Tenth Circuit US v. McDowell 11-3337

Decision here.

   Another not-quite-Jardines case.

   An officer in Arizona went to a house to look for a woman who was wanted for assault in another jurisdiction.  As he was walking across the driveway to the front door, he noticed an overpowering marijuana smell from the garage.  He could still smell it from the front door, but it was strongest near the garage.  Instead of knocking, he called for backup.

   Another officer, a sergeant, and then a K9 also smelled marijuana from the garage.  One of the officers stepped off of the path to the front door to look through the window next to the door, but couldn't see anything.  Then everyone backed off and watched the house while a detective wrote up a search warrant.  While they were waiting, a van left the house.  One of the officers watching it stopped the van for not having its headlights on.  The driver gave a fake name, and the van smelled strongly of marijuana.  A search of the van revealed packaging materials, some of which still had bits of marijuana stuck to them.

   Eventually, a search warrant was obtained and executed.  There was a lot of weed in the house, a quarter of a million dollars, and several suspects (including McDowell).  Basically, the suspects were packaging marijuana in axle grease to reduce the smell, shipping it to Kansas City, flying out to Kansas City to collect payment, driving home with the cash, and then buying marijuana to package in axle grease.  Rinse and repeat.

   Charges were filed, McDowell was convicted, and he appealed to the Tenth Circuit.  A couple of the arguments that he made on appeal are just nit-picking about his sentence (which didn't work out for him), but there's only one argument he made which is relevant to this blog.  He argued that the officers violated his Fourth Amendment rights by entering his curtilage to conduct a warrantless search.

   There are four factors which the courts consider in determining whether property falls within the curtilage of the home.  Those are: : (1) the proximity of the area to the house; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the use to which the area is put; and (4) the steps taken by the resident to protect the area from observation.  McDowell admits that most of those factors don't really suggest that his driveway was part of the curtilage, except for #1: the proximity to the house.   He argued that this was so overwhelmingly in his favor that it outweighed the other three factors.  The ultimate question is 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.  

   Having said all that, the court then made it clear that in this case it didn't really matter whether or not the officers intruded on the curtilage; they were there to knock on the front door (the court didn't seem to think it was all that important that the officers changed their minds about knocking once they smelled the weed).  The court also found it irrelevant that one of the officers stepped off of the path in order to look into the window, since this didn't lead to the discovery of any evidence.

   Finding that the officers had a lawful reason to be where they were when they noticed the smell of marijuana, the court declined to consider what the boundaries of the curtilage were in this case.  McDowell's conviction was affirmed.