United States v. Michael Johnson
256 F.3d 895 (2001)
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Rule of Law:
The hot pursuit exception to the Fourth Amendment's warrant requirement does not apply when there is a significant break in the pursuit of a misdemeanor suspect, and an officer's 'gut feeling' does not constitute probable cause to justify a warrantless entry and search of an innocent third party's property. Furthermore, appellate review of a district court's determination of what constitutes curtilage is conducted de novo.
Facts:
- Deputy Chris Kading identified Steven Dustin Smith, who had five outstanding misdemeanor arrest warrants, standing outside his home.
- As Deputy Kading approached, Smith fled on foot down a highway.
- Kading briefly subdued Smith with pepper spray, but Smith broke free and ran into a heavily wooded area.
- Kading lost sight of Smith, who was last seen running into the woods roughly halfway between his mother's driveway and the driveway of Michael Johnson.
- Approximately 30 minutes after losing sight of Smith, Kading and two other deputies arrived at Johnson's property.
- Johnson's property was secured by a 14-foot locked gate with a 'No Trespassing' sign and a 5-foot cyclone fence.
- The officers manipulated the gate's hasp to gain entry onto Johnson's property without a warrant to search for Smith.
- While searching the property, an officer approached a small 'mushroom shed' located approximately 40-50 yards from Johnson's house and smelled marijuana.
Procedural Posture:
- Michael Johnson was indicted in federal district court on one count of manufacturing marijuana.
- Johnson filed a motion to suppress the evidence obtained from the search of his property, arguing it violated the Fourth Amendment.
- The district court held an evidentiary hearing and denied the suppression motion, finding the warrantless search was justified under the 'hot pursuit' and 'exigent circumstances' exceptions.
- Johnson entered a conditional plea of guilty, preserving his right to appeal the denial of his motion.
- A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's decision.
- The Ninth Circuit granted a rehearing of the case en banc.
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Issue:
Does the hot pursuit exception to the Fourth Amendment warrant requirement justify a warrantless entry and search of a third party's private, fenced property when officers have lost sight of a misdemeanor suspect for thirty minutes and are acting on a 'gut feeling' that the suspect may be hiding there?
Opinions:
Majority - Judge Ferguson
No. The warrantless search of Johnson's property was not justified by the hot pursuit or exigent circumstances exceptions and violated the Fourth Amendment. First, the officers lacked probable cause for the search, as Deputy Kading's decision to enter Johnson's property was based on no more than an 'inarticulate hunch' or 'gut feeling,' not objective facts indicating Smith was there. Second, the 'hot pursuit' exception requires an 'immediate' and 'continuous' pursuit, which was broken by the 30-minute period during which officers had lost sight of Smith and had no new information on his whereabouts, turning the pursuit 'from lukewarm to ice cold.' The gravity of the underlying offenses (misdemeanors) and the fact that the search was conducted on the property of an uninvolved third party further weigh against the reasonableness of the warrantless entry.
Majority - Judge Kozinski
This opinion addresses a different issue and establishes a separate majority holding. On the issue of the standard of review, the determination of what constitutes curtilage must be reviewed de novo on appeal. Following the Supreme Court's reasoning in Ornelas v. United States, treating curtilage as a mixed question of law and fact subject to plenary review is necessary to ensure consistent application of the Fourth Amendment and provide clear guidance to law enforcement. Applying this standard, this opinion argues (though this application does not represent a majority holding) that the shed was outside the curtilage based on the four Dunn factors: its substantial distance from the home, its exclusion by an interior fence surrounding the home, its use for non-intimate activities (marijuana cultivation), and the lack of steps taken to shield it from observation.
Concurring - Judge Tashima
I concur with Judge Ferguson's opinion that the search was unconstitutional. However, Judge Kozinski's pronouncement that curtilage determinations are subject to de novo review is dicta because the court is not actually reviewing a curtilage determination but is remanding for the district court to make one in the first instance. Because this statement is not necessary to the case's disposition, it is not a binding holding and future panels are not bound by it.
Concurring - Judge Gould
I concur with Judge Kozinski's holding that Ornelas requires de novo review of curtilage decisions. However, I decline to join the part of the opinion debating what constitutes holding versus dicta. This debate is an academic exercise outside the scope of deciding the case or controversy at hand and should be left for a future case where it is necessary for the decision.
Concurring - Judge Paez
I concur with Judge Ferguson's opinion on the merits of the search. I also concur with Judge Kozinski's conclusion that the standard of review for curtilage determinations is de novo. However, because the district court never made a curtilage determination, the proper course is to remand for the district court to rule on the issue in the first instance, which we can then review.
Analysis:
This fractured en banc decision significantly impacts Fourth Amendment jurisprudence in two ways. First, it strictly construes the 'hot pursuit' exception, emphasizing that a pursuit must be truly continuous and immediate to justify a warrantless entry, and that such an intrusion is rarely reasonable for misdemeanor offenses, especially onto a third party's property. Second, a separate majority of the court established a new, binding precedent for the circuit by holding that curtilage determinations are subject to de novo appellate review. This shifts power to the appellate court to define the boundaries of the home's Fourth Amendment protection and aims to create a more uniform body of law, moving away from the deferential 'clear error' standard previously applied.
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