I have frequently recommended fourthamendment.com blog as daily reading. The author even includes reference to military appellate cases of interest. So AFCCA has released an (unpublished) opinion in United States v. Leps, and its a dirty business.
AFOSI agents asked the appellant for consent to search his on-base home. The appellant did not consent to a search. AFOSI agents went to his home and examined the outside of the home and the surrounding open space and public access areas. A residential trash bin labeled with the commercial trash disposal company’s logo was located adjacent to the appellant’s carport. AFOSI agents, after conferring with legal counsel, conducted a warrantless search of the trash bin and found paraphernalia associated with illegal drug use. AFOSI agents then secured a search warrant for the home and searched the home, discovering further evidence of drug use.
Slip op. at 2 (emphasis added). As Zach said, of Wicks, ”Getting a warrant isn’t hard, and getting a military search authorization is even easier.” Anyway, not surprisingly, the accused sought to suppress evidence at trial, the military judge said it was OK, and AFCCA twice times says it’s OK. Will CAAF take it? Well, that possibility exists if Mr. Hall is correct and CAAF reads Jardines. First what does Mr. Hall say.
Defendant had no reasonable expectation of privacy in a trash container next to his carport of his base housing. “When the AFOSI agents arrived at the appellant’s home, the trash bin was upright on the grass area immediately adjacent to the front right corner of the carport.” Applying Dunn, this was not curtilage. United States v. Leps, 2014 CCA LEXIS 91 (A.F. Ct. Crim.App. February 19, 2014). [This is completely wrong, and the court doesn’t even cite Jardines, SCOTUS's real residential curtilage case. This clearly was curtilage because the trash wasn’t yet at the street. What a disappointment this court turns out to be as a guardian of the Constitution.]
Note to audience and trial judge, the accused, SrA Leps was tried in January 2013, and Jardines was decided in March. We lightly referenced Jardines on 8 January 2012 here. I think it fair to believe Mr. Hall is talking about Florida v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495, 2013 U.S. LEXIS 2542 (2013). Jardines is a drug dog on the porch sniffing at the front door case – bad boy, bad doggie. Consistent with Dunn, and Sotomayor argues Kyllo, the court finds error.
“This [Fourth Amendment] right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window. 133 S.Ct. at 1414 (emphasis added).
The court then says that the porch is a “classic exemplar” of what is protected. I think Mr. Hall’s point, and that of Jardines, is that Leps’s trashcan was still within the curtilage based on the facts. This seems buttressed in light of a couple of AWOLs.
1. The Leps court calls upon United States v. Dunn, 480 U.S. 294 (1987) for factors to determine “curtilage.” Slip op. at 10. The Supreme Court does not cite to Dunn in Jardines.
2. Another case relied on in Leps, California v. Greenwood, 486 U.S. 35 (1988), would seem to be distinguishable. The court found the trashbag in Greenwood “was left for collection outside the curtilage of a home.” 486 U.S. at 39-44 (emphasis added). Jardines does not cite Greenwood either.
I will leave you to determine the full extent of the trash talk. I will also leave you with these other points.
I think Mr. Hall meant to say curb. But street probably works just as well.
The court in Jardines said, “We therefore regard the area “immediately surrounding and associated with the home” –what our cases call the curtilage–as “part of the home itself for Fourth Amendment purposes.” 133 S.Ct. at 1414.
And, “While the boundaries of the curtilage are generally “clearly marked,” the “conception defining the curtilage” is at any rate familiar enough that it is “easily understood from our daily experience.” 133 S.Ct. at 1415.
I am loath to do a Zach, but I will make a cautious prediction that CAAF will do one of two things – a summary remand for consideration in light of Jardines, or grant and decide. CAAF has not issued a relevant opinion since Jardines was decided. I note CAAF approves of Greenwood. See United States v. Springer, 58 M.J. 164, 169, n.2 (C.A.A.F. 2003); United States v. Richter, 58 M.J. 213 (C.A.A.F. 1999)., each referencing the “outside the curtilage” language.