Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Date: 03-07-2024
Case Style:
Case Number: 22-1247
Judge: Joel McElroy Carson III
Court: UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
Plaintiff's Attorney: The United States Attorney’s Office for
Jena Rose Neuscheler, Assistant United States Attorney
Defendant's Attorney:
Description:
The Denver Police Department (DPD) received information from a
confidential informant (CI) that an individual was selling methamphetamine at
836 North Linley Court. While conducting surveillance the DPD observed various
people enter the residence, stay for around five to ten minutes, and then leave. The
DPD used its CI to conduct two separate controlled buys. Both times, the CI entered
the residence and bought methamphetamine. Based on this information, the DPD
obtained a search warrant for the place described as “836 North Linley Court, a
single family structure with green siding and trim on the east side of North Linley
Court with a black metal security door with the numbers ‘836’ to the right of the door
in black.”
The property at 836 North Linley Court contained two structures: the main
residence and a detached garage. A brick and wrought iron fence lined the property’s
front perimeter and a chain link fence extended from the sides of the detached garage
and lined the property’s back perimeter. The detached garage stood about twentyAppellate Case: 22-1247 Document: 010111011614 Date Filed: 03/07/2024 Page: 2
3
five feet away from the residence with a walkway connecting the two structures. The
detached garage had two boarded-up windows and a door facing the backyard and the
residence. A sealed and inoperable garage door faced the alley.
On October 24, 2018, the DPD Special Weapons and Tactics (SWAT) team
executed the warrant, securing the residence, the occupants, and the backyard. At the
time of the raid, the SWAT team had no visibility into the detached garage because
of the boarded-up windows. The SWAT team breached the detached garage to secure
the interior. The SWAT team found Defendant sleeping on a bed and ordered him to
exit. Defendant arose from the bed, shoved a plastic bag into his rear pocket, and
exited the detached garage where the SWAT team detained Defendant. Officers
performed two pat downs on Defendant and found cocaine, methamphetamine, and
heroin.1
Defendant moved to suppress the evidence found on his person. The district
court denied the motion and a jury convicted Defendant of possession with intent to
distribute methamphetamine, cocaine, and heroin. The district court sentenced
Defendant to 210 months’ imprisonment. Defendant now appeals the district court’s
denial of his motion to suppress.
II.
“We look at the totality of the circumstances in reviewing the denial of the
motion to suppress.” United States v. Dennison, 410 F.3d 1203, 1207 (10th Cir.
1 Defendant challenged the second pat down before the district court but
abandoned that challenge on appeal.
Appellate Case: 22-1247 Document: 010111011614 Date Filed: 03/07/2024 Page: 3
4
2005) (citing United States v. Gay, 240 F.3d 1222, 1225 (10th Cir. 2001)). “When
reviewing the denial of a motion to suppress, we view the evidence in the light most
favorable to the government, accept the district court’s findings of fact unless clearly
erroneous, and review de novo the ultimate determination of reasonableness under
the Fourth Amendment.” United States v. Windom, 863 F.3d 1322, 1326 (10th Cir.
2017) (quoting United States v. Mosley, 743 F.3d 1317, 1322 (10th Cir. 2014)).
III.
The Fourth Amendment provides that “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated.” U.S. Const. amend. IV. The Fourth Amendment requires that
warrants “particularly describ[e] the place to be searched, and the persons or things
to be seized.” Id. “The particularity requirement ‘ensures that the search will be
carefully tailored to its justifications.’” United States v. Otero, 563 F.3d 1127, 1131–
32 (10th Cir. 2009) (quoting Maryland v. Garrison, 480 U.S. 79, 84 (1987)).
“[P]ractical accuracy rather than technical precision controls the determination of
whether a search warrant adequately describes the place to be searched.” United
States v. Simpson, 152 F.3d 1241, 1248 (10th Cir.1998) (quoting United States v.
Hutchings, 127 F.3d 1255, 1259 (10th Cir. 1997)).
Defendant argues that the warrant did not authorize the DPD’s search of the
detached garage because the warrant and supporting affidavit contained no reference
Appellate Case: 22-1247 Document: 010111011614 Date Filed: 03/07/2024 Page: 4
5
to the detached structure.
2
But police may search a detached structure not directly
referenced in a warrant if the curtilage contains the detached structure. See United
States v. DePugh, 452 F.2d 915, 920 (10th Cir.1971) (citing Steele v. United State
No. 1, 267 U.S. 498, 503 (1925)) (holding that the description is sufficient if it
“enable[s] the officers to ascertain the place to be searched”). We have consistently
held that a search warrant authorizing a search of a certain place includes any
detached structures and vehicles located within its curtilage. For example, in United
States v. Earls, we held that a search warrant authorized the search of a detached
garage, shed, and office because the detached structures fell within the curtilage,
even though the search warrant did not describe them.
3
42 F.3d 1321, 1327 (10th
Cir. 1994); see also United States v. Sturmoski, 971 F.2d 452, 458 (10th Cir. 1992)
(upholding the search of a horse trailer in the curtilage of a residence even though the
warrant did not specifically state it); United States v. Gottschalk, 915 F.2d 1459,
1461 (10th Cir. 1990) (upholding the search of vehicles in the curtilage of residence
2 The government conceded at the district court that the search warrant did not
include the detached garage. But “[i]t is well-settled that a court is not bound by
stipulations of the parties as to questions of law.” Koch v. U.S. Dep't of Interior,
47 F.3d 1015, 1018 (10th Cir. 1995) (quoting Dimidowich v. Bell & Howell,
803 F.2d 1473, 1477 n.1 (9th Cir. 1986)). Whether a detached structure was within
the curtilage is a question of law. United States v. Cousins, 455 F.3d 1116, 1121 n.4
(10th Cir. 2006) (en banc footnote).
3 Defendant argues that Earls is distinguishable because the search warrant in
Earls stated, “the premises” and the search warrant here stated, “the place.” We are
not persuaded that this distinction makes a difference. In Earls, we reached our
conclusion because the detached structures were within the curtilage, not because the
search warrant stated, “the premises.” 42 F.3d 1321, 1327.
Appellate Case: 22-1247 Document: 010111011614 Date Filed: 03/07/2024 Page: 5
6
even though they were not specifically enumerated in the warrant). So we must
determine whether the detached garage falls within the curtilage of the residence.
We hold that it does.
The curtilage and the home receive the same Fourth Amendment protections
because “the curtilage is the area to which extends the intimate activity associated
with the ‘sanctity of a man’s home and the privacies of life.’” Oliver v. United
States, 466 U.S. 170, 180 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630
(1886)). We review the curtilage determination de novo. United States v. Cousins,
455 F.3d 1116, 1121 n.4 (10th Cir. 2006) (en banc footnote).
To determine the curtilage of the residence, we consider four factors: (1) “the
proximity of the area claimed to be curtilage to the home;” (2) “whether the area is
included within an enclosure surrounding the home;” (3) “the nature of the uses to
which the area is put;” and (4) “the steps taken by the resident to protect the area
from observation by people passing by.” United States v. Dunn, 480 U.S. 294, 301
(1987) (citing California v. Ciraolo, 476 U.S. 207, 221 (1986) (Powell, J.,
dissenting)). The Dunn factors are useful analytical tools that bear upon our primary
inquiry of “whether the area in question is so intimately tied to the home itself that it
should be placed under the home's ‘umbrella’ of Fourth Amendment protection.” Id.
Proximity. The close proximity of the detached garage to the residence
suggests that it falls within the curtilage of the residence. The detached garage was
about twenty-five feet from the main residence, and a walkway through the backyard
Appellate Case: 22-1247 Document: 010111011614 Date Filed: 03/07/2024 Page: 6
7
connected the detached garage to the main residence.
4
See United States v. Diehl,
276 F.3d 32, 39 (1st Cir. 2002) (holding that the curtilage included a driveway
eighty-two feet from the camp); United States v. Reilly, 76 F.3d 1271, 1277 (2d Cir.)
(holding that the curtilage included a cottage 375 feet from the main house), aff’d
and amended, 91 F.3d 331 (2d Cir. 1996).
Enclosure. The fence enclosure supports that the curtilage includes the
detached garage. A chain link fence surrounded the backyard and connected to the
detached garage. The fence did not enclose the entire building of the detached
garage, but the fence started and ended at the detached garage and the garage door
was inoperable—creating a full enclosure and requiring anyone wishing to enter the
detached garage to do so from inside the fence. Thus, the fence and the detached
garage “serve[d] to demark a specific area of land immediately adjacent to the house
that is readily identifiable as part and parcel of the house.” Dunn, 480 U.S. at 302;
see also United States v. Swepston, 987 F.2d 1510, 1515 (10th Cir. 1993) (holding
that an unfinished fence encircling both the house and the chicken shed supported
that the curtilage included the chicken shed), abrogated on other grounds by Cousins,
455 F.3d at 1121 n.4.
Nature of the use of the area. The third factor requires us to examine “the
nature of the uses to which the area is put.” Dunn, 480 U.S. at 301. A “detached
4 We have held that a driveway entrance “several hundred feet” from the house
was not part of the curtilage, a dramatic difference from the twenty-five feet here.
Rieck v. Jensen, 651 F.3d 1188, 1193 (10th Cir. 2011).
Appellate Case: 22-1247 Document: 010111011614 Date Filed: 03/07/2024 Page: 7
8
garage . . . [is] the type of building[] which [is] ordinarily a part of residential
property” as the activity of storing a vehicle in a detached garage is intimately tied to
home life. Earls, 42 F.3d at 1327; Collins v. Virginia, 138 S. Ct. 1663, 1575 (2018)
(holding that the curtilage included a driveway and “a parking patio or carport into
which an officer can see from the street is no less entitled to protection from trespass
and a warrantless search than a fully enclosed garage”). Here, the overhead garage
door was sealed, inoperable, and prevented the storage of a vehicle. Even with this
information, the officers had no objective data indicating the use of the garage. But
intimate activities of the home occurred in this detached garage.5
Defendant used the
detached garage as a living quarter. The detached garage had clothes, mouthwash,
multiple chairs, a mirror, lamps, and drinks. Officers also found Defendant sleeping
in a bed. Defendant used the detached garage as a bedroom, and the activities that
occur in a bedroom are the type of private intimate activities that occur in the home.
5 Justice Scalia opined that the officer’s objective data about the use of the
property lacked significance. Dunn, 480 U.S. at 294 (Scalia, J. concurring). The
officer’s perception is “no more relevant to whether the barn was curtilage than to
whether the house was a house.” Id; see also United States v. Cousins, 455 F.3d
1116, 1122–23 (10th Cir. 2006) (reviewing the actual use of the side yard and not
officers knowledge to determine whether it’s within the curtilage); United States v.
Diehl, 276 F.3d 32, 40 (1st Cir. 2002) (holding that officers’ objective evidence of
intimate use is not required); Harris v. O'Hare, 770 F.3d 224, 240 (2d Cir. 2014)
(considering the actual use); United States v. Reilly, 76 F.3d 1271, 1278 (2d Cir.
1996) (considering both the actual use of the area and the officer’s objective
knowledge and holding that the test is the actual intimate and private use made of the
property); United States v. Davis, 530 F.3d 1069, 1079 (9th Cir. 2008) (looking to
both the actual use of storing bulk food, wine, Christmas decoration and the officer’s
knowledge of marijuana smell); United States v. Johnson, 256 F.3d 895, 917 (9th Cir.
2001) (using both officer’s knowledge and how the homeowner actually made use of
the property).
Appellate Case: 22-1247 Document: 010111011614 Date Filed: 03/07/2024 Page: 8
9
Shielding from public view. The public could not observe the interior of the
detached garage, which weighs in favor of the notion that the detached garage existed
within the curtilage. The detached garage had two windows and one door, all of
which faced the main residence and not the public alley. The sealed inoperable
overhead garage door was the only entrance facing the public alley. The two boarded
up windows protected the interior from public observation. After reviewing the
Dunn factors, we conclude that the curtilage included the detached garage. Thus, the
search warrant authorized the search of the detached garage.6
IV.
Defendant also argues that officers unreasonably detained him because his
detention occurred outside the immediate vicinity of the premise to be searched. We
disagree. “Detentions incident to the execution of a search warrant are reasonable
under the Fourth Amendment because the limited intrusion on personal liberty is
outweighed by the special law enforcement interests at stake.” Bailey v. United
6 Arguably, Defendant used the detached garage as a separate residence. But
here, the property line and address encompassed the detached garage, and the same
fence around the main residence connected to the detached garage. Nothing the
officers observed, including the sealed and inoperable garage door, placed them on
notice that Defendant used the detached garage as a separate residence until after
officers breached it. See United States v. Smith, 531 F.3d 1261, 1266 (10th Cir.
2008) (holding that the warrant included the garage apartment because officers were
not on notice about the separate residence); Harman v. Pollock, 446 F.3d 1069, 1080
(10th Cir. 2006) (holding that officers had no reason to believe that detached garage
was a separate residence even though garage had separate address and mailbox,
certain vehicles parked on property were not used by residents of main house, and
Operation Order described simultaneous raids on “residence # 1” and “residence
# 2”).
Appellate Case: 22-1247 Document: 010111011614 Date Filed: 03/07/2024 Page: 9
10
States, 568 U.S. 186, 202 (2013). Officers have three law enforcement interests in
detaining an occupant during the execution of a search warrant: officer safety,
facilitating the completion of the search, and preventing flight. Michigan v.
Summers, 452 U.S. 692, 702–03 (1981). But the detention must occur within the
“immediate vicinity of the premises to be searched.” Bailey, 568 U.S. at 201. The
search warrant authorized the search of the detached garage, and thus the immediate
vicinity included the detached garage, and anyone inside it, such as Defendant.
Defendant’s detention was reasonable under the Fourth Amendment.
Outcome:
Plaintiff's Experts:
Defendant's Experts:
Comments: