The Advocate, Vol. 19, No. 6 (November 1997)
 
Plain View

It has been a relatively slow time for developments in the Fourth Amendment and Section Ten areas. A few cases are discussed below.

United States v. Jenkins,
124 F.3d 768 (1997)

The defendants lived in rural Kentucky on a farm, some of which was heavily wooded. Their house sat far from the road and was surrounded by a trimmed yard, small trees, and flower arrangements. Behind the yard was a field where marijuana was spotted from the air by the Governor's Marijuana Strike/Task Force of Kentucky.

Sergeant Ron West approached Linda Jenkins who was standing in her backyard. He asked her how to get to the field with the marijuana. Thereafter, without a warrant and without her consent, he and his team began collecting evidence from the backyard area. After Linda and her husband were arrested and indicted, they filed a motion to suppress, which was denied based upon a finding that the backyard was an open field outside the curtilage. A jury trial resulted in the conviction and the appeal to the Sixth Circuit.

The Sixth Circuit held that the Jenkinses' Fourth Amendment rights had been violated. Contrary to the opinion of the magistrate, the Court ruled that the backyard was within the curtilage, and thus entitled to the protections normally provided the home.

The Court relied upon factors delineated in U.S. v. Dunn, 480 U.S. 294 (1987). The Court found that the backyard was within the curtilage because the backyard was in close proximity to the house, because it was enclosed on three sides by a wire fence, because it was used for gardening, planting small trees and flowers, and finally because the defendants had taken steps to protect their backyard from observation.

Accordingly, the police violated the Jenkinses' Fourth Amendment rights when they searched the backyard without a warrant.

Short View

1. U.S. v. Redmon, 117 F.2d 1036 (7th Cir. 6/27/97), vacated, 122 F.2d 1081 (7th Cir. 9/18/97). How far can courts go in allowing the seizure of materials from a garbage can without a warrant? Here, searching garbage cans next to a garage and clearly within the curtilage was allowed. However, the Court held that the fact that the cans were located in an area between the defendant's and a neighbor's house where pedestrians walked made the defendant's expectation of privacy one that society was not prepared to recognize as being reasonable.

2. Quarles v. State, 696 A.2d 1334 (De.Sup.Ct. 6/18/97). How far can courts go in allowing for the use of the drug courier profile (where have you heard this before?) In this case, the Court used the drug courier profile and a desire to avoid the police (the right to be left alone?) as sufficient to allow for a Terry stop. The analysis? "But this Court should not turn a blind eye to the realities of society's war against drugs and the experience of the police in combating that problem. We are entitled to test the actions of the police by the exacting standards of the Fourth Amendment jurisprudence, but we should be reluctant to substitute an academic analysis for the on the spot judgment of trained law enforcement officers."

3. United States v. Garzon, 119 F.3d 1446 (10th Cir. 7/18/97). Officers do not have the authority to demand that bus passengers take off their luggage. Thus, when the defendant did not take his backpacks off the bus, but did not later disavow ownership of the backpacks, he did not abandon them, and the officers subsequent search of the backpacks was illegal.

4. State v. Carter, 569 N.W.2d 169 (unpublished) 1997 WL 561469 (Minn.Sup.Ct. 9/11/97). The Minnesota Supreme Court issued two important holdings in this case. First, the Court found that the police had violated the defendant's right to privacy by leaving the sidewalk, climbing over bushes, and looking through a crack in blinds into an apartment where the defendant was packaging drugs for sale. "[I]t is a search whenever police take extraordinary measures to enable themselves to view the inside of a private structure." The defendant, an out-of-state visitor to an apartment, was also held to have a reasonable expectation of privacy in the apartment, despite his having only been in the apartment for a brief period of time. The Court recognized the fact that the defendant had the leaseholder's permission to be in the apartment, and his presence there for a brief period of time, to establish standing. "Although society does not recognize as valuable the task of bagging cocaine, we conclude that society does recognize as valuable the right of property owners or leaseholders to invite persons into the privacy of their homes to conduct a common task, be it legal or illegal activity." Thus, evidence obtained as a result of the search was ruled to be illegal, as was the warrant which was issued based upon the search.

5. McGee v. Commonwealth, 487 S.E.2d 259 (Va Ct.App. 7/8/97). Police officers seized the defendant when they came onto his porch and told him that he matched the description of someone who had been reported to be selling drugs. "[W}hen a police officer confronts a person and informs the individual that he or she has been specifically identified as a suspect in a particular crime which the officer is investigating, that fact is significant among the 'totality of the circumstances' to determine whether a reasonable person would feel free to leave." Thus, because the anonymous tip did not did not provide adequate grounds for the seizure, the evidence found as a result of the seizure had to be suppressed.

6. Titus v. State, 696 So.2d 1257 (Fla.Ct.App. 7/2/97). There is no "rooming house" exception to the Fourth Amendment which would allow the police to enter a common area of a multi-residence building.
 

ERNIE LEWIS

Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
Tel: (502) 564-8006
Fax: (502) 564-7890
E-mail: elewis@dpa.state.ky.us


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