United States District Court, N.D. Ohio, Western Division
G. CARR SR. U.S. DISTRICT JUDGE
a criminal case in which the defendant has filed a motion to
suppress evidence found on his cell phone, which a Fostoria,
Ohio, police officer seized while present during the
execution of a search warrant. The defendant claims that the
seizure exceeded the scope of the warrant.
suppression hearings, the parties have submitted post-hearing
briefs (Docs. 33, 35, 38, 39). For the reasons that follow, I
deny the motion to suppress.
Fostoria Municipal Court Judge issued the warrant, which,
inter alia, commanded the applicant to “enter
. . . 1034 Gerlock Drive, City of Fostoria. . . . That being
the residence of Charles Brian O'Neill, . . . and . . .
search for . . ., cell phones located therein. . . .”
When the officers arrived at that address, the defendant was
not present. He arrived shortly after they had parked in the
driveway. An officer conducted an initial pat down for
weapons; the defendant had none. Shortly thereafter, while
the defendant was still in the driveway, the officer, seeing
a cell phone in the defendant's shirt pocket, seized the
phone. An on-scene technician's inspection revealed
evidence of child pornography, which the defendant's
motion seeks to suppress.
instant motion arises because the Fourth Amendment states, in
pertinent part, “the right of the people to be secure
in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, .
. . .” The gravamen of the defendant's motion is
that, because the warrant specifically and solely authorized
a search of the “residence of the defendant, ”
and not, as well, the defendant's “person, ”
the phone's seizure from his shirt pocket violated the
defendant frames his motion, the dispositive question is
whether the warrant's authorization to search the
“residence” limited the officers' ability to
search for items designated in the warrant only beneath the
roof of defendant's home, or whether its span encompassed
areas adjacent to the structure.
question raises three issues: 1) what areas does the Fourth
Amendment's term, “house, ” encompass - just
areas within its walls, or some outdoor areas, including the
driveway where the defendant was standing; 2) if not, did
some exception to the warrant requirement, such as the plain
view doctrine, allow the search; and 3) if not, does the good
faith exception to the exclusionary rule allow admission of
the challenged evidence?
Did the Warrant Encompass the Driveway?
government correctly asserts that a driveway proximate to a
house is part of the “curtilage, ” i.e.,
adjacent areas in which a resident has a reasonable
expectation of privacy fully entitled to the protection of
the Warrant Clause. See, e.g., Collins v.
Virginia, --- U.S. ---, ---, 138 S.Ct. 1663, 1671 (2018)
(warrantless entry onto driveway to search motorcycle
violated Fourth Amendment).
government's reliance on the Supreme Court's
inclusion of a driveway within the curtilage is misfocused.
That case, in contrast to this, involved warrantless entry
onto that part of the curtilage that included the driveway.
plain thrust of the defendant's argument - that the
driveway search exceeded the warrant - is that the search
here was, in effect, warrantless. If so, suppression must
occur. To read and apply Collins as the government
does would use a constitutional shield as a sword to undercut
and endanger the privacy interests that Collins and
the Fourth Amendment protect.
purposes of this opinion, I assume, without deciding, that
the span of the warrant's authority to search for cell
phones did not reach beyond the four walls of his residence.