U.S. v. Jenkins

• Decision Date: 23 February 2006
• Docket Number: No. 5:05-CR-204-D-1.,5:05-CR-204-D-1.
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES of America v. Zhivargo K. JENKINS, Defendant.

Page 336

426 F.Supp.2d 336

UNITED STATES of America v. Zhivargo K. JENKINS, Defendant.

No. 5:05-CR-204-D-1.

United States District Court, E.D. North Carolina. Western Division.

February 23, 2006.

Joe Exum, Jr., U.S. Attorney's Office, Raleigh, NC, for USA, Plaintiff.

Debra C. Graves, F.P.D., Raleigh, Jeffrey B. Welty, Jeff Welty, Attorney at

Law, Durham, NC, for Zhivargo Kinta Jenkins (1), Defendant.

ORDER

DEVER, District Judge.

Defendant Zhivargo K. Jenkins filed a motion to suppress all evidence seized on January 1, 2005, including the cocaine base and handgun referenced in the indictment. Defendant also filed a motion to dismiss the indictment. On January 12, 2006, the court held an evidentiary hearing on the motion to suppress. The court's findings of fact are set forth within this order. As explained below, the motion to suppress and the motion to dismiss are denied.

I.

Fayetteville police officers Kiger, Fette, and Stein responded to a shots-fired call at Brewer and Emily Streets at approximately 6:20 a.m. on January 1, 2005. The call stated that shots were fired, multiple subjects were in the area, and one suspect, described as a black male wearing a blue Nike coat, was walking on Brewer Street toward Nickey Avenue. Hr'g Tr. 4. Officer Kiger was the first officer on the scene. When Officer Kiger passed 833 Brewer Street, Kiger saw a man later identified as Zhivargo Jenkins peeking out from the corner of the house. When Kiger stopped and called Jenkins over, Jenkins ran across the front of the house and between two cars parked in the yard. Jenkins bent down beside one of the cars, a red Chevrolet Lumina, and made a throwing motion before running again. Jenkins then stopped running and surrendered. Officer Kiger escorted Jenkins toward the patrol car of Officer Fette, who had just arrived. As Officer Kiger and Jenkins walked past the Lumina, Kiger conducted a visual sweep under the Lumina with his flashlight. Seeing nothing under the car, Kiger attempted to question Jenkins, while a third officer, Stein, conducted a more thorough search under the car. Jenkins became nervous during the search. Officer Stein found a stolen Keltec P-11 9mm handgun, hollow-point ammunition, and a plastic bag containing 3,6 grams of crack rocks. Kiger then arrested Jenkins.

On August 3, 2005, a federal grand jury indicted Jenkins for possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924, possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). The indictment also alleged, for purposes of 21 U.S.C. §§ 841(b) and 851, that Jenkins committed the violation in count two after one or more prior convictions for a felony drug offense had become final. See 21 U.S.C. § 802(44).

II.

Jenkins argues that he is either an overnight guest or frequent visitor at 833 Brewer Street; therefore, he has a privacy interest at 833 Brewer Street under the Fourth Amendment. See Minnesota v. Olson, 495 U.S. 91, 96, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (overnight guest); Bonner v. Anderson, 81 F.3d 472, 475 (4th Cir.1996) (frequent visitor). Jenkins further argues that this privacy interest extended to the area of the search because it was within the curtilage of 833 Brewer Street. See Rogers v. Pendleton, 249 F.3d 279, 289 (4th Cir.2001) (recognizing that "the curtilage is entitled to the same level of Fourth Amendment protection as the home itself"). Jenkins alleges that no exigent circumstances or other exceptions to the warrant requirement existed; hence, the fruits of the search must be suppressed.

The government responds that the evidence was found in the area where cars were parked, where no Fourth Amendment expectation of privacy exists. See generally United States v. Dunn, 480 U.S. 294, 300-05, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (analyzing "curtilage"). The government contends that even if the place of the search is within the curtilage, Jenkins is neither an overnight guest nor a frequent visitor with standing to assert a reasonable expectation of privacy in the place searched. Alternatively, the government argues that the search was a lawful protective search incident to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967), or that concern for officer safety created exigent circumstances and an exception to the warrant requirement.

III.

The initial question is "whether the person who claims the protection of the [Fourth] Amendment has a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (citing Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Thus, the court must determine whether Jenkins had a legitimate expectation of privacy in the area under the Lumina parked in the yard outside 833 Brewer Street.

First, the court must consider whether anyone can claim a Fourth Amendment expectation of privacy in the area under the front of the car, and then whether that expectation extends to Jenkins. Regarding the location of the search, the Supreme Court has held that the Fourth Amendment's protection accorded to the people in their "persons, houses, papers, and effects" does not extend to "the open fields." Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 68 L.Ed. 898 (1924). "[O]nly the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home. At common law, the curtilage is the area to which extends the intimate activity associated with the `sanctity of a man's home and the privacies of life.'" Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886)).

The Supreme Court has held that defining the extent of a home's curtilage should be resolved with particular reference to four factors: (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. See Dunn, 480 U.S. at 301, 107 S.Ct. 1134. These factors should not be "mechanically applied," but they are useful analytical tools to the degree they bear upon 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.

A.

The location where Officer Stein found the gun and drugs was approximately seven to eight feet from 833 Brewer Street. Hr'g Tr. 15. Thus, the front end of the Lumina where Jenkins stooped down arguably was within sufficient proximity to the house for purposes of Dunn to weigh in favor of Fourth Amendment protection. There is not, however, "any fixed distance at which curtilage ends." United States v. Breza, 308 F.3d 430, 435 (4th Cir.2002) (quotation omitted). Rather, "the proximity of the area to the home must be considered in light of the other Dunn factors." Id. While close proximity "would permit a conclusion that the [area searched] was within the curtilage, . . . it does not compel such a conclusion." Id. (internal citations omitted); see Bleavins v. Bartels, 422 F.3d 445, 451 (7th Cir.2005); cf. United States v. Redmon, 138 F.3d 1109, 1113 (7th Cir. 1998) (en banc) (finding no objectively reasonable expectation of privacy in trash can sitting beside garage that was attached to the house).

B.

On January 1, 2005, the front of the house at 833 Brewer Street was not fenced. The enclosure factor described in Dunn has been expanded to distinguish between two types of fences. See Breza, 308 F.3d at 436. Fences that encircle the house and outbuildings can support a finding that everything within the fence belongs to the curtilage. See Dunn, 480 U.S. at 301-02, 107 S.Ct. 1134. Interior fences which define off, portions of the yard from the house can negate an inference that the area therein belongs to the curtilage. See id. At 833 Brewer Street, there was no fence, around the: front yard to support a finding that the area searched was within the curtilage. However, the back yard was fenced and contained a large dog. This back yard fence served to exclude. At the hearing, LeMarquis Jenkins (i.e., the homeowner and defendant Jenkins' cousin) testified that police "couldn't get in the back yard. I got a hundred-pound rott-weiler in the backyard." Hr'g Tr. 71. The area searched was outside of the portion of the yard that was fenced. Accordingly, this Dunn factor weighs against Fourth Amendment protection.

C.

As for the nature of the uses to which the area is put, the area searched was used to park cars. Moreover, LeMarquis Jenkins testified that on January 1, 2005, the Lumina did not run. The area where LeMarquis Jenkins parked the Lumina was not an area harboring the intimate activities associated with domestic life and the privacies of the home. See Dunn, 480 U.S. at 301-02, 107 S.Ct. 1134. Thus, this Dunn factor weighs against Fourth Amendment protection.

D.

As for the steps taken by LeMarquis Jenkins to protect the area from observation by passersby, he made no effort to protect the portion of the yard where the Lumina was parked from the observation of passersby. LeMarquis Jenkins testified that on December 31, 2004, he had parked his second vehicle behind and at a slight angle to the Lumina and that "[i]f somebody was in the area [searched] without my consent, I would call the city of Fayetteville, tell them somebody in my yard." Hr'g Tr. 75. However, the fourth Dunn factor is not satisfied when a resident merely asserts a subjective desire to exclude others, but requires that he has taken steps "to protect the area from observation by people passing by." Dunn, 480 U.S. at...