©2011 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (LLRMI.COM) United States v. Diaz, 2010 U.S. App. LEXIS 24958 (11th Cir. Decided December 7, 2010 Unpub.)
On December 7, 2010, the Eleventh Circuit Court of Appeals decided the Unites States v. Diaz [i], which serves as an excellent review of several important legal issues that often confront law enforcement officers; particularly, this case covers entry onto private premises, the concept of curtilage, the consent searches, and search warrants. The facts of Diaz, taken directly from the case, are as follows:
On January 26, 2009 Officers Wolfe and Devinny drove onto Diaz’s property through an open driveway to conduct a “knock and talk” interview with Diaz in connection with an investigation. The property consists of about 50 acres of land of two adjoining parcels with two residences and two barns. The officers entered one property and drove on an unobstructed path to the second property where they observed Diaz’s truck parked near a barn. When the officers arrived at the barn, both sliding doors were open and the officers could see through to the interior of the barn. Officer Wolfe walked through the barn and called out, but no one answered. While standing just inside barn door, the officers were startled to see Diaz come up from a hidden hatch in the floor of the barn. Officer Wolfe drew his gun, handcuffed Diaz and advised him that he was being detained, but not under arrest. Diaz responded, “But you are going to arrest me, there’s a lot of marijuana down there.” Officer Devinny read Diaz his Miranda warnings. Diaz consented to a search of both parcels of land, including the two residences and two barns, and signed a written waiver form agreeing to cooperate. Upon their immediate search, the officers discovered an underground marijuana grow operation when they entered the room below the barn floor. In addition to the consent search, the officers also obtained warrants to search both properties which they executed the following day. [ii]
Diaz filed a motion to suppress the evidence which was denied. He appealed the denial of his motion to suppress to the Eleventh Circuit Court of Appeals raising four issues on appeal. The issues are as follows:
Whether the officers violated the Fourth Amendment by entering Diaz’s property under the pretext of a “knock and talk?”
Whether the officers violated the Diaz’s Fourth Amendment reasonable expectation of privacy when they went to his barn and entered it without consent or a warrant?
Whether the officers coerced his consent to search his property?
Whether the later search warrants were based upon evidence obtained during Diaz’s alleged Fourth Amendment violations?
Did the officers violate the Fourth Amendment by entering Diaz’s property under the pretext of a “knock and talk?”
At the outset, the Eleventh Circuit looked to its precedent on this issue. In the United States v. Taylor, the court held
The Fourth Amendment however, is not implicated by entry onto private land for legitimate police purposes unconnected with a search of the premises. Absent express orders from the person in possession, an officer may walk up the steps and knock on the door of any man’s castle, with the honest intent of asking questions of the occupant thereof.” Id. (quotations omitted). We have referred to this principle as the “knock and talk” exception to the Fourth Amendment’s warrant requirement. During the course of a knock and talk, officers may take reasonable steps to initiate contact by visiting areas of the property other than the front door. [iii]
In Diaz’s case, the officers entered his property through an open gate in order to contact Diaz at his house. The officers then learned that Diaz had gone to his barn which was located approximately 700-800 feet from his house and they drove to the barn. As such, the court held that since the officers took reasonable steps to contact Diaz on his property, the Fourth Amendment was not implicated simply by driving onto his property and following him to the barn.
Did the officers violate the Diaz’s Fourth Amendment reasonable expectation of privacy when they went to his barn and entered it without consent or a warrant?
In examining this issue, the court noted that they have previously held
[T]here is no legitimate expectation of privacy in outbuildings and open fields, even if fenced, unless they are part of the curtilage, or the immediate appurtenances, of a home. [iv]
Factors that the court uses to determine whether an area is constitutionally protected curtilage are as follows:
1) the proximity of the area claimed to be curtilage to the home; (2) the nature of the uses to which the area is put; (3) whether the area is included within an enclosure surrounding the home; and, (4) the steps the resident takes to protect the area from observation. [v]
In applying the rules above to the facts of Diaz’s case, the court noted that the barn was located 700-800 feet from Diaz’s home and 80 feet from an unoccupied home. The court then held that the officers did not violate the Fourth Amendment because the barn that the officers entered was not considered “curtilage,” and thus was not afforded the protection of the Constitution.
Did the officers coerce Diaz’s consent to search his property?
The court noted that officers can search constitutionally protected areas without a warrant if they have the voluntary consent of the possessor of the property. [vi] In determining whether consent is voluntary, the court will look at the totality of the circumstance surrounding the consent. [vii]
In Diaz, the district (trial) court found that, although English was Diaz’s second language, he understood English well and was intelligent. Further, although there were three officers present during Diaz’s consent, the trial court held that he was not coerced. The Eleventh Circuit thus held that there was no evidence the district court erred in this determination that the consent was voluntary.
Were the later search warrants based upon evidence obtained during Diaz’s alleged Fourth Amendment violations?
It is well known that search warrants must be based upon probable cause. The court held that the officer’s observations of the marijuana provided probable cause for the warrants. Further, since the previous three issues which describe how the officer came to view the marijuana were resolved in favor of the government, the officers thus, lawfully viewed the marijuana. As such, the evidence was admissible.
A final point raised by Diaz was that the officers relied on information in the affidavit provided by an anonymous source without establishing veracity of the informant. However, the court stated that when the information provided by an informant is corroborated by other information, the police do not need to establish the informant’s veracity. Here, the information was corroborated by the officer’s lawfully located marijuana on Diaz’s property.
As such, the judgment of the district court was affirmed.
NOTE: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
SEE RELATED ARTICLES:
Warrantless In-Home Arrests and Threshold Arrests (2010)
Underage Possession of Alcohol and Warrantless Home Entry (2010)
9th Circuit Upholds Warrantless Search of Motor Home (2010)
When Imminent Destruction of Evidence Authorizes Warrantless Home Entry (2008)
Consent, Exigent Circumstances, and Warrantless Home Entry (2008)
[i] 2010 U.S. App. LEXIS 24958 (11th Cir. Decided December 7, 2010 Unpub.)
[ii] Id. at 2-3
[iii] Id. at 4 (see United States v. Taylor, 458 F.3d 1201, 1204-1205 (11th Cir. 2002))
[iv] Id. at 5 (citing United States v. Long, 674 F.2d 848, 853 (11th Cir. 1982)
[v] Id. at 6 (citing Taylor, 458 F.3d at 1206)
[vi] Id. at 7 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973))
[vii] Id. (citing United States v. Tovar-Rico, 61 F.3d 1529, 1535 (11th Cir. 1995))