The Fourth Amendment of the US Constitution - incorporated to the states by the Due Process Clause of the 14th Amendment - protects citizens from unreasonable search and seizure. The touchstone of a search and seizure is reasonability. This means that to conduct a search, the police officer or agent of the state must have a valid search warrant. Where there is no warrant, the search will be unreasonable unless one of the valid warrant exceptions exists.
Evidence seized in violation of the fourth amendment will be suppressed at trial. Further, under the fruit of the poisonous tree doctrine, all evidence gathered as a result of an unlawful search will be suppressed as well unless the government can show that the taint of the unconstitutional activity has been sufficiently attenuated.
A "search" requires government action. Here, Owen is a police officer; thus, this requirement is met.
A search only occurs where the government physically intrudes on the person’s person, property or effects, or when the government intrudes on a person's "reasonable expectation of privacy" (REOP).
Because there is no indication that Officer Owen had a warrant for any of the activity discussed below, his actions are unreasonable if they constitute a "search" and if no valid warrant exception applies.
1. The Dog's Reaction
The issue here is whether the use of the drug-sniffing dog at the front porch was a search.
As discussed above, the fourth amendment is only triggered by state action. Action by a police officer is sufficient. Here, Owen is a police officer. Thus, there is state action.
A search exists where the government interferes with a reasonable expectation of privacy (REOP) or where there is a physical trespass into constitutionally protected space (persons, places or effects).
The Supreme Court recently held that bringing a drug-sniffing dog to the front porch of a home for the purpose of searching for drugs is a "search" under the fourth amendment. Although the front door is typically held open under implied consent doctrine, the use of a drug-sniffing dog exceeds this consent and is therefore a trespass. (Note: this is unlike the case of using a drug-sniffing dog at a traffic stop, which is reasonable under the fourth amendment.)
Here, Owen brought the drug-sniffing dog to the porch for the purpose of checking for drugs. He did not have a warrant to do so. Because Dora did not consent to this, this is a search under the trespass theory of the 4th amendment.
Dora could also argue this is a search under the REOP theory of the 4th amendment. A search occurs where state actors intrude on one's reasonable expectation of privacy. AN REOP exists where the person holds a subjective expectation of privacy and the expectation is objectively reasonable. There is always an REOP in one’s own home. Here, the home belonged to Dora. Thus, Dora could argue that a person has an REOP in her front door in regards to drug-sniffing dogs.
The government would point out that the front door is a place where we have no REOP. This was not a search of the home per se. However, even if this is true, Owen also took the dog into the curtilage, where Dora does have an REOP.
Curtilage is the area immediately around a home and is intimately tied with the activities of the home. The Court has found an REOP to exist there. Areas that are not curtilage are considered "open fields" and there is no REOP in open fields.
The government will argue that the front door is not part of curtilage. However, the dog also walked around the house immediately next to it. This is likely considered curtilage, where the court has found REOP.
However, even in the open fields, the government action is a "search" if they use "sensory enhancing technology" not available to the general public. Here, a drug- sniffing dog may meet this test (a plurality of the Supreme Court feels it does). Thus, even if the dog were kept in open fields, the use of a drug dog would still constitute a search.
Because there was a trespass in a constitutionally protected area without a warrant, and alternatively, because the drug-sniffing dog at the front door violated Dora's REOP, the court will find that a "search" occurred without a warrant and the evidence of the dog's reaction should be suppressed.
2. The Small Box
The legality of this evidence will turn on whether a search occurred and whether there was a warrant exception.
Government Action
There was government action (see rule statement above).
The government will argue that no search occurred because the officer was in the open fields and only used binoculars. Dora will argue that the officer's presence in her back yard was an intrusion in the curtilage.
See rule statements above. Dora will argue that the officer was in the curtilage of her home because the ladder was propped against her home and he peered into the window. Not only was he in the back yard, but he was also peering into the second story window. This is not open fields because we do not expect people to be propped on a ladder in our backyard. This is clearly curtilage instead of open fields.
Dora will also argue that the use of the binoculars constituted a search even if the government was properly in the window. The government will argue this was not a search because this technology is available to the public.
The Court has found that a search occurs where the government, even standing in open fields, uses sensory enhancing technology not available to the general public. This covers using heat-detecting technology, for example. Here, the officer used binoculars, which are available to the public. Because binoculars are readily available, the court will likely find that this, alone, will not transform this action into a search.
However, the court will likely find that a search occurred because of Owen's presence in the curtilage. Because it was a search, the evidence should be suppressed unless a warrant exception applies.
The government will argue that even if a search occurred, a warrant was not required under the plain view exception. Plain View means that a warrant is not required when officers find evidence in "plain view". We do not require the police to close their eyes to incriminating activity (when walking by an open window, for example). For a search to fall within plain view, two elements must be met: (1) the officer must be lawfully in the place where he made the observation, and (2) the incriminating nature of the evidence must be readily apparent.
Here, Dora will argue that the officer could not be in the curtilage of her home. The government may argue first that Owen was merely in the curtilage, and so his presence was lawful (see discussion above). Additionally, the government could argue that the dog's reaction at the door provided probable cause for the officer to take a closer look at the house. The court will likely find that without a warrant, this presence in the window on the second story was not proper. The officer needed a warrant to come this close to the house. Thus, he was not here lawfully.
If the officer is there lawfully, the criminal nature of the evidence must be readily apparent to qualify under plain view. Here, the box could not be read from the window where Owen saw it - he required binoculars to see that the box contained ingredients used for methamphetamine. However, because binoculars are generally available, the court may find that this meets the "apparent" requirement. On the other hand, the fact that it had ingredients alone may not make it incriminating, unless those ingredients themselves are illegal. The court could find there was nothing apparently incriminating about this evidence.
Thus, the plain view doctrine does not apply.
The fruit of the poisonous tree doctrine suppresses evidence seized as a result of an unlawful search, unless the taint of the illegality has been attenuated. Here, even if the plain view exception applies, Dora could argue that it should be suppressed because it was the result of the illegal use of the drug-sniffing dog at the front door. The government will argue that the taint has been attenuated.
Fruit of the poisonous tree can be admitted if the government can show the taint of illegality has been attenuated. This is often shown where sufficient time has gone by between the illegality and the discovery of the evidence, or where there is an independent source for the evidence, or where it would have been inevitably discovered.
Here, very little time went by. Owen went straight from using the dog to going to the backyard. Further, there is no independent source or reason for inevitable discovery. Thus, the evidence cannot be saved by attenuation and should be suppressed as poisonous fruit.
The court will find that the officer's activity constituted a search when he went into the curtilage of the home and that the plain view exception to the warrant requirement does not apply because the officer was not lawfully in the place where he made the observation and because even if he was, the incriminating nature of the evidence was not immediately apparent. Thus, the evidence of the small box should be suppressed.
3. The Overheard Conversation
State Action
See rule statement above. There is state action here.
See rule statement above. Whether or not there was a search will turn on whether Dora had a reasonable expectation of privacy in her conversation with the window open.
Generally, there is no REOP in a conversation held in public. There is also no REOP for conversations held in private with another person. The theory is that when one speaks to another person, you assume the risk that that person may be a police informant. Police may not use electronic methods to eavesdrop on phone calls, but that is because there IS an REOP that persons are not listening in on phone calls. Generally there is no REOP in people overhearing conversations. The court has held that there was not a search where officers stuck their ear to a wall to eavesdrop on conversations overheard in the next apartment over. There would be a search, however, if the officers used sensory enhancing technology, or wiretapping to overhear these conversations. Police may not use electronic methods to eavesdrop on phone calls, however, but that is because there IS an REOP that persons are not listening in on phone calls. Generally there is no REOP in people overhearing conversations.
Here, the government will argue there was no search because the officer merely overheard the defendant making incriminating statements. She had her window open and made them loud enough for passers-by to hear. Even though the statements were made over the phone, the conversations were not overheard via electronic wiretapping. Nor was there sensory enhancing technology used. Thus, the court will find that Dora had no REOP in her conversation that was overheard outside.
Dora will again argue that this was a search because Owen was in the curtilage. However, the court has held that merely being on another's property is not curtilage. The are under the window in the front yard is probably not sufficiently connected to the intimate activities of the home to constitute curtilage (compared to peeping in the back, second-story window, for example). We routinely allow officers to walk around the home.
Here, Owen was merely in the front yard and under an open window. We allow officers to make reasonable inquiries around the home. This will likely not be found to be curtilage. Thus, the court will find that Owen was only in the open fields, not the curtilage.
Warrant Exception?
If the court were to find that a search had occurred, the government would have to argue that a warrant exception applied. No warrant exceptions apply.
Dora will argue this should be suppressed anyway as fruit of the poisonous tree. See rule statement above. The government may argue that even if the earlier search were unconstitutional, this evidence should not be suppressed because it was independently discovered by Owen overhearing in the front lawn. His overhearing had nothing to do with the drug-sniffing dog.
However, if the court finds that the earlier search was unconstitutional, and that Owen would not have been in front of the window but for that illegal search, then the criminality has not been sufficiently attenuated and should be suppressed.
Because there is no reasonable expectation of privacy in one's conversations overheard in public, the court will find that there was no search here and therefore the 4th Amendment was not implicated. Evidence of the conversation should not be suppressed. However, the court may find that it should be suppressed as fruit of the earlier unconstitutional use of the drug-sniffing dog.