Author Question: Was the area searched within the curtilage of the house? Officers responded to a shots-fired call ... (Read 28 times)

APUS57 · **on:** Aug 17, 2018

Was the area searched within the curtilage of the house?

Officers responded to a shots-fired call at a residential street corner at approximately 6:20 a.m., describing one of the suspects as a black male wearing a blue Nike coat. The first officer on the scene saw Zhivargo Jenkins peeking out from the corner of the house at 833 Brewer Street. When the officer called Jenkins over, Jenkins ran across the front of the house and between two cars parked in the yard, bent down beside one of the cars, an inoperative red Chevrolet Lumina, and made a throwing motion. Jenkins then ran, stopped, and surrendered. The officers searched under the Lumina and found a stolen 9mm handgun, hollow-point ammunition, and a plastic bag containing 3.6 grams of crack rocks under the Lumina and arrested Jenkins. The front yard of 833 Brewer Street was unfenced, the back yard was fenced and guarded by a dog , and the lumina was seven to eight feet from the house.

What will be an ideal response?

Question 2

Was the seizure of the money from Howard's pocket proper under the plain feel doctrine?

Jermain Howard was on probation for cocaine trafficking. His driver's license was revoked as a condition of probation. At a meeting, Wiant, his probation officer, said he saw Howard behind the wheel of a car at a shopping mall warned him against driving. After the meeting Wiant followed Howard into the parking lot and saw him place a key in the driver's side door. No one else appeared to be coming to drive the car. Wiant and a supervisor told Howard to stop. Howard complied. Because it was evening time and dark out, and many people were roaming around the streets, Wiant decided to frisk Howard for weapons before questioning him. The court decided that this stop and frisk was proper. During the pat-down, Wiant felt a lump in Howard's pocket. He testified that the lump felt like a wad of folded paper money and not a weapon. Wiant removed the cash from Howard's pocket and counted 361.00 in United States currency in Howard's presence. Wiant knew that Howard was unemployed. Howard said he received the cash from his girlfriend to pay the bill at her child's day care service. Wiant called her and received an inconsistent story. Thinking that the case came from drug dealing, the car was searched and a gun was found.
What will be an ideal response?

mcni194 · **Reply #1 on:** Aug 17, 2018

Answer to Question 1

No
The area searched, under the red Chevrolet Lumina, was close enough to the house to be within the curtilage. There is not, however, any fixed distance at which curtilage ends. Close proximity to he house is only one factor that determines whether an area is within the curtilage. Fencing is a factor. U.S. v. Dunn (1987) distinguished two kinds of fences: (1) fences that encircle the house and outbuildings can support a finding that everything within the fence belongs to the curtilage, but (2) interior fences that define off portions of the yard from the house can indicate that these fenced areas do not belong to the curtilage. The backyard at 833 Brewer Street was fences and guarded by a large rottweiler dog; because the area searched was outside the portion of the yard that was fenced, this factor negates the curtilage. Another factor is the use to which the area was put. Parking an inoperative car was not an intimate activity associated with domestic life and the privacies of the home. Another factor is the effort taken to protect the area from observation by passers by. Although the homeowner testified that he parked his second vehicle behind and at a slight angle to the Lumina and that if somebody was in the area searched without my consent, I would call the city of Fayetteville, tell them somebody in my yard, he made no effort to protect the portion of the yard where the Lumina was parked from the observation of passers by. The owner's subjective desire to exclude others was not supported with objective steps taken to exclude others and conceal the area from public view. . In sum, each factor except proximity weighs against a finding that the front yard was in the curtilage of the house at 833 Brewer Street.

Answer to Question 2

No
Although the initial frisk of Howard was justified by safety considerations, the subsequent seizure of the money in Howard's pocket exceeded the permissible scope of a Terry frisk. Under plain view and plain feel doctrines, the incriminating nature of items in plain view must be immediately apparent.