United States v. Warren J. Taylor

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
_____________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 28, 2006
No. 05-10648
THOMAS K. KAHN
_____________ CLERK

D.C. Docket No. 04-00201-CR-J-25-MCR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WARREN J. TAYLOR,

Defendant-Appellant.

____________

Appeal from the United States District Court
for the Middle District of Florida
____________

(July 28, 2006)

Before ANDERSON, DUBINA and HILL, Circuit Judges.

HILL, Circuit Judge:
 Warren J. Taylor was convicted of being a felon in possession of a firearm,

in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Prior to trial, the district court

denied his motion to suppress the gun and his statements upon arrest to the law

enforcement officers. Taylor appeals his conviction, asserting as error the denial

of his motion to suppress.

I.

Shortly after midnight on June 14, 2004, the St. Johns County Sheriff

received a 911 call, but the caller hung up without saying anything. The

emergency dispatcher twice returned the call, but the person who answered at that

number immediately hung up again. Deputy Sheriff James Robinson, drove to the

address corresponding to the phone number, 2130 Ryan Road, to “check on the

welfare” of the occupants of that address. Deputy Robinson was in uniform and

driving a marked patrol car. Sergeant Theresa Meares arrived a few minutes later

as back-up for Deputy Robinson.

The Ryan Road address was located in a rural part of the county on about

five acres and it included a house, barn, and pond. The property was fenced at the

perimeter with an open field/livestock fence.

Deputy Robinson drove onto the property from the public road, passing

through an unlocked gate. The house sat approximately 150 yards from the gate.

2
Deputy Robinson parked in front of the house, walked up to the front door, and

knocked several times. Taylor walked out from behind the barn, a substantial

distance from the house, and approached the house. Taylor was preceded by his

dog, which ran up to Deputy Robinson and Sergeant Meares (who had by now

arrived on the scene). Taylor yelled to the officers, “Don’t shoot my dog, he’s all

right, he won’t hurt you.”

Deputy Robinson explained to Taylor that he was there because of a 911

hang-up. Taylor said he had made the call because he and his girlfriend had gotten

into an argument. According to Taylor, the girlfriend had become violent, so he

had call 911 “to get her off of him,” at which point she left. The deputy attempted

to ascertain the location of the girlfriend but, as Taylor concedes in his brief, he

responded with only a vague answer that “she could be a couple of different

places.”

Deputy Robinson then asked Taylor where he was when the deputy arrived.

Taylor said there was a room in the barn where he liked to “chill out.” The deputy

noted that no one was in the house and asked why Taylor had gone to the barn.

Taylor responded that it was his “hangout spot.”

Officer Robinson testified that he was concerned that Taylor’s girlfriend

might have been hurt in the argument, so he asked for permission to “make sure

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nobody is back there and everything is okay.” Taylor consented, saying “Sure, go

ahead.”

The officer testified that Taylor was “nonchalant, very cooperative, had no

problem with it.” Taylor did not testify at the suppression hearing.

While Sergeant Meares stayed with Taylor, Deputy Robinson walked

around the corner of the barn and saw a camper trailer nearby. It was drizzling

and fresh footprints appeared in the sand that led from the camper to the pond.

Deputy Robinson followed the footprints and saw a green military-style pack in

the grass line of the pond water, within reach of the edge of the pond. The deputy

retrieved it. A knife was visible from outside the pack. Deputy Robinson opened

the pack and discovered shotgun shells inside one of the pouches.

Given the absence of the girlfriend and the fact that the pack, containing a

knife and shotgun shells, had been thrown into the pond, Deputy Robinson

returned to Taylor and explained that he was instituting a criminal investigation.

Although he did not arrest Taylor at this time, he informed him of his Miranda

rights. Taylor was placed in the back of a patrol car, but he was not handcuffed.

During this time, the deputies requested by radio that other officers attempt to

locate Taylor’s girlfriend.

Deputy Robinson went back to the pond to search more fully, and

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discovered a shotgun lying in about a foot of water. He returned to Taylor and

asked him about the shotgun and the pack. Taylor stated that he was a convicted

felon and that he did not want to get caught with a prohibited gun. Taylor

admitted that he had thrown the gun and pack into the pond when he saw the

police cars drive onto the property. He was arrested and subsequently charged

with being a felon in possession of a gun, tried and convicted by a jury. We

review the district court’s denial of his motion to suppress de novo. United States

v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002).

II.

Taylor contends that the gun and his statements to the officers upon its

discovery must be suppressed because the officers’ warrantless entry by

“affirmatively opening a closed gate at the property here” violated the Fourth

Amendment. We do not agree.

The Fourth Amendment, which prohibits unreasonable searches and

seizures by the government, is not implicated by entry upon private land to knock

on a citizen’s door for legitimate police purposes unconnected with a search of the

premises. Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971). United States

v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991) (no warrant necessary for officers

to approach house to question the occupants). “Absent express orders from the

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person in possession,” an officer may “walk up the steps and knock on the front

door of any man’s ‘castle,’ with the honest intent of asking questions of the

occupant thereof.” Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964).

Thus, “[o]fficers are allowed to knock on a residence’s door or otherwise approach

the residence seeking to speak to the inhabitants just an any private citizen may.”

Estate of Smith v. Marasco, 318 F.3d 497, 519 (3d Cir. 2003).

The initial entry onto Taylor’s property in this case was for just such a

“knock and talk.” The 911 hangup call received by the police was routinely

followed up with a call-back to ensure that no action was necessary. When the

person answering this call also abruptly hung up, another call was made. This call

too was answered, but followed by an immediate hang up. In view of the

possibility that someone was in serious trouble and being prevented from

communicating with the police, officers were dispatched to the address. This

dispatch was legitimate police business. We would consider the police derelict in

their duty if they did anything less.

Upon arriving at the address, the officer entered the property, proceeded

down the driveway that provided access to the house, went to the front door and

knocked on it in order to investigate the suspicious and troubling 911 calls. This

conduct is not prohibited by the Fourth Amendment. Coolidge, 403 U.S. 443;

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Tobin, 923 F.2d at 1511; Marasco, 318 F.3d at 519.

Furthermore, to the extent that the officers moved away from the front door

and toward Taylor when they heard him and his dog approaching (Taylor testified

he shouted out, “Don’t shoot my dog!”), this small departure from the front door

also does not trigger the protections of the Fourth Amendment. The officers heard

Taylor shout to them, and simply moved toward him to ask him their questions

about the 911 call. Such a minor departure from the front door under these

circumstances does not remove the initial entry from the “knock and talk”

exception to the warrant requirement. United States v. Hammett, 236 F.3d 1054,

1060 (9th Cir. 2001) (“[A police] officer may , in good faith, move away from the

front door when seeking to contact the occupants of a residence.”); United States

v. Raines, 243 F.3d 419, 421 (8th Cir. 2001) (recognizing “that law enforcement

officers must sometimes move away from the front door when attempting to

contact the occupants of a residence”); United States v. Daoust, 916 F.2d 757, 758

(1st Cir. 1990) (officer may move away from the front door as part of a legitimate

attempt to interview a person); United States v. Anderson, 552 F.2d 1296, 1300

(8th Cir. 1977) (officer’s movement to rear of house after receiving no answer at

front door was lawful). Thus, contrary to Taylor’s assertion that the government

must demonstrate probable cause and exigent circumstances” in order to justify the

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“initial intrusion onto the property,” the government need not do either. The

officers’ initial entry and encounter with Taylor were both covered by the “knock

and talk” exception to the Fourth Amendment’s requirement for a warrant.1

Somewhat more problematic is the subsequent search of the pond by Deputy

Robinson. Despite his contention to the contrary, there is little doubt that Taylor

freely consented to a search of the area around the barn. United States v. Zapata,

180 F.3d 1237, 1242 (11th Cir. 1999) (failure to inform of right to refuse consent to

search does not invalidate otherwise valid consent); United States v. Purcell, 236

F.3d 1274, 1281 (11th Cir. 2001) (voluntariness of consent measured by totality of

circumstances). There is, however, a genuine issue concerning the extent of the

1
Furthermore, even if the Fourth Amendment were applicable to the officers’ entry onto
Taylor’s property, the exigent circumstances exception to the requirement for a warrant would
justify their entry onto his property. In United States v. Holloway, 290 F.3d 133, 1337 (11th Cir.
2002), we held that “emergency situations involving endangerment to life fall squarely within the
exigent circumstances exception.” In Holloway, police received a 911 call reporting gun shots
and arguing coming from a home. The officers arrived within minutes and observed a man and a
woman on the front porch. After ordering them to vacate the porch, the officers searched it and
found a firearm. The man, a felon, was charged with possession of the firearm. Id.
In upholding the conviction, we said that:
Under the circumstances known to them at that time, the officers
reasonably believed an emergency situation justified a warrantless
search of Appellant’s home for victims of gunfire. The possibility
of a gunshot victim lying prostrate in the dwelling created an
exigency necessitating immediate search. Id.
In the instant case, the officers did not even enter the home. The officers merely entered
the property and knocked on the front door. They were responding to a 911 hang up call and two
more hang-ups, trying to determine if there was an emergency that prevented the caller from
answering the call-backs. Such an entry falls squarely within the exigent circumstances
exception.

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search consented to.

Deputy Robinson testified that because he remained concerned about

Taylor’s “missing” girlfriend, and since he had observed Taylor coming from

behind the barn, he asked Taylor if he could “look around to see why he was

coming from around the barn.” Taylor responded “Sure, go ahead.” When

Robinson went behind the barn, however, he observed fresh footprints leading

from a camper trailer down to the pond. He testified he followed the footprints to

the pond and subsequently discovered the backpack containing the knife and

shotgun shells.

Although it is clear that Taylor consented to a search of the area behind the

barn, it is equally clear that he did not explicitly agree to a search of the pond.

This raises the issue of the scope of the consent he gave. As we said in Strickland,

A consensual search is confined to the terms of its authorization. The
scope of the actual consent restricts the permissible boundaries of a
search in the same manner as the specifications in a warrant. When
an individual gives a general statement of consent without express
limitations, the scope of a permissible search is not limitless. Rather
it is constrained by the bounds of reasonableness: what a police
officer could reasonably interpret the consent to encompass.

United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990). Therefore, the

warrantless search of the pond was lawful only if Taylor’s consent to the search of

the “barn” area extended to the pond or if this area was not protected by the Fourth

9
Amendment in the first place. We shall examine the latter of these two

possibilities first, since if Taylor had no protected privacy interest in the pond

area, no consent was required to search it.

The private property immediately adjacent to a home is entitled to the same

protection against unreasonable search and seizure as the home itself. Oliver v.

United States, 466 U.S. 170, 180 (1984). At common law, the curtilage is the area

to which extends the intimate activity associated with the “sanctity of a man’s

home and the privacies of life,’ . . . and therefore has been considered part of the

home itself for Fourth Amendment purposes.” Id. (internal citation omitted).

The Court reaffirmed this position in United States v. Dunn, 480 U.S. 294,

300 (1987), stating that “[in Oliver] we recognized that the Fourth Amendment

protects the curtilage of a house.” But the Court recognized that “the extent of the

curtilage is determined by factors that bear upon whether an individual reasonably

may expect that the area in question should be treated as the home itself.” Id.

Thus, although the private property immediately adjacent to a home is treated as

the home itself, this area is not unlimited. It is limited to that property that the

individual should reasonably expect to be treated as the home itself. Id.

In this case, then, the question is whether Taylor should reasonably have

expected the portion of the property around the pond to be treated as his home. If

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so, Deputy Robinson needed Taylor’s consent to have lawfully searched the pond.2

The Court in Dunn identified four factors that assist us in resolving this

question: (1) the proximity of the area claimed to be curtilage to the home; (2) the

nature of the uses to which the area is put; (3) whether the area is included within

an enclosure surrounding the home; and, (4) the steps the resident takes to protect

the area from observation. 480 U.S. at 301; accord United States v. Hall, 47 F.3d

1091, 1096 (11th Cir. 1995). We consider whether the pond was curtilage in the

context of each of these factors.

(1) The pond’s proximity to the house

An area that is substantially removed from and separated by other structures

from the house is not within its curtilage. In Dunn, the Supreme Court held that a

barn, used for storing chemicals, located some sixty yards from the house was not

located within its curtilage for Fourth Amendment purposes. 480 U.S. at 302.

Characterizing such a distance as “substantial,” the Court held that the owner had

no reasonable expectation of privacy in an area so far removed from the home. Id.

Similarly, in Hatch, we held that marijuana growing thirty yards and farther from

the house and separated from the house by a barn, tack room, taxidermy building

2
The district court found that Taylor’s consent extended to the pond despite the fact that
Deputy Robinson testified that he “got consent to check the area around the barn,” and “didn’t
get consent to search all over the property.” We express no view on this conclusion.

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and some stock pens was sufficiently removed from the house so as to be beyond

its curtilage. United States v. Hatch, 931 F.2d 1478, 1481 (11th Cir. 1991). In

order to lie within the curtilage, we have held, an area must be an integral part of

that group of structures making up the “immediate domestic establishment of the

home.” United States v. Berrong, 712 F.2d 1370, 1374 (11th Cir. 1983) (“Since the

marijuana field was located beyond all of the buildings on the Berrongs’ property,

it was beyond the curtilage of the home”).

In this case, Deputy Robinson testified without contradiction that the barn

was approximately 130 feet away from the house, and that the shore of the pond

where he initially discovered the pack containing the knife and shells is about 100

feet farther away, through a grassy area and down an embankment. The pond was

separated from the house by the barn and another structure. These facts are

undisputed and supported by the aerial photographs admitted into evidence at trial.

They lead us to the conclusion that the pond, some sixty yards away from and

separated by other structures from the house, was not within the curtilage of

Taylor’s home. Dunn, 480 U.S. at 302-03; Hatch, 931 F.2d at 1480; Berrong, 712

F.2d at 1374.

2) The uses to which the pond is put

In Dunn, the Court found it “especially significant” that the barn, used for

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storing chemicals, was not being used “for intimate activities of the home.” 480

U.S. at 302-03. Similarly, in Hatch, we held that the growing of marijuana in an

open field was significantly not an intimate activity of the home. 931 F.2d at

1482.

In this case, the pond was certainly not being used in connection with any

“intimate activity of the home.” Taylor could have had no reasonable expectation

that the pond was a part of his home that was protected by the Fourth Amendment.

Thus, the pond’s use did not put it within the curtilage.

3) Whether the pond was within an enclosure containing the house

An area within an enclosure surrounding the home may be within its

curtilage. In Dunn, for example the Court found it significant the house was

surrounded by a fence that clearly established the area around the house as a

distinct area within the property. 480 U.S. at 302-03. Similarly, in Hatch, we held

that the presence of a partial fence around the house defined its curtilage. 931

F.2d at 1481.

In this case, there is no fencing around the house and pond that might bring

the pond within the curtilage of the house. There is only the outer perimeter fence

around the whole five acres. Thus, there is no enclosure containing both the house

and the pond that would bring the pond within the curtilage.

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 4) The Steps Taken to Protect the Area from Observation

There is no reasonable expectation of privacy for activities conducted out of

doors, in open fields, except in the areas shielded from view and immediately

surrounding the home. Oliver v. United States, 466 U.S. 170, 178 (1984). The

Fourth Amendment does not extend protection to open fields, which includes any

unoccupied or undeveloped area beyond the “immediate domestic establishment of

the home .” Id. at 180 n.11; see also Berrong, 712 F.2d at 1374. A perimeter

fence around property does not create a constitutionally protected interest in all the

open fields on the property. Hatch, 931 F.2d at 1480-81.

In this case, the pond area constituted an open field within the meaning of

the Court’s holding in Oliver. The property on which the house is located consists

of approximately five acres, bordered on two sides by roads and surrounded only

by a field fence through which one can see the property from the road.

Notwithstanding the perimeter fence, Taylor did not have a reasonable privacy

interest in the entire five acres of the property. The pond area is situated well

beyond the “immediate domestic establishment” of Taylor’s home and it is clearly

visible from the perimeter fence. No steps have been taken to protect it from view.

As an unoccupied and undeveloped area outside the immediate domestic

establishment, Taylor had no reasonable expectation of privacy in the area and the

14
pond was not within the curtilage of his home.

Upon review of the four Dunn factors, we conclude that the pond was

outside the curtilage of the Taylor home.

Having lawfully entered the Taylor property and received consent to search

the area near the pond, Deputy Robinson did not need permission to venture

outside the curtilage to follow the footprints leading to the pond.3 Therefore, his

search there was lawful and the district court correctly denied the motion to

suppress the evidence he found.

Accordingly, the denial of the motion to suppress is

AFFIRMED.

3
We need not decide whether the barn was within the curtilage since Deputy Robinson
had consent to search there.

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