by Sam Rutherford

The U.S. Court of Appeals for the Ninth Circuit granted a federal prisoner’s 28 U.S.C. § 2255 motion for habeas relief based on his claim that defense counsel provided ineffective assistance by failing to move to suppress evidence acquired after a police officer trespassed onto the curtilage of the prisoner’s home and observed criminal activity, which was then used to obtain a search warrant.

Background

In early 2012, Hao Tang was a drug dealer under investigation by the Department of Homeland Security. Federal officials intercepted calls between Tang and Tac Tran, who was on parole for a California state conviction. The phone calls led investigators to believe Tran had violated his parole by engaging in criminal activity, so they turned the case over to the Los Angeles County Sheriff’s Department.

The phone calls linked Tran to a house in the Los Angeles suburbs belonging to Harson Chong. Believing that Tran also lived at the residence, Sheriff’s deputies set up surveillance outside Chong’s house in July 2012. The house was located at the end of a cul-de-sac with a short driveway leading to a garage attached to the house.

The deputies observed Tran arriving at the house and entering the front door. Shortly thereafter, the garage door opened, and the deputies observed Tran sitting at a coffee table with two other men. The deputies believed they could conduct a warrantless parole search of the home based on Tran’s presence in the garage.

Deputy Choong Lee crossed through a neighbor’s front yard, hopped over a small retaining wall on the left side of Chong’s house, and stealthily approached the open garage door. Deputy Lee was standing on Chong’s driveway about a foot from the open garage door when Tran noticed him. Tran appeared startled by this observation and threw a baggie of methamphetamine on the coffee table. The deputies subsequently seized Tran and the baggie.

Deputies then conducted a warrantless “protective sweep” of the interior of the home, locating a large amount of cash in plain view. The investigators relied on the baggie and cash to obtain a search warrant for the home and, after a thorough search, located large amounts of ecstasy, methamphetamine, cocaine, and marijuana; three guns and ammunition; and digital scales. Tran and Chong were charged with federal drug and gun offenses.

They moved to suppress evidence seized from the home, arguing that the deputies’ parole search justification for the initial warrantless search was invalid because Tran was not a resident in Chong’s home. The U.S. District Court for the Central District of California ultimately concluded that, although the parole search exception to the warrant requirement did not apply, the initial search and subsequently obtained warrant were valid because Lee observed the baggie of methamphetamine in “plain view” while standing just outside Chong’s garage. Defense counsel failed to argue that Lee had no legal right to be standing in the curtilage of Chong’s house when he made this observation.

Tran and Chong were convicted as charged following a jury trial, and their convictions were affirmed on direct appeal. They filed § 2255 motions in the District Court, arguing that their defense attorneys provided ineffective assistance by failing to argue that Lee trespassed onto the curtilage of Chong’s home when he observed the methamphetamine and that the deputies’ subsequent search and seizure of evidence from Chong’s home was tainted by this initial illegality.

The District Court denied the motions, concluding that the area where Lee stood was not part of the curtilage of Chong’s home. Tran and Chong timely appealed.

Analysis

Criminal defendants have the right to effective assistance of defense counsel. U.S. Const., amend. VI. Defense counsel provides ineffective assistance when (1) counsel’s performance was constitutionally deficient, meaning it fell below an objective standard of reasonableness, and (2) that deficient performance causes prejudice sufficient to undermine a reviewing court’s confidence in the outcome of the case. Strickland v. Washington, 466 U.S. 668 (1984).

When an ineffective assistance claim is based on defense counsel’s failure to file a motion to suppress evidence, deficient performance is established when “no competent attorney would think a motion to suppress would have failed.” Premo v. Moore, 562 U.S. 115 (2011). Prejudice is established if the defendant would have prevailed on the suppression motion, and there is a reasonable probability that suppression of evidence would have affected the outcome. Bailey v. Newland, 263 F.3d 1022 (9th Cir. 2001). Thus, whether Tran and Chong’s attorneys provided ineffective assistance turned on whether Lee violated their rights under the Fourth Amendment by unlawfully entering the curtilage of Chong’s home.

The Fourth Amendment to the U.S. Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” A search occurs when police either (1) physically occupy private property for the purpose of obtaining information without the property owner’s explicit or implicit permission, or (2) violate a person’s subjective, reasonable expectation of privacy. United States v. Jones, 565 U.S. 400 (2012) (common-law trespass); Kyllo v. United States, 533 U.S. 27 (2002) (reasonable expectation of privacy). Both tests apply in determining whether a search occurred, and if either test is satisfied, the warrantless search is deemed unreasonable under the Fourth Amendment. Jones; Mendez v. City of Los Angeles, 897 F.3d 1067 (9th Cir. 2018).

The U.S. Supreme Court has long held that the Fourth Amendment protects “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505 (1961). A citizen’s home is not confined to the four walls of his home but extends to what has become known as the home’s “curtilage” or areas immediately surrounding and associated with the home. Florida v. Jardines, 569 U.S. 1 (2013). This distinction between a home’s curtilage, which is protected by the Fourth Amendment, and the “open fields” of a person’s property surrounding their home, which is not, has existed for at least a century. Hester v. United States, 265 U.S. 57 (1924).

In Jardines, the Supreme Court ruled that a person’s front porch was part of the home’s curtilage and that officers were not permitted to use a drug-sniffing dog on the porch without a warrant because doing so far exceeded “the customary license” people have to “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Similarly, the Supreme Court concluded that a driveway enclosure attached to a home with only side walls but no roof or door was also part of the home’s curtilage and thus could not be searched without a warrant or valid exception to the warrant requirement. See Collins v. Virginia, 584 U.S. 586 (2018).

Given this precedent, the Court could “easily conclude that the deputy was standing within the curtilage of Chong’s home when he saw Tran toss the drugs.” While recognizing that the lower federal courts have struggled with determining exactly how far from a person’s home the curtilage extends, “under any conception of curtilage, one foot from the garage door entrance of a single-family home on a residential street is surely within the curtilage of that home,” the Court declared. That Chong’s driveway was not enclosed simply does not matter because “entering within one step of an open garage door to investigate is comparable to trawling through the ‘front porch, side garden, or area outside the front window’—which are all considered protected curtilage.” Quoting Collins. Thus, the Court concluded that the trespassory test was satisfied.

The Court also concluded that Chong had a reasonable expectation of privacy in his garage because, “[w]hile an ‘individual may not legitimately demand privacy for activities conducted out of doors in fields,’ such an expectation of privacy may exist in ‘the area immediately surrounding the home.’” Quoting United States v. Gorman, 104 F.3d 272 (9th Cir. 1996). The fact that Chong’s garage door was open did not diminish his expectation of privacy because Lee could only see inside the garage by first jumping the neighbor’s fence and then approaching to within one foot of the open door to observe what transpired inside, the Court stated.

Because Lee did not observe criminal activity until he was well within the curtilage of Chong’s home, his initial observation of the methamphetamine violated Chong’s reasonable expectation of privacy. The search also satisfied the reasonable expectation of privacy test was thus unconstitutional, according to the Court. Because Lee’s unconstitutional observation formed the basis of the deputies’ subsequent protective sweep and warrant-based search, the Court held that all evidence seized from Chong’s home was obtained in violation of the Fourth Amendment.

The Government argued that the evidence seized from Chong’s house was nonetheless admissible under the good faith exception to the exclusionary rule because the deputies believed they could search the residence based on Tran’s status as a parolee and because they thought Chong’s driveway was not part of the curtilage of his home.

But the Court rejected both arguments. First, in order for the parole-search exception to apply, “officers must have probable cause to believe that the parolee is a resident of the house to be searched.” United States v. Grandberry, 730 F.3d 968 (9th Cir. 2013). The deputies lacked sufficient information to believe Tran lived in Chong’s home, so this exception did not apply. Second, Lee’s subjective belief that Chong’s driveway was not constitutionally protected did not matter because “no binding case pre-Jardines would have affirmatively permitted the deputy to enter within one foot of a garage door entrance in the surreptitious manner, and with the investigatory purpose, that he did here,” the Court explained. Thus, the exclusionary rule applied, and all evidence seized from Chong’s home must be suppressed.

The Court concluded that Chong’s attorney rendered deficient performance by failing to challenge the search of his home because “the curtilage argument here was not merely a winner but an obvious argument that counsel clearly should have made.” Supreme Court case law regarding the curtilage existed long before the search at issue here and Jardines, which reinforced this authority, was decided before the suppression hearing in the District Court. Thus, the Court concluded that “Chong’s counsel was thus plainly deficient for failing to raise such an obvious Fourth Amendment objection in the immediate wake of a directly on-point Supreme Court decision.”

Counsel’s deficient performance was sufficiently prejudicial under Strickland because, had defense counsel argued the curtilage issue, the District Court would have been compelled to suppress all evidence seized from Chong’s home, according to the Court. This created a “reasonable probability that the verdict would have been different’ given the probable exclusion of the drugs, guns, and money.” Quoting Kimmelman v. Morrison, 477 U.S. 365 (1986).

The Court explained that “Tran’s counsel’s performance is a different story.” In order for him to establish deficient performance, Tran had to show that he had standing to challenge the search of Chong’s home without a warrant. Nothing in the record established Tran had a privacy expectation in the garage, and “strategic reasons existed for distancing Tran from Chong’s home,” i.e., increasing his ties to the home would have strengthened the argument for the parole-search exception to apply. Thus, the Court ruled that the District Court did not err in denying Tran’s § 2255 motion.

Conclusion

Accordingly, the Court vacated the District Court’s order denying Chong’s § 2255 motion but affirmed the denial of Tran’s motion. See: Chong v. United States, 112 F.4th 848 (9th Cir. 2024).  

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