On February 13, 2023, the Seventh Circuit Court of Appeals decided the United States v. Banks[i], which serves as excellent review of the law related curtilage, the home and the Fourth Amendment.  The relevant facts of Banks are as follows:

Jeremy Banks posted the video of the gun within arm’s reach on the evening of April 8, 2021. Colton Redding, a Springfield police officer, saw the post, recognized Banks’s voice, and knew him to be a convicted felon. Officer Redding gathered a group of colleagues and, within minutes of seeing the video, headed to Banks’s home.

Upon arriving the officers saw Banks exactly where they expected to—on his porch, next to the grill. A few officers went around the back side of the house and, to avoid detection, approached the porch by walking through the backyard. The plan worked and resulted in the officers catching Banks by surprise, struggling with him, and eventually arresting him in the front room of the house. A pat down turned up a loaded 9mm semi-automatic pistol in Banks’s pocket. The officers also saw a box of 9mm rounds in the same room. The police did not have a warrant to enter Banks’s porch or to search his home.[ii]

Banks was ultimately charged with being a felon in possession of a firearm under federal law.  He filed a motion to suppress the evidence and argued the officers violated his rights under the Fourth Amendment when they entered his porch and home without a warrant to arrest him.  The district court denied the motion to suppress.  Banks pleaded guilty with the right to appeal the denial of his motion to suppress.   He then appealed the denial of the motion to suppress to the Seventh Circuit Court of Appeals.

The issue on appeal was whether the police needed a warrant to enter upon the curtilage of Banks’s residence, particularly his front porch, to arrest him for being a felon in possession of a firearm.

The Seventh Circuit first examined the legal principles relevant this issue.  First, the court stated

At the “very core” of that protection, the Supreme Court has emphasized, stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961). Indeed, when measuring the strength of the Fourth Amendment, “the home is first among equals.” Florida v. Jardines, 569 U.S. 1, 6, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013)[iii]

Thus, the home receives the most significant protection under the Fourth Amendment.

Second, the court examined precedent related to the curtilage of the home, which is the area immediately surrounding the home.  The court stated

By 1984 the Supreme Court made plain that the Fourth Amendment provides equal protection to a home’s curtilage, the area immediately surrounding the home itself. See Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). “[P]rivacy expectations are most heightened” in the curtilage, because that area is “intimately linked to the home, both physically and psychologically.” California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986). And the right to retreat into the home “would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity.Jardines, 569 U.S. at 6. Put even more directly, the curtilage is “part of the home itself for Fourth Amendment purposes.” Id. (quoting Oliver, 466 U.S. at 180).

The parallel and equivalency between a home and its curtilage means that law enforcement officers must have a warrant to enter either, unless one of a few limited exceptions applies. See Lange v. California, 141 S. Ct. 2011, 2017, 210 L. Ed. 2d 486 (2021).[iv]

Thus, the court of appeals stated that the curtilage of the home is given the same Fourth Amendment protection as the inside of home.

Third, the court discussed some exceptions to the warrant requirement.  The court stated

The exceptions allow warrantless entry when, for example, exigent circumstances exist, the resident consents to entry, or the officers conduct a knock-and-talk. See id. (explaining that exigent circumstances include rendering emergency aid, preventing the imminent destruction of evidence, or engaging in hot pursuit of a fleeing felon); United States v. Correa, 908 F.3d 208, 221 (7th Cir. 2018) (consent); see Jardines, 569 U.S. at 8 (knock-and-talk). These exceptions reflect and reinforce that the Fourth Amendment’s “ultimate touchstone” remains “reasonableness.Kentucky v. King, 563 U.S. 452, 459, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011) (citation omitted).[v]

Thus, the exceptions to the warrant requirement are consent, a knock-and-talk, exigent circumstances such as emergency aid or to prevent the destruction of evidence, and hot pursuit of a fleeing felon.

The court of appeals then applied these principles to the facts of Banks’s case.  Simply put, the front porch of Banks’s residence is curtilage, which receives the same constitutional protection as the interior of Banks’s residence.  Therefore, the police needed a warrant to enter the curtilage, in this case, the front porch, of the residence, to arrest Banks.

The officers testified that they went to Banks’s residence with the purpose of arresting him.  They testified that they believed reasonable suspicion allowed them to enter the porch to arrest Banks.  They stated there was not time to get a warrant, however in the suppression hearing the officers testified there is a magistrate on call 24 hours a day.

Since the curtilage is treated as the home for the purposes of the Fourth Amendment, the court of appeals held that officers needed a warrant.  Thus, the discovery of firearm on Banks’s person was the result of a Fourth Amendment violation; therefore, the court of appeals reversed the denial of the motion to suppress.

The court did note that it would have been permissible to go to Banks’s residence for the purpose of conducting a consensual encounter or knock-and-talk about the firearm.

Practice Pointers:

  • Officers are allowed to enter curtilage, taking the same path to the residence that any other visitor would take, knock on the door and request to speak to the occupants of the residence.
  • Similarly, when officers are dispatched to a residence, officers can respond.
  • This case simply holds that if an officer is going to a residence to make an arrest, the officer should obtain a warrant first, if possible, unless the officer will enter the curtilage with consent or based on some exigent circumstance.

 

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] No. 22-1312 (7th Cir. Decided February 13, 2023)

[ii] Id. at 2

[iii] Id. at 4 (emphasis added)

[iv] Id. at 4-5 (emphasis added)

[v] Id. at 5 (emphasis added)

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