Saturday, November 8, 2014

The Second Circuit revisits the concept of curtilage for Fourth Amendment purposes

The recent Second Circuit decision in Harris v. O’Hare, 2014 WL 5471749 [2nd Cir. 2014], decided on October 30th, addresses and expands upon the concept of curtilage, a topic infrequently addressed in judicial opinions (common though it may be in dinner party and happy hour conversation). The Court’s examination of curtilage was important in Harris (and may be useful in other cases) because it delineates an area in which an individual enjoys an expectation of privacy protected by the Fourth Amendment.

So what is curtilage?  The curtilage of a dwelling house is the land immediately surrounding it, and excluding any associated “open fields beyond.”  In Harris, the Second Circuit noted that curtilage is a concept that “originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself” (Id. at *7, quoting United States v. Dunn, 480 US 294, 300 [1987]).  Black’s Law Dictionary [1891] defines curtilage as:
The enclosed space of ground and buildings immediately surrounding a dwelling-house. In its most comprehensive and proper legal signification, it includes all that space of ground and buildings thereon which is usually enclosed within the general fence immediately surrounding a principal messuage [house] and outbuildings, and yard closely adjoining to a dwelling-house, but it may be large enough for cattle to be levant and couchant therein.  
To be what, you say? “Levant and couchant” (Black’s again): rising up and lying down, referring to trespassing cattle that have remained long enough to have lain down to rest and risen up to feed; generally for the space of a night and a day, or, at least, one night.

So generally, curtilage is the area around your house big enough for a trespassing cow to sleep in overnight.  What if you want to determine the size of your curtilage and don’t have a bovine-based measuring device handy? You could borrow one, or you could read Harris. Fast forward to December 20, 2006.  

Two City of Hartford police officers got a tip from a snitch that two illegal handguns were stashed under the front seat of an abandoned Nissan Maxima in the backyard of 297 Enfield Street in Hartford. Without making any efforts to corroborate this information (which turned out to be false), the officers went to the location, a single family dwelling occupied by Mr. Harris, his girlfriend, his twelve-year-old daughter K., and two St. Bernard dogs, Seven and Deuce. The home was surrounded by a chainlink fence that did not obstruct the officers’ view of the yard. There was an SUV in the driveway, but no Nissan to be found.  

The officers did not circle the block or the home to get a better view of the back yard, nor did they attempt to speak to the homeowner. Instead, the officers opened the gate and entered the fenced-in yard with guns drawn. As they did, K. was in the back yard with Seven, who she had let outside, on of her after-school chores. After relieving himself, Seven ran around the house in one direction and K. ran around the in the other direction. Officer JohnMichael O’Hare, seeing Seven running in his direction, believed the dog was chasing him.  He shot the St. Bernard twice at point blank range, shots that K. heard but did not see. As she rounded the opposite corner of the house, she saw Officer O’Hare, gun drawn, standing over Seven who was lying on the ground.  When K. begged O’Hare not to shoot her dog, he shot the dog again in the head, in front of her. No Nissan and no guns were ever found.

So after O’Hare has already neutralized the vicious St. Bernard, when 12-year-old K. asks him not to shoot her dog (who at that point is probably already dead), he shoots the dog again, in front of her. What an a-hole, eh? (the decision doesn’t say this exactly, but it might as well). K.’s father thought so too, and brought an action for damages stemming from the officers’ warrantless entry onto his property.

The central issue became: did the officers need either a warrant or probable cause plus exigent circumstances to enter the fenced-in yard? (i.e., was the fenced-in yard curtilage that was entitled to Fourth Amendment protection?). The trial jury returned a verdict for the defendants and, answering a special-verdict interrogatory, found that exigent circumstances justified the defendant’s warrantless intrusion into plaintiffs’ yard.  In response to plaintiff’s post-trial motions, the district court found both probable cause and exigent circumstances, and affirmed the jury’s verdict. 

On appeal, the Second Circuit rejected the findings of both probable cause and exigent circumstances, then went on to rule that the district court’s focus on exigent circumstances represented a finding, sub silencio, that exigent circumstances were necessary – i.e., that the fenced-in area around the house was protected by the Fourth Amendment. The Second Circuit agreed with this finding and went on to re-examine and clarify the concept of curtilage, holding that: 
At the time of the intrusion, it was also clearly established that a fenced-in side or backyard directly abutting a single-family house constitutes curtilage. Brucuglio v. Proulx, 67 Fed. App'x 58, 61 (2003) (“At the time of events giving rise to this action, it was clearly established that ... a fenced-in backyard is ‘curtilage’ entitled to Fourth Amendment protection.”) (citing Dunn, 480 U.S. at 300; Oliver v. United States, 466 U.S. 170,180 (1984)); see also United States v. Romero–Bustamente, 337 F.3d 1104, 1108 (9th Cir.2003) (holding that a yard that was “small, enclosed, adjacent to his house, and located behind his house; under Dunn, as a matter of law ... falls within the curtilage”). Curtilage questions are resolved with reference to four factors, including  
[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.
 Dunn, 480 at 301. The first three of the Dunn factors indisputably favor the conclusion that the side and backyard were curtilage. First, the area is in close “proximity ... to the home.” Dunn, 480 U.S. at 300. Second, the area is “included within an enclosure surrounding the home.” Id. Third, the officers had no reason to think that this area was put to any uses other than those associated with a home.
Furthermore, this Court’s prior reasoning in Reilly “clearly foreshadow[s] a particular ruling on the issue” of curtilage in the present case. Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010).  Nearly twenty years ago, we concluded that the curtilage of a criminal defendant’s home extended to a cottage located 375 feet from the main residence, because the entire property was enclosed by a single wire fence, some hedgerows, and woods, with no interior fencing separating the cottage from the main residence. United States v. Reilly, 76 F.3d 1271, 1277–79 (2d Cir.1996); see also Dunn, 480 U.S. at 301 n. 4 (“[F]encing configurations are important factors in determining curtilage.”).  And as in this case, the “actual use” of the land in Reilly included such “private activities” as cooking, swimming, Reilly, 76 F.3d at 1278, and other “intimate activity associated with the sanctity of a ... home and the privacies of life,” Dunn, 480 U.S. at 300. 
As the Supreme Court has explained, “for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage—as the area around the home to which the activity of home life extends—is a familiar one easily understood from our daily experience.” Oliver, 466 U.S. at 182 n. 12; see also Florida v. Jardines, 133 S.Ct. 1409,1414–15 (2013) (identifying a front porch as an “easy case” under the “ancient and durable” common law principles of curtilage, which would regard the porch as an “exemplar of an area adjacent to the home and to which the activity of home life extends”).  This case provides no exception.  Accordingly, it would not have been “objectively reasonable” for the officers to believe their acts did not encroach upon Plaintiffs’ protected curtilage. Okin v. Vill. of Cornwall On–Hudson Police Dep’t, 577 F.3d 415, 433 (2d Cir. 2009).  Based upon the foregoing, we conclude that the officers are not entitled to qualified immunity for their Fourth Amendment intrusion.
The Second Circuit then reversed the district court's judgment and remanded the case for a new trial on the issue of damages based on the officers' Fourth Amendment violation.

No comments:

Post a Comment