United States v. Perea–Rey

• Decision Date: 31 May 2012
• Docket Number: No. 10–50632.,10–50632.
• Citation: 12 Cal. Daily Op. Serv. 5915,680 F.3d 1179,2012 Daily Journal D.A.R. 7211
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Heriberto PEREA–REY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

680 F.3d 1179

12 Cal. Daily Op. Serv. 5915

2012 Daily Journal D.A.R. 7211

UNITED STATES of America, Plaintiff–Appellee,

v.Heriberto PEREA–REY, Defendant–Appellant.

No. 10–50632.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Oct. 13, 2011.

Filed May 31, 2012.

Gregory T. Murphy, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter and Christopher P. Tenorio, Assistant United States Attorneys, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. 3:10–cr–01707–LAB–1.

Before: ALFRED T. GOODWIN and KIM McLANE WARDLAW, Circuit Judges, and WILLIAM K. SESSIONS III, District Judge.^*

OPINION

WARDLAW, Circuit Judge:

Border Patrol agents watched a man climb over the Mexico–United States border fence and followed him as he took a taxi to Heriberto Perea–Rey's home. An agent watched the suspected undocumented alien walk through the gated entrance to the home and knock on the front door. The agent followed him through the front yard, around the side of the house and into the carport. He found the suspect there, standing with Perea–Rey in front of a side door entrance to the home, and detained both men until other agents arrived. Perea–Rey refused to allow the agents to enter his house. Forgetting for a moment that the Fourth Amendment ordinarily requires that the government obtain a warrant before it conducts a search or seizure, particularly of persons in their homes, the agents, pointing their guns at the home, ordered everyone outside. The individuals who emerged were later found to be undocumented aliens.

Indicted for harboring the aliens in violation of 8 U.S.C. § 1324, Perea–Rey moved to suppress evidence of the aliens as the fruit of a warrantless search and seizure. Though the district court found that the agents entered the curtilage of Perea–Rey's home and that there were no exigent circumstances that might justify the failure to obtain a warrant, the court denied the motion. Perea–Rey entered a conditional guilty plea and filed this appeal. Because the agents physically occupied the curtilage of Perea–Rey's home without obtaining a warrant, and no exceptions to the warrant requirement otherwise justified the search or seizure, we reverse Perea–Rey's conviction and remand.

I. BACKGROUND

On April 19, 2010, border patrol agents observed an individual—later identified as Pedro Garcia—enter the United States by climbing over the United States–Mexico border fence. Eventually, Garcia traveled by taxi to Perea–Rey's home at 257 Hernandez Street, Calexico, California. Border Patrol Agent Angel Trujillo followed the taxi to Perea–Rey's residence. Hernandez Street runs east-west through a residential area more than a mile, as the crow flies, from the international border.¹

Agent Trujillo approached Perea–Rey's home from the west on Hernandez Street. Parking his car to the west of the house, Trujillo saw Garcia leave the taxi, enter the front yard through one of two gates (the larger gate in front of the carport was closed), and knock on the front door. Perea–Rey opened the door, spoke to Garcia, and gestured towards the carport on the east side of the house.² From his vantage point to the west of the house, Agent Trujillo could not see into the carport. Garcia walked along the front of the house, around the corner and into the carport. Agent Trujillo followed him past the front door and into the carport, where he confronted Perea–Rey and Garcia, identifying himself as a border patrol agent. In response to Perea–Rey's question as to what was “going on,” Agent Trujillo instructed him and Garcia to stay where they were until other agents arrived. Agent Trujillo held Perea–Rey and Garcia for roughly five minutes in the carport, without explaining his presence or asking whether Perea–Rey was willing to speak with him. When the agents arrived, they arrested and removed Garcia from the property and surrounded the home.

Perea–Rey did not consent to the agents' request to enter the house. From within the carport, Agent Trujillo knocked on the side door, identified himself as a border patrol agent and commanded everyone to come out of the house. Four men emerged. The agents pointed guns at the home and again ordered everyone out; two more men emerged. Questioning the men, the agents determined that they were undocumented aliens, and that there was another person in the home. The agents searched the home and discovered a seventh alien.

On May 5, 2010, Perea–Rey was indicted on three counts of harboring undocumented aliens under 8 U.S.C. § 1324. He moved to suppress the evidence of the aliens gathered at his residence. After two evidentiary hearings, the district court found that the carport was within the curtilage of Perea–Rey's home, but that there was no reasonable expectation of privacy because it could be observed from the sidewalk. It therefore held that Agent Trujillo did not violate Perea–Rey's Fourth Amendment rights by entering the carport, knocking on the side door and ordering people in the house to come out. The court denied the motion to suppress as to the first four aliens who emerged in response to Agent Trujillo's command. The court granted the motion to suppress evidence and observations from within the home, including the last alien to emerge, concluding that this evidence resulted from an unconstitutional warrantless entry of Perea–Rey's home. Perea–Rey entered a conditional guilty plea to one count of the indictment. This appeal ensued. ³

II. DISCUSSION

“We review de novo the denial of a motion to suppress. Whether the exclusionary rule applies to a given case is reviewed de novo, while the underlying factual findings are reviewed for clear error.” United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir.2004) (en banc) (citations omitted). Evidence that is derived directly or indirectly from an illegal search cannot “constitute proof against the victim of the search.” Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Where the government “physically occupie[s] private property for the purpose of obtaining information,” that is a “ ‘search’ within the meaning of the Fourth Amendment.” United States v. Jones, –––U.S. ––––, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012). “[S]earches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Because the curtilage is part of the home, searches and seizures in the curtilage without a warrant are also presumptively unreasonable. See Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).⁴ “[T]he determination that a particular search did (or did not) occur within the curtilage must be reviewed de novo on appeal.” United States v. Johnson, 256 F.3d 895, 913 (9th Cir.2001) (en banc).

A. Curtilage

The district court found that the carport, which the border patrol agents occupied, was part of the curtilage of Perea–Rey's home, and we agree. We examine four non-exhaustive factors to determine whether an area is part of a home's curtilage: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” United States v. Dunn, 480 U.S. 294, 307, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); see United States v. Struckman, 603 F.3d 731, 739 (9th Cir.2010) (applying Dunn factors). “These factors do not yield a definite answer; rather they guide [us] in determining whether the area is so intimately connected to the home that it should fall under the umbrella of the Fourth Amendment's protections.” Johnson, 256 F.3d at 911. Our analysis of the Dunn factors is aided by the photographs of Perea–Rey's home introduced at the suppression hearing. Agent Trujillo testified that these photographs accurately show Perea–Rey's home and that the lighting at the time of the April 19 arrests was “roughly about the same.”

The carport more than satisfies the proximity factor. It is directly adjacent to and shares a common facade and wall with the one-story stucco home. Inside the carport there is a side door that opens directly into the home. Agent Trujillo testified that this door is set back ten to fifteen feet into the carport, but it appears from photographs to be closer to the front of the carport. The area near the side door, where Trujillo confronted Perea–Rey and Garcia, is immediately adjacent to the interior of the home.

The carport also meets the enclosure factor; not only is it enclosed by walls and a roof, but it is further enclosed by a wrought iron fence that surrounds the property, including a small grass front yard. The fence also encloses the driveway entrance to the carport. The fence is five to ten feet from the front of the house and allows a relatively unobstructed view of the front of the home. There are two gates in the fence: a small gate in front of the main door to the house, and a larger gate across the front of the driveway. On the day of Perea–Rey's arrest, the driveway gate was closed, blocking passersby from entering the driveway and carport.

Perea–Rey also used the carport to store valuable personal belongings. The carport enclosed, among other things, Perea–Rey's 1989 GMC pickup truck, his valuable classic 1970 GMC pickup truck, a rolling chest of automotive tools, a hand truck and building supplies. The back end of the carport opens into the private, fenced-in rear yard of the home; thus it was also protected from observation by passers-by.

Perea–Rey went to some measure to protect the carport from observation from beyond the fence line. A solid roof and two walls...