Curtilage, Search Warrants, And Illegal Drug Seizures In Kansas

What is the “curtilage” of a residence?  Under what circumstances can law enforcement search the outside of a residence without a search warrant?  These are some of the questions considered by the Kansas Supreme Court in its recent decision in State v. Talkington (No. 107,596), decided on March 6, 2015.

The Talkington case involved a drug search in the area outside of a residence.  Three issues were implicated in the case:  (1) whether a residential backyard is part of the “curtilage” under the Fourth Amendment to the United States Constitution; (2) whether a social guest in the residence can challenge the search of host’s residence; and (3) whether drugs found on the defendant’s person after an illegal search of the curtilage should be suppressed as “fruit of the poisonous tree.”  Many search and seizure issues were implicated in this case.  It is an important case and one that deserves careful reading.

What were the facts of the Talkington case?  They were these.  Police searched the backyard of a residence that the defendant, Cyrus Talkington, was visiting and discovered methamphetamine near the back door.  Talkington was then arrested, and marijuana was found on his person. Talkington was charged with possession with intent to distribute methamphetamine, felony possession of drug paraphernalia, possession of more than 1 gram of methamphetamine without an affixed Kansas drug tax stamp, trafficking contraband in a correctional institution, and possession of marijuana.

What exactly is the “curtilage” of a home?  Curtilage is the area immediately surrounding and associated with the home.  It is part of the home itself for purposes of the Fourth Amendment (that is, when it comes to search warrants).  It harbors the intimate activity associated with the sanctity of a person’s home.

How do we determine what is, and what is not, the curtilage?  These four factors are weighed:  (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.

A suppression hearing was done at the district court.  The district court granted his motion to suppress, reasoning the methamphetamine was found in the so-called “curtilage” of the home.  It also ruled that a social guest has standing to assert a host’s Fourth Amendment rights in the curtilage, and that the marijuana found on Talkington was “fruit of the poisonous tree.”

The court reasoned that the area where the methamphetamine was found was within the curtilage because the contraband was found in very close proximity to the house.  The owner of the house had posted signs dissuading entry upon his property, and some sort of barrier had to be crossed to enter the property. The State was not satisfied with this ruling, and appealed.

The Court of Appeals reversed, and found in favor of the State.  The Appellate Court stated that the factors concerning whether the area was protected by an enclosure and whether steps were taken to protect the area from observation, (i.e., the lack of enclosed fencing which did not obstruct the view or access to the backyard), weighed in favor of the State. Thus, the Appellate Court held the backyard was not part of the curtilage, and the police could use the seized drugs as evidence.

The matter was appealed again.  So the Kansas Supreme Court was left to make the final call.  And it did, in an extremely detailed opinion.  The drugs were in fact seized in the curtilage of the home, the Court found.  The drugs were actually found “only a few feet from the back porch steps” which was an area easily within the curtilages described by case law on this issue.  Troubling to the Court was the fact that the Appellate Court tried to reweigh the evidentiary findings that the district court had originally made.  This is something that it is not supposed to do:

Weighing these factual findings, the case law supports the district court’s legal conclusion that this factor favored neither side. The ability to clearly view the backyard and its unkempt nature weighed against it being curtilage, while the fence, rock wall, and trees weighed in favor of a finding of curtilage.  Accordingly, the panel exceeded its standard of review and reweighed the evidence in concluding this factor favored the State rather than being neutral.

Thus the Appeals Court erred in reversing because the district court’s findings of facts were supported by substantial competent evidence, and case law supported its legal conclusion that the area in question was curtilage.

The Supreme Court then moved on to the question of whether a “social guest” has standing to challenge a search of a residence.  This question turned on the guest’s “expectation of privacy” in the home he was a guest at.  In this case, Talkington was a frequent visitor, he had known the owner for 7 or 8 years, and was closely acquainted with the premises:

Talkington and [the house owner] had been friends for 7 to 8 years, they worked on cars and mopeds together, and Talkington visited whenever he was in town, including the previous week. Accordingly, Talkington is entitled to Fourth Amendment protections under this analysis. Likewise applying Tenth Circuit analysis, Talkington establishes a “‘degree of acceptance into the household'” and an “‘ongoing and meaningful connection to [the host’s] home'” by virtue of his 7- to 8-year relationship with [the house owner], their working on vehicles together, and his regularly visiting whenever he was in town.

Finally, the Court found that the drugs later found on Talkington qualified as “fruit of the poisonous tree” because the original search of the curtilage had been illegal.  The “fruit of the poisonous tree doctrine holds that if a search is illegal, any evidence obtained by that search should be suppressed.  That was the situation here.  Thus, the Supreme Court reversed the Appellate Court’s decision, which had been improper.

Read More:  Drug Crimes In Kansas City