Outer Boundaries of Homes
Searches of homes are afforded the most constitutional protections. The tricky part is knowing what is exactly included in the definition of “home,” the “curtilage” (area immediately surrounding the home), and the “open fields” (anything beyond the curtilage).
State v. Fisher
154 P.3d 455 (Kan. 2007).
Convicted of manufacture and intent to distribute illegal drugs.
Question
Whether the warrant obtained by seizure of a trash bag on the property (the probable cause for the warrant) was a violation of the Fourth Amendment.
Rule
Can’t search a home or curtilage without a warrant based on probable cause. For curtilage, the warrant may be excepted by a (1) lack of reasonable expectation of privacy, or (2) the plain view doctrine.
“The area that harbors the intimate activity associated with the sanctity of the home and the privacies of life” is the definition of curtilage. To determine whether an item is within the curtilage the court considers the Dunn factors:
- Proximity to the home
- Whether the area is enclosed (e.g., by a fence) along with the home
- How the area is used
- Whether the owner took steps to protect the area from public observation
Holding
The seizure of the bag was unlawful, so that evidence should be excluded. However, the warrant was still fine because there was probable cause from the other preexisting conditions (smell, view, etc.)
Facts
Upon receiving a tip from a couple of concerned citizens, the officer went to the highway located near the defendant’s home. The location was rural in nature, the property being bordered by the highway on the east and farmland surrounded by a barb wire fence on the north, west, and south. A driveway extends from the highway beyond the front of the house to the back and then loops back around. Also on the property are three buildings, the home, a barn, and a smaller shed.
From the highway and other locations in the field surrounding the home, the officer discovered a strong smell he associated with the manufacture of drugs. He also observed trash in-between the home and the barn and saw ingredients used in the same manufacture. Later in the morning, the officer returned with the county attorney, who said the trash was located outside of the curtilage. With this information, the officer went and knocked on the front door. When nobody answered, he looped behind the home (following the driveway) and came to the trash. Confirming the contents were what he believed, he grabbed the bag and used it as evidence to get a warrant for a search of the rest of the home.
Analysis
The bag was within the curtilage of the property. Using the factors above, the location was in a private area close to the home (behind and between multiple buildings), within an enclosed area and taken care of (barbed fence), area was not within public use, and steps were taken to keep the trash away from public eyes (beyond houses, away from highway, etc.).
Additionally, there was an expectation of privacy exception for the same reasons of the fourth factor. For instance, the defendant’s would be surprised if they learned random public citizens entered the property to look in the trash (because the defendant planned on personally disposing of the trash through burning).
Finally, the trash was not within plain view. There is a difference between observing and seizing. The ability to lawfully observing cannot be confused as the ability to lawfully seize. This was also beyond the scope of the plain view doctrine because the officer had to go out of his way to look for the trash.
State v. Dixson
766 P.2d 1015 (Or. 1988).
Open Field Doctrine
The officers obtained a tip that drugs were being grown in a rural area. When the officers searched the area, they passed several signs that said “no hunting.” They discovered the drugs on the defendant’s property.
An open field is an area beyond the scope of the home and curtilage (i.e., everything else). The Fourth Amendment provides no protections to open fields. Using the facts here, this was an open field so there are no Fourth Amendment protections and the search is valid. State law could restrict this further (e.g., Oregon adds a requirement of whether the owner has made barriers to entry).
However, in a suburban area, the courts are divided. Compare People v. Thompson (Cal. App. 1990) (the property is all curtilage), with Hart v. Myers (D. Conn. 2002) (the property is not all curtilage).
Espinoza v. State
454 S.E.2d 765 (Ga. 1995).
Officers has a search warrant for Apt. B. However, the officers found drugs closer to Apt. A along Apt. A’s side of the driveway. So, the question is whether the warrant covers the seizure because the drugs were found on the curtilage of Apt. A.
State v. Smith
501 P.3d 398
“Hot Pursuit”
Smith was speeding and an officer began to pull him over. Instead of pulling over, Smith drove to his driveway and then told the officer to get a warrant to conduct a search. The officer did not get a warrant, discovered Smith had been drinking, and charged him with speeding, obstructing a peace officer, DUI, and resisting arrest (all misdemeanors).
Workplaces
People v. Galvadon
103 P.3d 923 (Colo. 2005).
Question
Whether the defendant had an expectation of privacy in the workplace that afforded him additional constitutional protections.
Rule
To determine whether the subject has an expectation of privacy against government intrusion when there are no surveillance camera, the court considers:
- Whether the work area is exclusively used by the employee.
- Whether the employee had the power to exclude access to the work area.
When there are surveillance cameras, the court considers:
- Whether the surveillance is available to the public
The expectation of privacy may be reduced regarding the store owner, but not the government.
However, this expectation of privacy is not presumed, they must be proved by the defendant.
Holding
There was an expectation of privacy, the search was improper.
Facts
Galvadon and his mother-in-law are the only employees of a liquor store. His mother-in-law is also the owner. Galvadon worked nights. One night, as Galvadon was working, two men were outside the store when suddenly one was pepper sprayed. By chance an officer was passing near the same time. As the man’s companion helped him inside the store, the officer followed. When the men asked Galvadon to use the restroom to wash his face, Galvadon said the back room was off-limits. Despite the refusal, the men entered the back room and the officer followed.
The only people with access to the back room and surveillance were Galvadon and his mother-in-law.
Once in the back room, the officer found several bricks of illegal drugs.
Analysis
There is expectation of privacy here because the work area is exclusively used by the employee and the owner and the employee believed he had the authority to deny others entry. Again, the video surveillance was restricted to employee and employer use. Galvadon may be liable to the owner, but the expectation of privacy is not reduced for government searches.
Additionally, the fact that this is a highly regulated industry has no bearing on the analysis because the business would only be subject to administrative (not investigative) searches.
The dissent, however, argues the reasonable expectation of privacy does not exist because the back room is readily subject to searches (being a highly regulated industry).
Additional Notes
Also note the store owner could provide the officers the camera and there would be no issues. Additionally, the owner could voluntarily hand over the evidence if asked. However, if the owner is an agent—(1) police started it and (2) individual acts with intent to assist the police—then the evidence can be barred.
Note that the above case argues the expectation of privacy against the government is not reduced even if the expectation of privacy against an employer would be. This is not the case for government jobs. The government does not need a warrant to conduct a non investigative work-related search, or an investigation on work-related misconduct.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
