U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Court Reverses Backyard Search

No thanks to himself, Robert Alexander got lucky.

Shortly after three in the morning, he was outside his house with a bottle of vodka in his hand standing next to a car when police officers approached. They saw drugs in the vehicle and arrested the passengers.

"Out of respect," Alexander, a convicted felon, told the officers, he was "just going to put the liquor bottle in the back." Naturally the officers checked his backyard and found two guns, but Alexander got a break in United States of America v. Alexander.

Warrantless Search

First, however, Alexander was charged with one court of being a felon in possession of a firearm and one count of possessing a defaced firearm. He moved the court to suppress the guns, saying the search violated his Fourth Amendment rights.

The judge denied the request, leading to a conviction and a sentence of 51 months in prison and three years supervised release. Alexander appealed.

The Second Circuit said it was a matter of curtilage. Police found the guns "just a few steps from Alexander's back door" -- "the very definition of curtilage."

Applying other touchstones from United States v. Dunn, the appeals court concluded police invaded the curtilage of Alexander's house. In other words, they should not have searched his backyard without a warrant or probable cause.

NIMBY Rules

The appeals court said there is no mechanical rule for such cases, but the factors weighed in Alexander's favor.

"(I)t is not necessary to turn a residential property into a fortress in order to prevent the police from 'trawling' one's yard," the panel said.

Alexander could have done more to protect his interests, like erect a fence. Telling police he was "just going to put the liquor bottle in the back" probably didn't help.

In any case, the appeals court vacated his conviction, reversed the ruling on the motion to suppress and sent the case back for further orders.

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