Curtilage Intrusion to Seize Stashed Gun Was Lawful

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United States v. Richmond, 2019 (7th Cir. 2019)

Two officers were patrolling late at night, in a marked police cruiser, through a neighborhood known for drug trafficking, armed robberies and gun violence. The officers saw Antoine Richmond walking toward them with his right hand in the pouch pocket on the front of his T-shirt. The officers noted a “significant bulge” in his pocket, consistent with the bulk and location of a gun.

As the officers drove closer to Richmond, one officer made eye contact with him. Richmond changed direction and picked up his pace. The officers made a U-turn and got out of the cruiser. Richmond walked up some stairs to the front porch of an apartment. He bent over, opening the screen door and placed a dark object between the screen door and the main door. Though the officers did not know it at the time, Richmond lived in the apartment.

The officers believed Richmond had stashed a gun. While one officer questioned Richmond, the other officer walked up onto the porch and opened the screen door “as little as possible.” He saw a black handgun resting right where the officers had seen Richmond stash the dark object from his shirt pocket. Upon learning Richmond was a convicted felon, the officers arrested him.

Richmond moved to suppress the gun, arguing the officer’s act of opening the screen door constituted a warrantless search on the curtilage of his home without legal justification. In addition to the facts listed above, the officers testified Richmond was a “very well-built, muscular” man, presumably capable of quick movement and force. The officers were also concerned about unknown duplex occupants because a potentially loaded gun lay in the doorway, within easy reach.

Richmond, on the other hand, asserted he did nothing that rose to the level of reasonable suspicion. He said the officers did not know whether he was carrying the gun unlawfully or whether he had a concealed weapon permit. Moreover, when he turned away from the officers, he was heading toward his home.

The dissent stated if “Richmond had a gun, so what?” emphasizing Richmond might have been in lawful possession of the gun.

In a divided opinion, the appellate court upheld the denial of Richmond’s motion to suppress the gun. The court cited four clusters of facts that helped the judges conclude there was reasonable suspicion to detain Richmond and check for a gun: “(1) Richmond was walking down the street near midnight in a neighborhood plagued by drug trafficking and gun violence; (2) there was a significant bulge in Richmond’s front T-shirt pocket as he walked down the street; (3) in the officers’ over 25 combined years’ of police training and experiences, a protrusion like this was more often than not a gun; and (4) after the officers passed Richmond in their marked squad car, Richmond quickened his pace, changed his direction, cut across a property, and hid what they suspected was a gun between the screen door and front door.”

The court acknowledged Richmond could have had a permit for a concealed handgun. However, the officers testified their prior experience led them to conclude a person who was lawfully carrying a handgun would not hide it behind a screen door. The court also noted Richmond’s presence on a street known for violent and drug crimes—considered alone—would not support an investigative detention, but was lawfully included in the determination of reasonable suspicion. The court stated Richmond’s arguments “miss the forest for the trees: when evaluating the reasonableness of a police intrusion, we look at the totality of circumstances.”

The court further held the officers were justified in opening the screen door to examine what Richmond had stashed. Richmond contended their action was a search of his house, or at the very least, a search of the curtilage. He cited the recent Supreme Court decisions in Collins v. Virginia (138 S. Ct. 1663 (2018))—holding that the automobile exception does not provide “an officer the right to enter a home or its curtilage to access a vehicle without a warrant”—and Florida v. Jardines (569 U.S. 1 (2013)), holding that the detector dog sniff of a residential front door was a search requiring a warrant. The court distinguished these cases because in neither situation was there an immediate public safety risk. Moreover, in those cases, officers were looking for drugs or stolen property, not a gun.

The dissent stated if “Richmond had a gun, so what?” emphasizing Richmond might have been in lawful possession of the gun. The dissenting judge asserted Richmond was walking in a violent, high-crime area, which supported the logic that Richmond might want to lawfully carry a gun for protection against (other) criminals. The dissent was particularly critical of the search for the gun. The dissenting judge opined there was no basis for frisking Richmond, therefore there was no reason to look to determine whether the dark object he stashed was, in fact, a gun.

The dissent also stressed Richmond is a black man and cited public opinion among African Americans who lack confidence in the police. In theoretical hindsight, that might have been a reasonable explanation for Richmond turning and scurrying away from the officers. Further, the fact that Richmond was a large, powerful man should not have been an issue, according to the dissent. Otherwise, “physically fit men [could] be searched at will, in the name of officer safety.”

The officers only searched the area where Richmond stashed the dark object. They only looked for a gun, and only after seeing the object stashed. And they looked for a gun only after observing several factors that, in their combined quarter-century of training and experience, led them to believe Richmond was standing just a few feet from a gun he had been carrying. Admittedly, opening the front door would have constituted a search, but it was a reasonable search. The majority opinion held, “the degree of intrusion on Richmond’s privacy was as reasonable and minimal as common sense dictated in that moment based upon what the officers had seen and what they knew.”

Based on the facts, most officers would agree there was ample reasonable suspicion to believe Richmond was concealing a gun in his shirt and he dumped it when he saw the officers. Even though neither the majority nor the dissent called this a close case, many Fourth Amendment experts would. I agree with the majority: The officers very carefully limited their intrusion on what later turned out to be Richmond’s residence (he’d been crashing there with his girlfriend for a few weeks). Even so, the Supreme Court is seemingly shifting toward greater focus on property trespass analysis (promoted by the late-Justice Scalia in United States v. Jones and Florida v. Jardines). Justice Gorsuch is poised to pick up where Justice Scalia left off. The fact remains the officers did intrude on the curtilage, though reasonably so.

A critical lesson in this decision is that the officers’ careful articulation of what they saw and what they concluded before opening the screen door provided the majority with the facts essential to determining this was a reasonable Terry-like “frisk” of the door space. Talk nice, think mean and report in painstaking detail and accuracy.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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