United States v. Cooke

• Decision Date: 13 March 2012
• Docket Number: No. 10–20422.,10–20422.
• Citation: 674 F.3d 491
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Steven COOKE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

674 F.3d 491

UNITED STATES of America, Plaintiff–Appellee,

v.Steven COOKE, Defendant–Appellant.

No. 10–20422.

United States Court of Appeals, Fifth Circuit.

March 13, 2012.

Jeffery Alan Babcock (argued), John Richard Berry, Asst. U.S. Attys., Houston, TX, for Plaintiff–Appellee.

Thomas S. Berg (argued), (Court–Appointed), Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, SMITH and HIGGINSON, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Steven Cooke pleaded guilty of being a felon in possession of stolen firearms and body armor in violation of 18 U.S.C. §§ 922(g) and 931(a)(2), respectively. His plea was subject to an appeal of the denial of his motion to suppress evidence, namely, the guns and armor discovered during a search of his house. Cooke alleges that the police unlawfully entered the curtilage while attempting to conduct a “knock and talk” in violation of the Fourth Amendment and that his mother's consent to enter the premises was vitiated by his prior express refusal under Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), even though his mother, but not Cooke, was at the house. We affirm.

I.

Cooke was arrested in Polk County after suspicious activity was reported at a motel. While searching his truck and motel room, officers found two weapons, a digital camera with memory cards, ammunition, and a trace of methamphetamine. The camera had pictures showing Cooke holding firearms other than those found. Two Secret Service agents, suspecting Cooke was counterfeiting money, asked to search his residence in Tomball, Texas (Harris County). He refused.

A week after Cooke's arrest and while he was still in jail, Secret Service, ATF, and local law enforcement agents visited the residence to conduct a “knock and talk.” The residence is unique, located at the corner of two residential streets, with a fence separating the property from neighbors, but no fence along the two street-sides. Aside from the residence, the property has several trees and a large driveway separating the residence from the street by about fifty feet. The exterior is windowless and resembles a barn or warehouse. The front and back each have two, large sliding exterior barn doors, with a security camera above the front doors. Inside the structure is a large area with a dirt floor, save for a paved sidewalk path that leads to a stoop and another set of doors. Inside the second set of interior doors are living quarters where Cooke, his wife, and his mother resided.

When agents approached, they noticed that one of the exterior barn doors had been damaged by a hurricane, leaving an opening through which one could walk directly into the residence. The agents also claim that the second barn door was “wide open” such that they could see through the entire residence, similar to a “carport,” because the rear barn doors were also open. Cooke claims that the intact front barn door was closed. Believing that knocking on the exterior barn doors would be futile, the agents walked through the open barn door and knocked on the interior set of doors. After about a minute of knocking and announcing, Ima Cooke (“Ima”), Cooke's 78–year old mother, came to the door, asked the officers what they wanted, and after a brief conversation explaining that they wanted to enter the residence and ask questions, allowed them into the living quarters.

While speaking with Ima, one agent saw a shotgun shell and gun safe lying in plain view and, based on that information, the officers eventually secured a search warrant. In the safe they found numerous firearms, ammunition, and a bulletproof vest.

II.

In the district court, Cooke moved to suppress the evidence on the ground that the agents unlawfully entered the curtilage of his residence when they conducted the knock and talk, that Ima's consent was not voluntary, and that his refusal of consent trumped Ima's consent. The district court denied the motions, and Cooke pleaded guilty, reserving his right to appeal the suppression motions in his plea agreement. Cooke now renews his contentions that agents unlawfully entered the curtilage and that his refusal of consent trumps his mother's consent. He does not appeal the ruling that Ima's consent was voluntary.

III.

In the context of Fourth Amendment suppression issues, this court reviews questions of law de novo and questions of fact for clear error. United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir.2003). We view evidence presented at the suppression hearing in the light most favorable to the prevailing party (here, the government). Id. Thus, we “should uphold the district court's ruling to deny the suppression motion if there is any reasonable view of the evidence to support it.” United States v. Michelletti, 13 F.3d 838, 841 (5th Cir.1994) (en banc) (internal quotation marks and citations omitted).

Cooke contends that law enforcement unlawfully entered the curtilage of the house when they crossed the barn door threshold without a warrant or consent. Those actions, he argues, led to the discovery of the unlawfully possessed firearms and body armor, which, as fruit of the poisonous tree, should be suppressed. The government asserts that the area between the two sets of doors was not part of the curtilage, so Cooke's rights were not violated when the officers entered to knock on the interior set of doors.

The parties agree that the touchstone case for determining what part of a residence is “curtilage” is United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), which laid out a four-factor test: (1) the proximity of the area claimed to be curtilage to the house, (2) whether the area is included within an enclosure surrounding the house, (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. Id. at 301, 107 S.Ct. 1134. This test does not mechanically answer all curtilage questions, but rather, “these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration—whether the area in question is so intimately tied to the home itself that it should be placed under the home's ‘umbrella’ of Fourth Amendment protection.” Id.

The first Dunn factor weighs in favor of Cooke, as the government concedes, because the area in question was physically attached to, and shared the same roof as, the residence. The second factor also supports Cooke: The area that he claims to be curtilage was surrounded by the walls of the structure, which completely surround the residence. Although no fence completely surrounds the structure (the only fence on the property was on two sides), the walls and barn doors around the area in question practically functioned as a fence: One is required to pass through the barn doors and into the area in question to reach the front door of the living quarters.

The third factor supports the government's position: The area had a dirt floor, had a paved pathway leading to the interior doors, and seems to have been used as storage. Finally, the fourth factor also tends to support the government: Although the barn doors could be closed, completely obstructing the public's view, at least one barn door was broken, and government agents testified that both the front and rear doors were “wide open.” The district court seemed to credit the government's account, describing the area as “akin to a covered porch” into which “any member of the public would have gone to knock at the defendant's front door.”

Given the peculiarities of the residence, it is not surprising that the four Dunn factors do not provide dispositive guidance as to whether the area immediately inside the barn doors is curtilage. But the central aim of Dunn is determining whether the area in question “harbors the intimate activity associated with the sanctity of a man's home and the privacies of life” such that the area is “so intimately tied to the home itself that it should be placed under the home's umbrella of Fourth Amendment protection.” Id. at 300–01, 107 S.Ct. 1134 (internal quotation marks and citations omitted).

Cooke relies on several facts that demonstrate the privacy and intimacy of the area. He notes that a security camera pointed to the driveway, meaning that the officers should have been on alert that the interior of the structure was a private space and that the occupants would be able to see them without the officers' having to enter the barn doors. The agents claim not to have noticed the security camera. Cooke also points to a sign posted on the interior set of doors that should have warned officers that only invitees were allowed on the premises.¹ But, the officers could see that sign only after they had entered through the barn doors, and the sign could be read to apply only to the living quarters and not necessarily to the area in question.

The government and district court point to three facts of their own that show the area was not a private or intimate space. First, the area had a dirt floor and a paved sidewalk that leads to the interior door. Second, the contents of the area included such things as nonoperating washing machines and dryers, ladders, a grill, and other sundry items one would expect to find in a storage area or yard. Finally, and perhaps most importantly, the government contends, and the court agreed, that the doors of the area were open wide enough such that the items stored there were exposed to the elements, the public could see into the area from the street, and any member of the public would reasonably think that they would have to enter and knock on the interior doors when visiting.²

This last fact is especially important in light of United States v. Thomas, 120 F.3d 564 (5th Cir.1997). Because Cooke's residence is so idiosyncratic and this court's...