Opinion
No. 107,596.
2013-10-1
STATE of Kansas, Appellant, v. Cyrus A. TALKINGTON, Appellee.
Appeal from Lyon District Court; Jeffry J. Larson, Judge. Vernon E. Buck, first assistant county attorney, Amy L. Aranda, acting county attorney, and Derek Schmidt, attorney general, for appellant. Stephen J. Atherton, of Atherton & Huth, of Emporia, for appellee. Before Pierron, P.J., Bruns and Powell, JJ.
Appeal from Lyon District Court; Jeffry J. Larson, Judge.
Vernon E. Buck, first assistant county attorney, Amy L. Aranda, acting county attorney, and Derek Schmidt, attorney general, for appellant. Stephen J. Atherton, of Atherton & Huth, of Emporia, for appellee. Before Pierron, P.J., Bruns and Powell, JJ.
MEMORANDUM OPINION
PER CURIAM.
This interlocutory appeal concerns one essential issue: whether a residential backyard constitutes part of the curtilage under the Fourth Amendment to the United States Constitution. Because we disagree with the district court's admittedly difficult decision finding the backyard curtilage, we must reverse and remand for further proceedings.
Facts
At about 4:30 p.m. on June 22, 2011, two law enforcement officers, Lyon County Deputy Sheriff Cory Doudican and Emporia Police Officer D.J. Dragonas, arrived at a house in Emporia. The officers believed that Matt Tucker might be at the house. The officers had an arrest warrant for Tucker and suspected that he was involved in drug-related activity.
Defendant Cyrus Talkington and another man, Derric Joshua Garrison, were standing in the front yard of the house when the officers arrived. Garrison lived at the house; Talkington was a social guest who had been to the house several times before. According to the officers, upon their arrival Garrison and Talkington released their two dogs and fled to the backyard of the house, where they were no longer visible to the officers. Moments later, Garrison and Talkington returned to the front and secured their dogs.
Doudican proceeded to ask Talkington about Tucker's whereabouts, but Talkington claimed he did not know Tucker. Without consent, Doudican then walked to the back of the house to determine if Tucker was there and to make sure that no weapons had been left behind. To access the back of the house, Doudican initially walked on an adjacent lot but then walked onto Garrison's property.
Although Doudican found neither Tucker nor any weapons, Doudican noticed a bag placed about 3 to 4 feet from the house. The bag was partially covered by insulation and was located between a PVC pipe and steps leading to the back door of the house. Apparently, Doudican saw the bag from about 60 feet away but did not realize what it was until he was within 5 to 10 feet of the bag. Doudican saw that the bag contained a crystalline substance and believed it contained methamphetamine; consequently, he told Dragonas to arrest Garrison and Talkington.
Doudican then gave Talkington his Miranda rights—see Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)—and told him he was being arrested for some methamphetamine found in the backyard. Talkington replied that he did not know anything about that. Talkington did not make any further statements to police, and he was transported to the Lyon County Detention Center, where officials found on him a bag which, they believed, contained marijuana.
The State filed a five-count amended complaint against Talkington. All five charges in the complaint either stemmed from the methamphetamine found in the backyard or the marijuana discovered at the county jail.
The State also prosecuted Garrison for possession of methamphetamine. Both Garrison and Talkington filed motions to suppress in their respective cases. Garrison's hearing occurred first, and, at the conclusion of the hearing, the district court noted its concern of “the proximity of the contraband to the house itself.” By written order, the court later granted Garrison's motion to suppress while concluding that his case was a close call.
After issuing its order in Garrison's case, the district court held Talkington's suppression hearing. Per the State's and Talkington's requests, the court incorporated all testimony made at Garrison's hearing into the record of Talkington's hearing. The State and Talkington also agreed that Talkington was a social guest of Garrison. Indeed, Talkington knew Garrison for 7 to 8 years and would help Garrison work on his car and moped during his frequent visits to Garrison's home.
In addition to the facts cited above, both suppression hearings elicited testimony concerning the layout and characteristics of the house and surrounding property. These facts are important to resolving whether the backyard constitutes part of the curtilage and, accordingly, are discussed immediately below.
The general layout of Garrison's property was not disputed at either Garrison's or Talkington's suppression hearing. Garrison's single-family house was located on .9 acres, with the majority of the land located in the backyard. A sidewalk ran in front of the house, but there was no sidewalk or visible path that extended to the backyard. Additionally, an alleyway ran along the back of the house and was not hidden from view by fencing. According to Doudican, various household items and debris were scattered throughout the property on the day of Talkington's arrest. Subsequent photographs of the property show the same.
Two signs graced the front of Garrison's house: a visible “NO TRESPASSING” sign that was accented by a nearby but smaller “NO SOLICITING” sign. Doudican did not notice either sign on the day of Talkington's arrest. Also, a 1–foot–high rock boundary marker—it was described by the district court as a “wall” even though it would be more accurately described as a boundary marker because it was so low to the ground—surrounded Garrison's house and served as a dividing line between Garrison's and his neighbors' properties. The boundary marker did not obstruct Doudican's view of the backyard. Additionally, some remnants of a chain-link fence—three posts connected by wire—ran along the north side of the house. Evidently, this fence was about 4 feet tall but would not inhibit an onlooker from viewing the backyard from an adjacent property. Doudican did not notice the fence on the day of Talkington's arrest either, though he did not traverse the north side of the house to access the backyard.
After Talkington's suppression hearing, the district court issued a written order that granted his motion to suppress. The State, in turn, filed a timely interlocutory appeal.
Did the District Court Err in Determining the Backyard was Curtilage and Therefore Protected Under the Fourth Amendment?
Standard of Review
When reviewing a motion to suppress evidence, an appellate court reviews the factual underpinnings of a district court's decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard of review. State v. Fisher, 283 Kan. 272, 280, 154 P.3d 455 (2007). The same standard is used to determine whether a particular seizure occurred within the curtilage. 283 Kan. at 286.
The State, meanwhile, bears the burden to prove that the search and seizure were lawful, and that the area where the seizure occurred was not curtilage. 283 Kan. at 284;State v. Mell, 39 Kan.App.2d 471, 476, 182 P.3d 1,rev. denied 286 Kan. 1183 (2008).
Analysis
Here, the State argues that the district court erred in determining that Garrison's backyard was part of the curtilage. In particular, the State emphasizes that the lack of fencing or other enclosures strongly suggest that the backyard was not curtilage. Talkington, in rebuttal, simply argues that the court carefully analyzed his case and did not err by concluding in his favor.
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fourth Amendment not only protects a person's reasonable expectations of privacy in his or her home, but the Amendment also protects the person's reasonable expectations of privacy in the area immediately surrounding the home— i.e., the curtilage. See United States v. Dunn, 480 U .S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); State v. Tinsley, 16 Kan.App.2d 287, 290–91, 823 P.2d 205 (1991). The curtilage, therefore, is considered part of the home itself for Fourth Amendment purposes. State v. Waldschmidt, 12 Kan.App.2d 284, 289, 740 P.2d 617,rev. denied 245 Kan. 905 (1987).
At common law, the curtilage would be an area that harbored the type of intimate activity associated with the “ ‘sanctity of a man's home and the privacies of life.’ “ Waldschmidt, 12 Kan.App.2d at 289 (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 [1886] ). Conversely, areas known as open fields are not afforded the same protections under the Fourth Amendment because they do not provide the setting for those same intimate activities that the Fourth Amendment is intended to shelter from government interference and surveillance. 12 Kan.App.2d at 289; see also Oliver v. United States, 466 U.S. 170, 179, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).
Although there is no bright-line definition on what constitutes curtilage, the United States Supreme Court employed a four-factor test in Dunn to help resolve the matter. This test continues to be used today by Kansas courts. See Fisher, 283 Kan, at 286. Thus, in determining whether an area constitutes curtilage, courts consider: (1) the proximity of the area claimed to be curtilage to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by. Dunn, 480 U.S. at 301;Fisher, 283 Kan. at 286.
These factors, however, do not produce a finely tuned formula that, when mechanically applied, produce a correct answer. Dunn, 480 U.S. at 301. Rather, these factors are useful analytical tools to the central question of whether an area is so intimately tied to the home itself that it should be placed under the home's umbrella of Fourth Amendment protection. 480 U.S. at 301.
With respect to the instant case, the four Dunn factors are analyzed immediately below.
Proximity of the Area Claimed to Be the Curtilage to the Home
Kansas courts have recognized that there is no fixed distance at which the curtilage ends. See Fisher, 283 Kan. at 288;Mell, 39 Kan.App.2d at 477. But, in the instant case, the methamphetamine was spotted and confiscated within a short distance of Garrison's home. Doudican testified that from about 60 feet away he spotted a bag that was partially obscured by insulation. But Doudican did not recognize that the bag apparently contained illegal drugs—methamphetamine—until he was within 5 to 10 feet of the bag. When Doudican confiscated the bag, it was within 3 to 5 feet of Garrison's house and next to the steps leading to the back door. Hence, the district court expressed its concern about the “the proximity of the contraband to the house itself.” These facts suggest the area was part of the curtilage. See Fisher, 283 Kan. at 288–90 (in a rural setting, trash bag found approximately 50 yards from residence was within curtilage of the house); Mell, 39 Kan.App.2d at 477 (“photo of the scene demonstrated that the area in question was located not far from the back door of the Mells' residence”); Tinsley, 16 Kan.App.2d at 292 (70 feet is a short distance and could be in close proximity to house); Waldschmidt, 12 Kan.App.2d at 290 (“the record indicates the yard was in that area immediately adjacent to the house”).
Whether the Area is Included Within an Enclosure Surrounding the Home
Here, the facts favor the State. There is no doubt that Garrison's house was devoid of the prototypical 6–foot–tall wooden fence that would strongly suggest his backyard was a private area. See Waldschmidt, 12 Kan.App.2d at 290. Moreover, the 1–foot–high rock boundary marker and remnants of a chain-link fence did not obstruct Doudican's view.
In Fisher, our Supreme Court observed that an area might be considered an enclosure when it was surrounded by barbed wire fencing on three sides and a highway on the fourth side and because the area appeared to be mowed and well-maintained. See 283 Kan. at 289.Fisher, however, emphasized that the location of the area in question—a rural environment where people have greater expectations of privacy than in an urban setting—was important to the outcome of the case. See 283 Kan. at 290.
Mell, which extensively discusses Fisher, placed a premium on similar facts. In Mell, this court cited the following facts in determining that marijuana plants found near the defendant's house were not within an enclosure: the plants were not confined within any sort of fencing, the plants were visible from the sidewalk, and the area surrounding the plants was not mowed or well-maintained. 39 Kan.App.2d at 478.
In the recently decided case of State v. King, 293 Kan. 1057, 1062–63, 274 P.3d 599 (2012), our Supreme Court held that a porch area right next to the entrance of the home was not curtilage for Fourth Amendment purposes. The porch was partially screened but easily could be seen through. It was unlocked and allowed access to the front door, and anyone could see or hear persons on the porch. 293 Kan. at 1062; see also State v. Riddle, 246 Kan. 277, 280, 788 P.2d 266 (1990) (no expectation of privacy when arrested on porch); State v. Orr, No. 96,790, 2008 WL 940778, at *4 (Kan.App .2008) (unpublished opinion) (no reasonable expectation of privacy in enclosed porch attached to front entrance).
In the instant case, the district court determined that the enclosure factor did not weigh in either side's favor. We disagree.
Several facts support the State's contention that Garrison's backyard was not surrounded by an enclosure. Garrison's backyard was not surrounded by a tall fence that blocked all visibility, nor was it well-kept or maintained. An alleyway also ran behind the home and was not visibly obstructed by any sort of fencing. Neither party disputed this fact at Talkington's suppression hearing, though appellate review is somewhat limited because the State's sole photograph of the backyard does not show the alleyway. Nonetheless, the lack of clearly enclosed fencing favors the State. See Mell, 39 Kan.App.2d at 478. Moreover, the State's testimony and photographs of the house, confirming that the backyard was messy with household items and debris, suggest that Garrison undertook little effort to make private his affairs outside of his house. See 39 Kan.App.2d at 478.
Nature of the Uses to which the Area is Put
This factor does not tip the scales significantly because there are few, if any, available facts on this issue. Consequently, the district court observed the following:
“There is no testimony for this court to rely upon to determine the nature of the uses to which the area is put. However, the photos of the area show it to be relatively un-kept but otherwise a typical back yard. There are no indications the area was used for outdoor entertaining, gardening or any other particular activity typically engaged in by homeowners.”
Based upon the record, we cannot disagree with the district court on this point. Neither Talkington nor Garrison offered any testimony directly concerning the uses of the backyard. Although Talkington testified that he would work on Garrison's car and moped when he visited Garrison, he did not testify they performed this work in the backyard. The only testimony here is that the backyard was messy and littered with insulation. The district court stated there was no evidence that Garrison used the backyard for fairly typical purposes—entertainment or gardening. Therefore, this factor slightly favors the State.
Steps Taken to Protect Area from Observation by People Passing By
The front of Garrison's house had both a no-trespass sign and a no-solicitation sign that suggest his desire to maintain a sense of privacy in his house and the surrounding area. See Fisher, 283 Kan. at 289–90. These were key facts bolstering the district court's decision. However, the house was not fully enclosed by a tall fence, and the 1–foot–high rock boundary marker and the remnants of a chain-link fence did nothing to obstruct the view of, or prevent entrance to, the backyard. See King, 293 Kan. at 1062. While it is true that Doudican could not see the bag of methamphetamine from a public vantage point, the record suggests that was due to the bag being partially obscured by debris-some insulation-not because of his distance from the object. This factor favors the State.
In total, these four factors add up to the backyard not constituting part of the curtilage. While the bag of methamphetamine was found close to the back door, the State persuasively argues that the lack of enclosed fencing suggests the area was not curtilage as there was only a rock boundary marker and remnants of a chain-link fence which did nothing to obstruct the view of or access to the backyard. Moreover, the nature and uses of the backyard-admittedly there is little evidence on this point-appear to favor the State as the yard was messy and littered with insulation. While Garrison undertook some very limited efforts to assert some privacy in the front area with the placement of no trespassing and no soliciting signage, the total lack of any fencing obstructing the view of or access to the backyard, coupled with the property's location in an urban area, vitiates any reasonable expectation of privacy Garrison may have had in his backyard.
Does a Social Guest in the Curtilage Have Standing to Challenge the Lawfulness of a Search?
Standard of Review
The State and Talkington agree that the standard of review here is the same as reviewing a motion to suppress evidence. The facts are reviewed for substantial competent evidence, and the conclusions of law are reviewed de novo.
The “ ‘defendant cannot object to the seizure of evidence without proper standing to challenge the validity of the search. On the issue of standing, the burden is on the defendant to show an expectation of privacy in the property searched.’ “ State v. Ralston, 45 Kan.App.2d 1024, 1027, 257 P.3d 814 (2011), rev, denied 293 Kan. –––– (January 20, 2012).
Analysis
Here, the State argues that the district court erred in determining that Talkington, as a social guest of Garrison, had the same privacy expectations that he would have enjoyed inside Garrison's home. However, because we have already held that Garrison, as the person who lived at the home, had no reasonable expectation of privacy in his backyard, the question of whether Talkington would enjoy some reasonable expectation of privacy is moot as a social guest cannot assert a greater expectation of privacy than the property owner. See State v. Huff, 278 Kan. 214, Syl. ¶ 6, 92 P.3d 604 (2004) ( “Social guests have standing to assert a reasonable, subjective expectation of privacy that their host has in his or her residence.”).
Was the Marijuana Found on Talkington's Person at the County Jail Otherwise Admissible Against Him?
Standard of Review
Once again, both parties agree on the standard of review: substantial competent evidence on the facts and de novo review on the conclusions of law.
Analysis
In its final argument, the State claims that the district court erred in suppressing the marijuana discovered on Talkington's person at the county jail. Specifically, the State claims that even if Talkington was unlawfully arrested, the search of his person was attenuated from the taint of the unlawful arrest.
Because we have found that the search of the backyard was lawful, thereby making Talkington's arrest lawful, the search of Talkington's person which yielded the marijuana, as part of his being booked into jail, was also lawful. See State v. Copridge, 260 Kan. 19, 23, 918 P.2d 1247 (1996) (defendant taken into custody may have personal effects lawfully seized) (citing State v. Costello, 231 Kan. 337, 342, 644 P.2d 447 [1982] ).
The district court is reversed, and the case is remanded for further proceedings consistent with this opinion.