Argued: October 30, 2017
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.
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.
Before: Lynch and Carney, Circuit Judges, and Hellerstein,
District Judge. [*]
E. Lynch, Circuit Judge.
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 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
following facts, which are drawn from the record of the
suppression hearing, are largely undisputed.
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 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.
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
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
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 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.
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.
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.
was arrested and charged with one count of being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1) and one count of possessing a defaced firearm in
violation of 18 U.S.C. § 922(k).
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.
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
"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, 365 U.S. 505, 511 (1961). The
curtilage - 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, 569 U.S. 1, 7 (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, 770 F.3d
224, 234, 240 (2d Cir. 2014). By contrast, that portion of
private property that extends outside a home's curtilage
- what the ...