Sideyard Not Curtilage Because Utilities Employee Had Access
U.S. v. Tolase-Cousins, 2006 WL 2065060 (7/26/06), amended, 2006 WL 650654 (3/16/06) - The 10th issued a bad suppression, but a good sentencing, decision. Bad news first. It was not clear error for the district court to find that officers did not invade the curtilage of the defendants' home when they entered the sideyard, peeked through heart-shaped holes in a fence and observed marijuana plants growing in the backyard. The sideyard was not curtilage because, although it was right next to the house and melons were planted there, it was only enclosed on three sides, there was a sidewalk in the sideyard leading from the driveway to the backyard and a PNM employee would check the meter that was along the sideyard side of the house on a monthly basis. While the PNM employee was invited and the police officers were not, the employee's access and ability to report any illegal activity that he observed, as happened in this case, indicates the defendants did not take steps to protect the area from observation. Of course, social invitees inside the home could report any illegal activities they saw as well. Do such social invitations obliterate a defendant's Fourth Amendment rights to the privacy of the inside of the home?
On the happy side, the 10th held that the district court improperly counted a criminal history point for a South Carolina conviction where the defendant was not represented by counsel and was given a suspended sentenced of a fine or 30 days in jail. The defendant could challenge the conviction at sentencing, although the criminal history point did not enhance his sentence but instead precluded him from obtaining a safety valve reduction below the mandatory minimum. The defendant had a right to counsel under Alabama v. Shelton, 535 U.S. 654 (2002), which held that a defendant had a right to counsel when a suspended jail sentence was imposed. The 10th did not address the government's argument that Shelton could not apply retroactively to the defendant's pre-Shelton conviction because the government waived the argument by not raising it below.
Here is some information about the decision that would not be apparent to anyone just reading the case on westlaw, as opposed to being involved in the case and seeing the accompanying order. The 10th granted the defendant's petition for rehearing in part and, with the permission of the rest of the 10th, overruled prior 10th precedent and held that curtilage determinations must be reviewed de novo, not for clear error. The 10th relied on the S.Ct.'s decision in Ornelas v. U.S., 517 U.S. 690 (1996), (where the Court held reasonable suspicion and probable cause must be reviewed de novo), which was decided after the prior curtilage precedent. This could be helpful precedent for any issue decided against us below that requires an assessment from an objectively reasonable point of view. As Terry reported, the result was the same as it was under clear error: the sideyard was not curtilage.
On the happy side, the 10th held that the district court improperly counted a criminal history point for a South Carolina conviction where the defendant was not represented by counsel and was given a suspended sentenced of a fine or 30 days in jail. The defendant could challenge the conviction at sentencing, although the criminal history point did not enhance his sentence but instead precluded him from obtaining a safety valve reduction below the mandatory minimum. The defendant had a right to counsel under Alabama v. Shelton, 535 U.S. 654 (2002), which held that a defendant had a right to counsel when a suspended jail sentence was imposed. The 10th did not address the government's argument that Shelton could not apply retroactively to the defendant's pre-Shelton conviction because the government waived the argument by not raising it below.
Here is some information about the decision that would not be apparent to anyone just reading the case on westlaw, as opposed to being involved in the case and seeing the accompanying order. The 10th granted the defendant's petition for rehearing in part and, with the permission of the rest of the 10th, overruled prior 10th precedent and held that curtilage determinations must be reviewed de novo, not for clear error. The 10th relied on the S.Ct.'s decision in Ornelas v. U.S., 517 U.S. 690 (1996), (where the Court held reasonable suspicion and probable cause must be reviewed de novo), which was decided after the prior curtilage precedent. This could be helpful precedent for any issue decided against us below that requires an assessment from an objectively reasonable point of view. As Terry reported, the result was the same as it was under clear error: the sideyard was not curtilage.
posted by Anonymous at 1:33 PM
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