Wednesday, April 18, 2007

Curtilage and Knock & Talk

The KSC affirmed in State v. Fisher, No. 89,300 (Kan. March 16, 2007), but not before making some pretty good Fourth Amendment law. The issue had to do with whether a trash bag was within the curtilage of a rural farm house and whether officers could seize the trash bag while walking up and around the house for a knock-and-talk. After a detailed factual analysis, the KSC found that the bag was located within the curtilage:
Based upon these facts, particularly this rural environment, we independently conclude the trash bag was found within the curtilage. We hold that in rural Kansas, Fisher's area "'harbors the intimate activity associated with the "sanctity of a person's home and the privacies of life,"'" [United States v. Dunn, 480 U.S. 294, 300 (1987)].

The KSC split on the issue of whether the officers could conduct a knock-and-talk to get into position to seize the bag under the plain view doctrine. The majority held that they could not:
We specifically disapprove of any State attempt to "piggyback," i.e., to observe an object in open view from off the premises, to use knock and–in these cases, unsuccessful–talk for justified entry onto the premises, and then assert plain view while on the premises as a legal basis to seize the identical object that had been observed earlier. Such piggybacking under these facts would smear the careful distinctions drawn by the Horton [v. California, 496 U.S. 128 (1990)] Court between the right to merely observe an object (here, from off the premises) and the right to seize that object (on the premises). From a practical standpoint, this piggyback practice would grant law enforcement the right to seize virtually any object initially observed from a distance and subsequently located within plain view of a residential doorway by an officer purposely looking for that identical object.

Three justices held that the search of the house was still lawful because after information about the contents of the bag were excised from the affidavit, probable cause still existed. Three justices held that the seizure of the bag during the knock-and-talk was not illegal. Justice Allegrucci held that the seizure of the bag was illegal and would have suppressed all of the evidence.

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