Maryland Court Retains 4th Amendment Protections in Building Curtilage

The Maryland Court of Special Appeals ruled yesterday in McGurk v. State that an overnight guest was entitled to 4th Amendment protections when on a second-floor balcony at a friend’s home in Ocean City, Maryland. The decision is notable because of the Court’s analysis of the extent to which the 4th Amendment protections apply in an area that is arguably within the public view.

The application of the 4th Amendment of the United States Constitution to a particular set of facts in a criminal proceeding often involves a complex analysis of a convoluted area of the law. Fourth Amendment protections have evolved significantly over time, frequently changing with the evolution of the United States Supreme Court, as well as the Maryland appellate courts. An attorney experienced at presenting technical arguments to the Maryland Courts is essential for an individual who finds himself or herself facing criminal charges.

balcony_with_wooden_railing.JPGThe balcony in question in McGurk was a second-floor balcony with a wooden railing. There were plants, a glass table, and chairs on the balcony. A set of stairs led from the balcony down to the sidewalk in front of the house, and there was no gate blocking the entrance to the stairs or the balcony. Notably, the balcony was not the primary entrance to the residence. At 3:15 a.m. on a summer morning, an officer walked up the stairs to the balcony where McGurk and another individual were sitting because he was searching for the source of an odor of burnt marijuana. After questioning and ultimately searching McGurk and the other individual on the balcony, the officer found marijuana, cocaine, and a large amount of cash in McGurk’s possession. McGurk was found guilty after her attempts to suppress the evidence were futile, and she appealed.

In perhaps the most famous case addressing the protections provided by the 4th Amendment, the United States Supreme Court in Katz v. United States said that “the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

The McGurk case turned primarily on an analysis of what part of the area surrounding a dwelling is part of the “curtilage” of that dwelling, and thus whether there was an expectation that the balcony in question was open to the public or preserved as private. The United States Supreme Court held in United States v. Dunn that an area is considered to be part of the curtilage of a dwelling house if it is “intimately tied to the home itself.” For an area to be part of the curtilage of a home such that the 4th Amendment protections should apply, there must be a reasonable expectation of privacy. There is a two-part test to determining whether there is a reasonable expectation of privacy – an individual must demonstrate that he had an actual subjective expectation of privacy, and society must be willing to recognize that expectation as reasonable.”

Determining whether a particular area is part of the curtilage of a home and thus protected by the 4th Amendment requires an analysis of what the reasonable expectations of privacy were for the area. The McGurk Court held that areas surrounding a home that a visitor could reasonably be expected to cross when approaching the front door – for example, the driveway, front sidewalk, and front porch – are generally exempted from Fourth Amendment protection. A simpler way to put this, perhaps, is that the area that a mailman might traverse to get to a mailbox next to your front door will generally not be protected by the 4th Amendment, because it is open to the public. Other factors that are considered to determine whether the occupant of a dwelling intended to exclude the public from the premises, including: “1) whether the homeowner has erected any physical barriers, such as gates or fences, across the entrance to the property, and (2) whether the homeowner has posted signs, such as ‘no trespassing’ or ‘private property’ signs, indicating a desire to exclude the public from the premises.”

The Court ultimately found that McGurk had both a subjective expectation of privacy and a reasonable expectation of privacy on the balcony. Based on the chairs and table on the balcony, the Court found that it was essentially an extension of the home, and that McGurk’s expectation that her privacy in that space would not be invaded in the middle of the night was reasonable. As a result, the Court of Special Appeals suppressed all of the evidence obtained in the police search of McGurk and reversed the guilty verdict.

This case demonstrates how imperative it is for a criminal defendant to obtain defense counsel that has the understanding and experience to present all necessary arguments to the Court. Frequently, the defendant’s position requires a complex, nuanced argument that our criminal defense attorneys are experienced at providing.

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