Case o' The Week: Ninth Knocks Knock & Talk - Perea-Reyes, Curtilage, and Fourth Amendment
The Supreme Court has delivered good new authority that strengthens the Fourth Amendment, that fatally undermines previous Ninth Circuit law, and that produces great results for the defense.
Hey - it can happen. United States v. United States v. Perea-Rey, 2012 WL 1948973 (9th Cir. May 31, 2012), decision available here.
Players: Big win for San Diego Ass't Fed Def. Gregory Murphy. Decision by Judge Wardlaw, joined by Judges Goodwin and visiting Judge William Sessions.
Facts: Border patrol agents followed a man who illegally crossed into the US. Id. at *1. They watched the man go to Perea-Rey's home, enter through the gated fence entrance, and knocked on the front door. Id. An agent then followed the man as he went into an adjacent carport and met Perea-Rey: both were detained. Id. Perea-Rey refused to allow the agents in the house; agents with guns pulled nonetheless ordered everyone out of the home. Id. Seven undocumented aliens were ultimately found. Id. Perea-Rey was charged with harboring undocumented aliens. Id. The district court found the carport was curtilage, but upheld (most of) the search because "there was no reasonable expectation of privacy because it could be observed from the sidewalk." Id.
Issue(s): "The district court found that the carport, which the border agents occupied, was part of the curtilage of Perea-Rey's home, and we agree." Id. "The district court . . . reasoned that because the agents were able to freely enter the carport, Perea-Rey had no reasonable expectation of privacy in the carport." Id. at *4.
Held: "The Supreme Court has explained that the role of reasonable expectation analysis in evaluating the constitutionality of searches of the curtilage is only in determining the scope of the curtilage, and the not the propriety of the intrusion." Id. "[B]ecause [the carport] was curtilage, it was constitutionally protected area, and the warrantless entry, search and seizure by the agents violated Perea-Rey's Fourth Amendment rights." Id.
Of Note: Judge Wardlaw helpfully clarifies the "confusion that has existed for decades about the "reasonable expectation of privacy" and a search of its home and curtilage. Id. at *3. As the Supremes just explained in Jones, the Katz reasonable-expectation-of-privacy test "has been added to, not substituted for, the common-law trespassory test." Id. at *4. In other words, you retain a reasonable expectation of privacy in your home and curtilage, even if they can be seen from a public area. Stuff seen may be fair game for a warrant, id., but absent another exception cannot justify warrantless entry.
How to Use: Perea-Rea's is a wonderful Fourth Amendment case -- in addition to the curtilage and Jones' analyses, it has a great limitation of the "knock and talk" doctrine. "Knock and talk" is that exception to the warrant requirement that allows cops to intrude on the curtilage to talk to occupants (and that tolerates searches done along the way). The theory of the "knock and talk" was Ninth law that focused on the subjective intent of the agents -- but that, explains Judge Wardlaw, has been made taboo by the Supreme Court. Id. at *5 (citing Kentucky v. King, 131 S. Ct. 1849 (2011)). King "implicitly overrules" the reasoning of Ninth Circuit "knock and talk" law, observes Judge Wardlaw, and won't save the search here. Id. at *6. Perea-Reyes is a very important case on "knock and talk" -- will be our starting point when fighting warrantless home and curtilage searches relying on this theory.
For Further Reading: Investigators love Perea-Rea. In an intriguing little footnote, the Court takes judicial notice of Google maps and satellite images for determining the general location of the home. Id. at n.1 (citing a case that took judicial notice of online distances calculations). Ever seen those to-the-inch measurements that Google Earth can crank out? Maybe our investigators can finally hang up their rolling measuring wheels (much to their delight). For a helpful guide on Google measurements, see Google Earth Blog here.
Image of policemen at door from http://crimlaw.blogspot.com/2012/03/can-officer-enter-residence-to-arrest.html
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org