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Brooklyn court clarifies definition of ‘home,’ throws out drug and gun conviction

February 26, 2014 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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A Brooklyn appellate court dismissed the drug and weapons charges of a Queens defendant after it was discovered that the search of the defendant’s rear driveway violated a protected expectation of privacy.

In September 2011, police detective Gregory Anderson responded to reports of a fire on Sutphin Boulevard in Queens. Finding neither a fire or a residence at the location, Anderson decided to check nearby buildings in the event that the report listed an inaccurate address.

While walking through the neighborhood, Anderson stumbled upon the rear yard of Rashid Theodore. At the time, Theodore was sitting in a parked car in the back driveway, smoking marijuana. Despite not smelling or seeing a fire, Anderson approached Theodore’s car and noticed him smoking what appeared to be a cigarette.

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Anderson entered Theodore’s rear yard and asked Theodore to exit the vehicle. As Theodore departed from the car, Anderson noticed a firearm on a car seat, marijuana and drug paraphernalia. Theodore was arrested and charged with weapon and drug possession. He pleaded guilty to the charges and was sentenced in August 2013.

Prior to his guilty plea, Theodore moved to have the arrest and all evidence discovered during Anderson’s search suppressed on the grounds that Anderson did not have the authority to search his home without a warrant or exceptional circumstances.

Generally, law enforcement officers are not permitted to search a person’s home without a warrant, since the United States Constitution prevents the search of areas where one has an expectation of privacy. The home’s curtilage — the property immediately surrounding a home — is often considered a protected area when it is within an enclosure surrounding the home, the uses of the outside property are of a private nature, and the resident of the property has taken steps to protect the outside area from prying eyes.

The lower court judge denied Theodore’s motion to suppress, believing that Detective Anderson was acting within permissible authority when he approached Theodore’s parked vehicle. A panel of four Appellate Division, 2nd Department, justices disagreed.

Looking objectively at the facts in Theodore’s case, the justices determined that the rear yard where Theodore was parked did satisfy the requirements for protected curtilage of the home. “The rear yard was in close proximity to the home, shielded from view by those on the street, and within the natural and artificial barriers enclosing the home,” the unsigned opinion of the court noted.

Given how Theodore’s rear yard was set up and enclosed, Theodore had an expectation of privacy despite the illegal activities he was engaging in while sitting in a parked car in his back driveway, thus making the warrantless search of Theodore’s car illegal, in the absence of permitted exceptions.

Queens prosecutors also failed to demonstrate that Anderson’s warrantless search fell under any accepted exceptions. Courts have determined warrantless searches legal where the police have reason to believe that an emergency is progress and assistance is needed, and there is some connection between the emergency and the area being searched.

Prosecutors argued that Anderson was responding to an emergency call of a fire on Sutphin Boulevard near Theodore’s residence. Not finding a fire at the dispatched location, it was reasonable, the prosecution’s argument continued, that Anderson would conduct a search of nearby residences to ensure that there was no fire.

Anderson’s search may have been found legal if it had in fact ended with a cursory search for indications of a fire such as flames or the smell of smoke.

The Appellate Division justice found, however, that Anderson continued searching through Theodore’s yard despite not finding evidence of a fire.  

The prosecution went on to argue that Theodore was illegally smoking marijuana in plain view of Anderson thus validating Theodore’s arrest. “[A]n essential predicate of the plain view doctrine is that the officer had the right to be in a position to have the view of the incriminating evidence,” the court noted.

Although Theodore was illegally smoking a marijuana cigarette, Anderson would not have been able to view this illegal activity without unlawfully entering Theodore’s protected home curtilage, the court ruled.

“Since Detective Anderson did not have a lawful vantage point when he saw the defendant holding a ‘blunt,’ the People may not rely on the plain view doctrine to justify the seizure of the gun … [and] marijuana,” held the court.

The higher court ultimately found the search and all evidence recovered inadmissible against Theodore. “Since, without that evidence, the [prosecution] would be unable to adduce legally sufficient evidence to prove [Theodore]’s guilt of the crimes charged, the indictment [against him] should have been dismissed,” the court ordered.

Justices Mark Dillon, Ruth Balkin, Cheryl Chambers and Jeffrey Cohen sat on the Appellate Division, 2nd Department panel. John A. Scarpa, Jr., of Kew Gardens, represented Theodore in this matter, and Assistant Queens County Assistant District Attorneys John M. Castellano, Johnnette Traill, and Deborah E. Wassel argued for the prosecution.


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