantless arrest on his driveway did not violate clearly established law and,
therefore, the arresting officer was entitled to qualified immunity. Id.
Neither that holding nor the analysis that got us there compels the
conclusion that the whole of Alexander’s driveway constitutes an open field. In
fact, Krause seems to proceed on the assumption that the arrest took place on, and
thus the driveway there formed part of, the curtilage: were the driveway
considered to fall outside the curtilage, the Fourth Amendment would have no
relevance at all, and our discussion of the “degree of Fourth Amendment
protection” owed to curtilage as compared to the house itself would have been
unnecessary. Id. Moreover, the case was decided on qualified immunity grounds,
and held at most that there was no clearly established law at the time
19
determining whether the officer had violated the Constitution. Id. at 596. Even if
we were to read Krause, as the government does, as implying that “areas such as
driveways that are readily accessible to visitors” must be considered open fields,
id. at 597, that interpretation would be impossible to square with Jardines, where
the front porch was deemed curtilage notwithstanding visitors’ “implicit license”
to enter the area. Jardines, 569 U.S. at 8.
The government fares no better with its next case. In United States v. Reyes,
the defendant Reyes sought to suppress marijuana plants that his probation
officer discovered while walking on a gravel driveway on the side of Reyes’s
home. 283 F.3d 446, 450 (2d. Cir. 2002). The district court denied the suppression
motion, and we affirmed. Id. at 470. We held that, as a convicted felon on
supervised release, Reyes had “a severely diminished expectation of privacy with
respect to any home visit by a probation officer,” and that the probation officer
required neither probable cause nor reasonable suspicion to search his property.
Id. at 461–62. Whether the driveway was curtilage thus had no bearing on the
resolution of Reyes’s appeal.
We nevertheless went on to consider in the alternative — and in dicta, for
present purposes — whether the search could have been justified even if Reyes
20
had not been on supervised release. Id. at 465–68. We said that it could, reasoning
that the driveway, which had “access for pedestrian traffic” and was not used
“for activities of an intimate nature,” fell outside the curtilage of the home. Id. at
466–67. That reasoning highlights the factual differences between Reyes and the
present case, as the area in front of Alexander’s shed was not an area that visitors
ever needed to access, and the area was used for intimate activities.
More importantly, however, our analysis in Reyes rested on the principle,
untenable after Jardines, that “[t]he route which any visitor to a residence would
use is not private in the Fourth Amendment sense.” Id. at 465 (internal quotation
marks omitted, alteration in original). The public may have an implicit — but
limited — license to enter an area commonly traversed by visitors, such as a
driveway or a porch. But Jardines stands for the proposition that the existence of
such a license exists is not a reason to declare the area an open field; it means
only that certain police intrusions onto the curtilage may be justified, assuming
the police acted within the scope of the implicit license. The government does not
contend that such a license permitted the officer’s nighttime search in the present
case, and the dicta in Reyes does not persuade us that the back portion of
21
Alexander’s driveway, which was not necessary to cross in order to seek entry to
the home, was outside the curtilage.
The government’s final case, United States v. Hayes, is similarly
distinguishable. There, the defendant Hayes sought to suppress a bag of narcotics
that a police dog had recovered from scrub brush on the border of Hayes’s
property. Hayes, 551 F.3d at 140. The principal issue on appeal was whether the
brush, located 65 feet from the home, was curtilage — a question we answered in
the negative. Id. at 145. That conclusion is of marginal relevance here.
The portion of the opinion on which the government relies addressed a
different issue. Hayes also sought suppression on the ground that, even if the
dog both detected and recovered the narcotics from outside the curtilage, the dog
still passed over the curtilage en route to the bag. Id. at 146–47. We ultimately
determined that it didn’t matter whether the dog passed over the curtilage
because “such a transient trespass does not implicate the Fourth Amendment
where the incriminating evidence is discovered outside the curtilage.” Id. at 147.
In the passage the government cites, we nonetheless expressed our agreement
with the district court’s conclusion that the dog had not invaded the curtilage,
quoting the district court as having determined that the route “along the
22
driveway, . . . which was in full view of the street for its entire length, was plainly
outside of the curtilage.” Id. We did not explain the basis for our agreement, or
even describe the district court’s reasoning. Yet, in our general discussion of
curtilage, we once again suggested that areas used as a “normal route of access
for anyone visiting the premises” may not be protected by the Fourth
Amendment. Id. at 146. Although such access is not necessarily irrelevant to a
curtilage determination, or may justify police access on an implied-license theory,
Jardines makes clear that limited visitor access is not dispositive. In light of
Jardines, the dicta in Hayes cannot persuade us to affirm.
In short, the broad principles the government seeks to glean from our
precedents are either taken out of context or untenable after Jardines, or both. The
police do not have unlimited authority to search driveways for incriminating
evidence, even if the particular driveway is visible from the street, even if a fence
does not block pedestrian access, and even if the public is implicitly licensed to
traverse a portion of the driveway in order to seek entry into the home. Here, the
portion of the driveway in front of Alexander’s shed formed part of the curtilage,
and the search of that area ran afoul of the Fourth Amendment.
23
In his concurring opinion, Judge Hellerstein suggests a provocative and
novel approach to determining the constitutionality of police searches of private
property other than homes or other buildings. We express no view on the
desirability of revising existing Fourth Amendment law along the lines he
suggests. We need not address that issue for two reasons: First, as Judge
Hellerstein explicitly acknowledges, because the government does not argue that
the police had reasonable suspicion that evidence of crime would be found in the
area searched, let alone that reasonable suspicion could justify the warrantless
intrusion of Alexander’s curtilage, the approach proposed in the concurrence is
not properly before us. Second, as the concurrence implicitly recognizes, the
notion that reasonable suspicion might permit intrusions into curtilage that
would not be justified inside the home is foreclosed by governing precedent, see,
e.g., Jardines, 569 U.S. at 6 (“[W]e have held [that the curtilage of the house] enjoys
protection as part of the home itself.”); Harris, 770 F.3d at 238–40 (refusing to
grant qualified immunity for warrantless search of curtilage in absence of
exigency, despite the fact that officers had probable cause), and has no basis in
existing Supreme Court law regarding property searches. We leave it to the
Supreme Court, should Judge Hellerstein’s theory ever be presented to it, to
24
decide whether its existing approach to curtilage and open fields should be
revised. Under existing law, however, the evidence used to convict Alexander
was illegally seized and must be suppressed.
CONCLUSION
For the foregoing reasons, we VACATE Alexander’s conviction, REVERSE
the denial of the suppression motion as to the guns, and REMAND the case for
further proceedings.
25
ALVIN K. HELLERSTEIN, concurring:
I write separately because I believe that the majority’s view of
curtilage is too absolute, and because it does not give a police officer’s
reasonable suspicion any sway in the definition of curtilage.
It was 3:00 a.m., on a street in Staten Island.  The police had
stopped two men \with drugs from driving away, and arrested them.  The
defendant, a cousin of one of the two and the owner of the house, walked
up a driveway to hide what appeared to be an opened bottle of alcohol
from which he had been drinking, and to move another package from one
place in his backyard to another.  Officer Barreiro, tracing defendant’s path
up the driveway and seeing what defendant was doing, moved to the
hiding spot, in the curtilage of defendant’s house.  Looking out, he
scanned the backyard, performing a radius search of the back part of the
backyard, away from defendant’s residence.  He spied another package,
adjacent to a shack at the end of the driveway—a package that on further
inspection revealed what appeared to be a gun sticking out.  Another gun
was inside the bag.  Is that spot, adjacent to the driveway and away from
the defendant’s house, curtilage?  The majority holds that it is, and
excludes the package of guns from being admitted into evidence.  In order
to suppress the evidence, the majority reverses the careful factual findings
of the district judge, applying the four factors for finding curtilage set out
in the controlling case of United States v. Dunn, 480 U.S. 294 (1987), as
understood by the Supreme Court’s most recent curtilage decision in
Florida v. Jardines, 569 U.S. 1 (2013).
First, the government based its appeal, not on the ground of
Officer Barreiro’s reasonable suspicion, but on the district court’s
definition of curtilage.  Had the government not made that concession, the
result might have been different.  I believe it is important, in defining
curtilage, whether a police officer’s reasonable suspicion could justify the
search, and whether the protected curtilage is away from the house.
A constitutional search typically must be premised on a
judicially authorized warrant based on probable cause.  However, an
officer may, in limited circumstances, temporarily detain and conduct a
limited search on an individual’s person based on the officer’s reasonable
suspicion.  See Terry v. Ohio, 392 U.S. 1 (1968); United States v. Singletary,
798 F.3d 55, 59 (2d Cir. 2015) (“In Terry v. Ohio, the Supreme Court
2
‘expressly recognized that government interests in effective crime
prevention and detection, as well as in officer and public safety while
pursuing criminal investigations, could make it constitutionally reasonable
in appropriate circumstances and in an appropriate manner temporarily to
detain a person’ to investigate possible criminality even in the absence of a
warrant or probable cause for arrest.” (quoting United States v. Bailey, 743
F.3d 322, 331–32 (2d Cir. 2014))).
True, the Supreme Court has held that “when it comes to the
Fourth Amendment, the home is first among equals.”  Jardines, 569 U.S. at
6.  But the Fourth Amendment itself makes no distinction between persons
and homes, see U.S. Const. Amend. IV, and the Supreme Court has
described the right to be secure in one’s person as an “inestimable right of
personal security” that “belongs as much to the citizen on the streets of our
citizens as to the homeowner closeted in his study,” Terry, 392 U.S. at 8–9.
If a reasonable suspicion can justify a limited search of one’s person, I
believe that the Constitution could permit a similar approach in the grey
area of curtilage.1
1 Support for a more flexible approach to curtilage determinations, based
on the area in question and the exercise of an officer’s reason and
3
Second and relatedly, I question whether the full perimeter of
protected curtilage is an absolute proposition, or one that varies based on
the factors laid out in United States v. Dunn.  Dunn instructs courts to
consider such factors as “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.”  Dunn, 480 U.S. at 301.  I believe that these factors are more
amenable to a sliding scale analysis, one that recognizes that a police
officer, who had reasonable suspicion to follow defendant and could be
subject to criticism if he had not, and who reasonably believed that the
contraband would have disappeared if he had sought a warrant from a
court, did not violate the Constitution.
judgment, has received some treatment in the academic literature.  See, e.g.,
Stephanie M. Stern, The Inviolate Home: Housing Exceptionalism in the Fourth
Amendment, 95 Cornell L. Rev. 905, 948–50 (2010) (arguing that “[a]reas of
curtilage less likely to be implicated in intimate life, such as storage
outbuildings, garages, and garbage within the curtilage could be subject to
a reduced standard of reasonable suspicion” and recognizing that such
reform “may be quietly beginning” based on “[t]he narrowing of curtilage
protection” in the lower courts).
4
I agree with the majority that defendant’s backyard might be
curtilage.  It is bounded on three sides, and it is used by defendant for
recreational and entertainment purposes.  But it also is open to the
neighbor, and anyone else who walks up the driveway, particularly a
police officer who walked up the driveway because he reasonably
suspected that defendant was hiding evidence of criminal conduct.  No
case holds that curtilage is absolute.2  If it is an area next to a home, and
2 Our discussion of this issue in Krause v. Penny, 837 F.2d 595 (2d Cir. 1988),
is instructive.  In Krause, which was decided after Dunn and addressed the
scope of curtilage in the context of qualified immunity, the plaintiff was
arrested while standing in his driveway after a neighbor complained of
harassment.  Id. at 596.  After the trial court instructed the jury that the
arrest was unlawful based on the area’s proximity to the home, we
reversed, holding that the officer was entitled to qualified immunity.  Id. at
596–97.  As the majority explains, Krause proceeded on the assumption that
the driveway was within the curtilage, but we noted in Krause that the
Supreme Court “ha[d] not yet delineated ‘the degree of Fourth
Amendment protection afforded the curtilage, as opposed to the home
itself.’”  Id. (quoting Oliver v. United States, 466 U.S. 170, 180 n.11 (1984)).
Recognizing that there was “substantial lower court authority for the
proposition that areas such as driveways that are readily accessible to
visitors are not entitled to the same degree of Fourth Amendment protection
as are the interiors of defendants’ houses,” we held that the officer was
entitled to qualified immunity.  Id. at 597 (emphasis added).
I agree with the majority that Krause does not dictate the outcome of
this case, for it concerned a more accessible area on the driveway and
addressed only the officer’s entitlement to qualified immunity.  But Krause
does stand for the proposition that the scope of Fourth Amendment
5
allows entry into the home, whether physically or by sight or smell, it
surely is curtilage, and so the Supreme Court holds.  See Jardines, 569 U.S.
at 7 (calling the front porch “the classic exemplar of an area adjacent to the
home and ‘to which the activity of home life extends’” (quoting Oliver v.
United States, 466 U.S. 170, 182 n.12 (1984)).  But if the area is far enough
away not to threaten privacy within the home, it has elements both of
“open field” and curtilage.  If a police officer invades such an area without
reasonable suspicion, he is invading the home owner’s Fourth
Amendment privacy.  But if the officer enters because of reasonable
suspicion that the backyard harbors crime, and if the circumstances do not
allow time to obtain a warrant, the officer should not be held to have
violated the owner’s Fourth Amendment rights.
In sum, I do not believe that the binary choice between “open
field” and curtilage, with no reference to the reasonable suspicion held by
the officer, is the appropriate way to resolve these questions.  But because
the government stipulated away the issue of reasonable suspicion on
appeal, I concur with the decision of the majority.
protection in areas just within the boundary of curtilage may be more
flexible than within the home itself.
6