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In using the Fourth Amendment to the advantage of their clients, lawyers must distinguish between: (1) a “house,” which is provided full Fourth Amendment protection; and (2) the “curtilage.” A warrantless search of the former will send up red flags to any criminal defense attorney, but the latter, despite receiving somewhat less Fourth Amendment protection, is still encompassed within the meaning of the term “house.” The United States Supreme Court defines “curtilage” as “the land immediately surrounding and associated with the home.”[1] This is a fancier way of saying the “curtilage” is basically your front porch, driveway, or backyard: the area outside of your home where you still enjoy intimate and private activity.
Now let’s say you’re a police officer driving around a neighborhood who just received a call about a stolen vehicle in the area, a silver Honda Accord. Eventually, you spot a car matching that description in the backyard of a home. You know the license plate of the stolen Accord, but can’t make it out from the road. Is it okay to walk down the driveway and go into the backyard for a closer look? After all, you wouldn’t be going into anyone’s home, the car is in plain sight for all to see, and the Fourth Amendment doesn’t prohibit the you from viewing evidence that is in plain sight.
According to the Minnesota Court of Appeals in a decision reached last week, the answer is firmly no. In State v. Chute, the court of appeals reversed a receiving stolen property conviction. The case arose after a complaint was made that a stolen camper was sitting in Mr. Chute’s backyard. The alleged victim met an officer outside Mr. Chute’s home and identified the camper as his. The officer confirmed the make and model of the camper to the stolen one.
So far, so good. At this point, the officer could have chosen to interview Mr. Chute to request proof that the camper belonged to him, and if Mr. Chute was uncooperative, attempted to get a warrant to search the backyard. But the officer instead chose to walk down the driveway towards the backyard because he had been told by the victim that the camper possessed a unique set of “bolts” that would corroborate for sure that the camper was his. After confirming the presence of the bolts, which were only visible after walking down the driveway (read that and think: “curtilage”) Mr. Chute walked out of his garage and the officer pressed him for his consent to search the rest of his property. After finding the victim’s personal items in Mr. Chute’s garage and house, he was eventually charged with receiving stolen property.
The district court ruled the initial search in the driveway of the camper to identify the “bolts” was permissible under the “plain view” doctrine, which is an exception to the Fourth Amendment warrant requirement. There are, however, three elements the state must satisfy before using the doctrine: (1) that the officer is observing the evidence from a lawful vantage point; (2) that the officer has a right of access to the object; and (3) that the incriminating nature of the evidence is immediately apparent. The problem for the officer was that the “incriminating nature” of the camper in the backyard was not immediately apparent until the “bolts” were actually observed. And, furthermore, the officer was not in a “lawful vantage point” to begin with because he had entered Mr. Chute’s driveway (“curtilage”) without a warrant and for the purpose of conducting a criminal search.
But didn’t Mr. Chute consent to the search of his garage and home, in which the property belonging to the victim was found, linking him to the crime? This was the last ditch effort by the state to overcome the fact that the officer had impermissibly entered Mr. Chute’s curtilage. And it might have worked, if the officer or a different officer had requested to search his home the next day or some period of time later. Consent is typically a powerful exception to the warrant requirement relied upon by the state frequently. Here, however, the court found that the “unlawful taint” of the illegal search in the “curtilage” had not been “purged” by the time the officer asked to search the property. Translation: an officer cannot walk into your home, observe something that indicates criminal behavior, then voluntarily get your “consent” to search your property because there is no likelihood that the consent would be voluntary at all in those circumstances. Mr. Chute’s conviction, was, therefore, reversed.
So does this mean that when the police walk into your driveway or porch and knock on your door to ask you questions, any evidence they collect as a result can never be used against you? The answer to that, is, emphatically no. It is important to recognize the distinction made by the court in this case, and why the officer’s actions constituted a Fourth Amendment violation. Just like you have an “implied invitation” to walk up to your neighbor’s door and ask for a favor, it is “implied” that the police are free and welcome to enter your driveway or porch (curtilage) for the purpose of asking questions. That “implied” invitation doesn’t extend to the police searching for evidence, however, which is what the officer was doing.[2] The case saying this is a Fourth Amendment violation is a recent one: Florida v. Jardines – decided in 2013. Mr. Chute’s reversed conviction is evidence that this is a case Minnesota criminal defense attorneys should remember.
Matthew B. Trevor graduated summa cum laude from Mitchell Hamline School of Law in St. Paul. There, he was an Assistant Editor on Law Review and received CALI Awards for both Criminal and Constitutional Law. He was also a Mitchell Hamline Fellow; clerked for the Washington County Public Defender’s Office, the Appellate Office for the Minnesota Public Defender, and the United States Attorney’s Office. Minnesota Criminal Defense Lawyer; Criminal Defense Attorneys St. Paul; and Fourth Amendment Violation Attorney.
[1] Oliver v. United States, 466 U.S. 170, 180 (1984).
[2] Florida v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013) (Involving drug sniffing dogs taken by police onto a porch. The Court held that officers do not have an implied license for the physical invasion of curtilage).
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