The Sanctity of The Home Reinforced by Second Circuit
The U.S. Supreme Court has for nearly six decades has recognized the fundamental Fourth Amendment right of a person “to retreat into [their] home and there be free from unreasonable governmental intrusion.”
In 2013, the nation’s high court extended this right to the home’s curtilage—that “area adjacent to the home and to which the activity of home life extends.”
However, the “open field” –as it has been termed by caselaw—that extends beyond the curtilage does not enjoy the same Fourth Amendment protection as the home. In fact, this private property can be searched without a warrant or even without suspicion that there is evidence of criminal wrongdoing on the property, so said the Supreme Court in its 2013 decision.
This constitutional background brings us to the case at hand.
Curtilage or Open Field
Robert Alexander is a convicted felon. He was living in a narrow home in Staten Island, New York on November 3, 2015.
In a May 1, 2018 decision, the Second Circuit Court of Appeals described the physical layout of the residence and adjacent area: “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 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.”
That’s the scene two plainclothes police officers, Genaro Barreiro and Daniel Golat, faced when they approached Alexander’s residence sometime between 3:00 and 3:30 a.m. on November 3. The officers also saw a man and a woman sitting in a vehicle that was idling in the street, blocking Alexander’s driveway. Alexander himself was standing in his front yard with a bottle of vodka in his hand talking to a lady friend.
As the officers approached the residence, they observed the man sitting in the passenger side of the vehicle stuffing what appeared to be drugs inside his pants. They stopped and ordered the couple out of the vehicle. One officer found what he believed was a bag of cocaine in the man’s hand. The man quickly pointed to more cocaine in the backseat of the vehicle. Officer Golat began a search of the vehicle.
While this activity was taking place, Alexander announced that he was going to put the bottle of vodka away. He walked down the driveway where at some point he picked up a bag lying next to the house. He disappeared out of the officers’ view for less than a minute before returning with neither the vodka nor the bag he had picked up.
Backup officers arrived at the scene.
Suspicious, Barreiro decided to look for the bag and vodka Alexander had gotten rid of. The officer walked down the driveway where he found the bottle of vodka at the residence’s backdoor. He then walked into the backyard of the residence looking for the bag, scanning his flashlight around the area. The appeals court said the officer “spotted the bag resting on a plastic chair by the corner of the shed closest to the house. The chair was roughly four feet from where he 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.”
Man Indicted by Feds for Felon in Possession of Firearm
Alexander was arrested, turned over to federal authorities, and indicted in the Eastern District of New York for being a felon in possession of a firearm and one count of possessing a defaced firearm. The case was assigned to Judge Carol Bagley Amon.
The Federal Defenders of New York filed a pretrial motion to suppress the firearms, arguing that Officer Barreiro violated the Fourth Amendment when he searched the curtilage of Alexander’s home without a warrant or probable cause. Judge Amon denied the motion, ruling that the weapons were found in an area not part of the curtilage. An ensuing trial convicted Alexander and he was given a 51-month sentence followed by three years of supervised release.
The appeals bureau of the Federal Defenders office filed an appeal with the Second Circuit. That court, as must all federal circuit courts, had to consider the following four factors set forth by the U.S. Supreme Court when considering whether a certain area is part of a home’s curtilage: “the proximity of the area claimed to be the 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.”
With these factors as guidance, the appeals court found that three of the four factors encouraged a finding that the front of the shed where the weapons were found was part of the home’s curtilage. The court said the location of the shed—only a few feet from the backdoor of Alexander’s house—was much like the porch of a home. The court elaborated:
“ … 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, … 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 … And a porch, like Alexander’s driveway, is typically open to passing pedestrians, even ones with no legitimate occasion to enter it…”
Absence of Fence Does Not Preclude Finding of Curtilage
A backyard shed within a few feet of the home, therefore, is Fourth Amendment protected and cannot be search absent “exigent circumstances.” The late Justice Antonin Scalia, who was a staunch defender of the sanctity of the home, most certainly smiled down on the Second Circuit’s decision in the Alexander case.