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, 2018

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

(g)(1) and one count of

possessing a defaced firearm in violation of

(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,

(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,

(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,

(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,

.

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,

(2d Cir. 2008), citing Ornelas v.

7 United States,

, 698–99 (1996). The same standard applies to a decision

about curtilage.

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,

(2d

Cir.), aff’d on reh’g,

(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.

(1987). The barn itself was surrounded by a separate fence, as

was the entirety of the 198-acre property.

The Court held that the barn was not

part of the curtilage.

. It reached its decision by applying a four-factor

test, which it instructed “should” be used to resolve curtilage questions.

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.”

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.”

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.”

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.

. Without reference to the Dunn factors, the Court

held that the porch was part of the home’s curtilage.

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.

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.”

. 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.

.

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,

.

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,

(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,

, quoting

Oliver v. United States,

(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.”

(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.”

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.

.

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,

,

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,

(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.”

. 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,

. 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,

, 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,

(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,

(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,

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,

.

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.

(2d. Cir. 2002). The district court denied the suppression

motion, and we affirmed.

. 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.

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.

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.

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.”

(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,

. The principal issue on appeal was whether the

brush, located 65 feet from the home, was curtilage — a question we answered in

the negative.

. 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.

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.”

.

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.”

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.

. 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,

(“[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,

(1987), as

understood by the Supreme Court’s most recent curtilage decision in

Florida v. Jardines,

(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,

(1968); United States v. Singletary,

(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,

, 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,

. 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,

. 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,

, 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,

(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.

. 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.

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.’”

(quoting Oliver v. United States,

, 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,

(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,

, 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