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United States v. Alexander

United States Court of Appeals, Second Circuit

May 1, 2018

United States of America, Appellee,
v.
Robert Alexander, Defendant-Appellant.

          Argued: October 30, 2017

         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.

          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.

          Before: Lynch and Carney, Circuit Judges, and Hellerstein, District Judge. [*]

          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 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 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 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.

         Alexander 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).

         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, 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 ...


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