Tuesday, May 1, 2018

So what if you haven't built a fortress---your property may still be protected curtilage

Officers found drugs in a third-party's car parked on the street in front of a resident's driveway. So naturally the officers decided to nose around the area for more drugs, ultimately walking to the back of the resident's driveway, scanning the area with a flashlight, and finding two guns in a bag on a chair. Bad call, said the Second Circuit, holding that this warrantless search (which lacked either a warrant or probable cause) violated the Fourth Amendment, and the guns must be suppressed.

The driveway ran alongside the home and ended 80 feet back from the street in front of a shed that was just a few steps from the home's back door. While the driveway's primary use was for parking cars, the resident occasionally used the driveway area in front of the shed for outdoor events such as barbecues. This area was---like the front porch in Jardines---part of the home's protected curtilage. This was so despite the visibility of the area from the street and the absence of a fence in front of it. As the Second Circuit explained, "it is not necessary to turn a residential property into a fortress in order to prevent the police from 'trawling' one's yard . . . unencumbered by the constitution." United States v. Alexander, No. 16-3708 (2nd Cir. May 1, 2018).

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