You are here: / / Warrantless Entry Into Defendant’s Backyard Constituted a Search/Defendant H...
,

Warrantless Entry Into Defendant’s Backyard Constituted a Search/Defendant Had a Legitimate Expectation of Privacy in His Backyard

The Second Department determined that the police officer’s warrantless entry into defendant’s backyard constituted a search because the defendant had an expectation of privacy there. The fact that the officer was aware of an apparently false report of a fire in the area did not justify the application of the emergency doctrine (also analyzed in the decision). The seized evidence (marijuana and a firearm) should have been suppressed:

A search occurs, thereby triggering the protection of the Fourth Amendment to the United States Constitution and article I, section 12 of the New York Constitution, when the police invade an area where a person has a legitimate expectation of privacy … . A legitimate expectation of privacy exists where a person has manifested a subjective expectation of privacy that society recognizes as reasonable … . The curtilage of the home–the area immediately surrounding and associated with the home or the area that is related to the intimate activities of the home—is part of the home itself … . The determination of whether an area falls within the home’s curtilage may be made by reference to four factors: “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” … .Consideration of these factors in connection with the evidence in this record, including two photographs of a portion of the subject premises, compels us to conclude that the defendant’s rear yard was within the 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. This physical arrangement made manifest the defendant’s expectation of privacy, and that expectation is one that society recognizes as reasonable… . People v Theodore, 2014 NY Slip Op 01025, 2nd Dept 2-13-14

 

You might also like
PLAINTIFF ENTITLED TO RECOVER THE FULL AMOUNT OF THE INVOICE UNDER AN ACCOUNT STATED THEORY (SECOND DEPT).
COUNTY DID NOT PRESENT SUFFICIENT PROOF THAT THE INJURY OF PLAINTIFF INMATE BY OTHER INMATES WAS NOT FORESEEABLE, THAT THE SAFETY PRECAUTIONS WERE ADEQUATE, OR THAT THE MEDICAL CARE WAS ADEQUATE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).
Sua Sponte Rulings Do Not Become the Law-of-the-Case and Do Not Bind an Appellate Court
EVIDENCE PETITIONER HAD MADE A THREAT TO A PRISON EMPLOYEE WAS INSUFFICIENT, DETERMINATION ANNULLED (SECOND DEPT). ​
FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT). ​
GENETIC MARKER TESTING SHOULD NOT BE ORDERED BEFORE RESOLUTION OF WHETHER THE DOCTRINE OF EQUITABLE ESTOPPEL APPLIES TO PRECLUDE DENIAL OF PATERNITY.
THE ASSAULT ON PLAINTIFF STUDENT BY ANOTHER STUDENT HAPPENED IN SO SHORT A TIME IT COULD NOT HAVE BEEN PREVENTED BY SCHOOL PERSONNEL; THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

Family Court Should Have Granted an Adjournment in Contemplation of Dismissal... Motion to Vacate Pursuant to CPLR 5015 Should Have Been Granted On “Subject...