By Ken Wallentine
Commonwealth v. Leslie, 2017 WL 1885833 (Mass. 2017)
An officer conducting plainclothes surveillance saw Leslie walk up to the front porch of a triplex residence known for gang and gun activity. The yard around the triplex was fenced. A common porch ran the along the front of the residence. As Leslie walked up to the porch, he rapidly looked from side to side, as if looking to see whether he was being watched, and then crouched down, appearing to manipulate an object. The officer believed that Leslie was stashing a gun.
The officer next saw Price walk over to the same part of the porch, look from side to side and crouch down. Leslie walked back to the same spot twice more, each time looking around and crouching down. The third time that Leslie walked to the porch, he stood and pantomimed firing a long gun into the air. The officer called for other officers to assist.
Several officers walked up the sidewalk of the residence and began to talk to the four men on the porch. One officer walked to the side of the porch, where Leslie had thrice walked and bent down. The officer saw a sawed-off shotgun on the ground under the porch. The shotgun could not be seen from the street or from the fence near the sidewalk, but it was in plain view from the left side of the yard if one walked behind a recycling bin in the yard.
The officers arrested Leslie and Price. Leslie challenged the admission of the illegal shotgun. The trial court ordered suppression of the gun, relying on Florida v. Jardines (133 S.Ct. 1409 (2013)). In Jardines, the Supreme Court held that a warrantless drug detector canine sniff of a front porch of a single-family home was an improper search.
The front porch of a residence is generally part of the curtilage, requiring a warrant, consent or some other Fourth Amendment warrant requirement exception. The court was faced with the question of whether the officer’s movement to the side yard of the triplex was within the curtilage of the home, triggering the warrant requirement.
The Supreme Court has yet to rule on whether porches and side yards of a multifamily dwelling are within the constitutionally protected curtilage. Lower courts facing this question have applied a four-factor test from United States v. Dunn (480 U.S. 294 (1987)) to define the area of “curtilage”:
1. Proximity to the home
2. Whether it is fenced or otherwise enclosed
3. The nature of the use of the area
4. Efforts the resident takes to screen the area from public view
Considering the Dunn test, the Massachusetts Supreme Court held that the porch and side yard area were protected as part of the curtilage: “The intrusion into the side yard to search for a suspected hidden weapon was no different from bringing a drug-sniffing dog to the front porch of a single-family home.” Thus, the shotgun could not be used as evidence against Leslie and Price.
What might an officer do to bring a different result? Would asking a suspected gang member for consent to look under the porch always fail? The court didn’t describe the neighboring property, but there might have been another vantage point that allowed a view of the shotgun and didn’t intrude on the curtilage. We don’t know what might have happened; even so, slowing down to think about Fourth Amendment questions is often helpful.
CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.