next on our calendar is united states versus alexander wait a couple minister i'm delighted that so many people are interested in the plight of a poor immigrant usually when this happens i say something like when the one percent leave and we get back to dealing we can get back to dealing with the routine business of the court but that's because usually these big audiences are for massive wall street cases where everybody in the room is getting paid to be there to monitor the argument they need a couple more minutes could you please shut the door back there at three am police officer a police officer with nothing more than a vague hunch walked eighty four feet down the side of mr alexander small staten island house to search the officer skipped the front door past the side door and he kept walking he didn't have a wire for that search didn't even have reasonable suspicion this kind of warrantless search of the area mediately surrounding someone's home is exactly what the porth amendment prohibits your suspicion but driveway and he sees something which causes him to be suspicious and you questions with every disagree with that permutation your honor he doesn't see the area that he is searching from the in front of his property and the front yard at some point mr alexander walks to the back yard and comes back at that point the officer decides to search mr alexander's property it's not that he sees generated drugs mr alexander said that those were his cousins and that he was standing out with an open container just drinking and then he kind of proceeded to move he announced that he's leaving not exactly clear to me what he said and what he was referring to the containers something else they see him pick up another bag and walk to the back that's right i think the facts about whether it was an open container or not if you was on public property or private property or not clear it doesn't matter if the officers wanted to ask questions relating to the drug arrest they could have done so with what they call as he picked up a bag and moved from one part of his property to another part of his property is that that is correct and the government does not contend that there was a reasonable suspicion i'm wondering if that's because it doesn't make a difference whether it's a reasonable suspicion that is to say your contention is this is a search that requires probable cause and their contention is this doesn't require anything because it's open fields saying that actually the whole question is what this area is and whether it has any protection at all and i do think that pictures are helpful as far as open field we're talking about this area right here a few feet from a home in staten island and your your honour's have copies of it at age twenty i have extra copies if you would like them this is just a few steps from his staten island home this dispute that the officer here is not going to the doors he passes both doors and again even that even if it were by the side door wouldn't save this case because we know that even if officers are going in a regularly access folk place where the public might know it doesn't matter if they're going there to conduct a search and we see the side door in any of the photographs on a  the area where the house which is orange has a little different that's where the side door is the indentation yes the searched area is the area that's past the driveway area so that's why that's why it isn't side not very distinct it no i think it doesn't isn't isn't that or is that is the side door the part if you look at your own brief that page eighty four is the side door that little strip of wh makes complete sense here either way the officer was not going to the side door he wasn't going to approach so insecurely thinking about how the property works and what one might conclude as curtilage one might conclude is not curtilage based on reasonable expectations visitors cases of field accordingly drive into a driveway and and there if there's another door there that's also kind of part of the license to approach a door to the house it may be that other people typically use the front door but isn't there maybe a diminished expectation of privacy in a an enclosed driveway and in a driveway to begin with that's short and as in which one might park  visiting there are few things there are a purse this is past the driveway so we'd be in a different we have a different conversation if the officer searched at the side door we don't have a different conversation if the  driving and going to the side door to knock on the door jodi makes clear that your purpose if the officers are there to search even if they follow the common pathway up a front porch where all the visitors go that's still not ok if the officers are doing that to search so if the officers went to the side door to search your dean they were entitle to go on the porch and to be on the porch what they could do was use the dog to sniff inside what was going on  they couldn't conduct their presence was permissible and so here similarly the presence in an area as to which there's a diminished expectation of privacy because of its openness to the public and customs of usage seem to me you know the presence in an area that is customary to visitors to search as much our dean says is not allowed but even if that but this is past the driveway additionally so that's not the scenario we're in the officer isn't in the portion of the property that is available to visitors the officer is passed that he is searching and i think i'd like to addressing as a factual matter where this bag was that was located and looked into that is past the area to which a visitor who was going to the side door would go and that would be your response to whether the officer was somehow licensed to do this do what he  did but you're also saying that as a matter of curtilage what if the first question is is this curtilage or not the fact that someone would go there or might be an ordinary visitor might be licensed you know your friend you're the jehovah's witness fuller brush man who goes to the door enjoyed beans it's still curtilage the porch in dry dreams is still curtilage that's the first thing even though people might be licensed to go up on it to ring the doorbell but they wouldn't be licensed to look under the seats of the porch swing to search for what might be there that is that your understanding of the  i think that raises an important issue that your honor was asking about visibility homes have windows that doesn't mean they don't have fourth amendment protection just because you can see that there is a shed doesn't mean that officers  really focused on where the officer is or the bank was where the bag was and the bag is in an area that is protected but with your you would agree that if what the officer saw from the street in front of the shed was a big pile of white powder with a sign on it that said cocaine that the officer could go with that then would have a plain view of what was there and would have the opportunity to seize that would you agree with that i think what your honor is suggesting it then there'd be a warrant exception like destruction of evidence or some exigency that would permit the seizure of evidence that was seen in plain view from the street right but that wouldn't change that it was the curtilage that's pretty active in here your argument is what they saw from the street if they could see anything in the dark was at most a bag there was nothing in plain view about that bag that said that's obviously guns that's obviously contraband that's obviously evidence is that that is that into the record that's correct i talked to record suggested that there were parts of the gun that were protruding from the bag once the officer had gotten up and he can see that actually no not from the street right once the officer had already gone back to conduct his search that was his test so conceivably if there was a bag that broad daylight and from the street the officer could see the barrel of a machine gun poking out of the bag the officer on the ground he did say he would might have had the right to go and sees that at that point he might have under existence but that's not this case that's correct was from the street all that was seen was something that the officer said i'd like to search that and then he went back and when he got back to do his search at that point his testimony is he could see the barrel of the gun or some part of the gun for it that's right you know organization a gun there to do that so would he have been intitled to stand in the street if for example if there were no cars there and shine a light back looking around to see what mr alexander had dropped and if he were able to with the assistance of a lamp in the middle of the night able to see the bat with guns sticking out would he be entitled to  this court has made clear that it does that guy never being in a high crime neighborhood is an exit even in that scenario if they had seen this from the street which they didn't they can't just walk onto your property what the government is really arguing here is that if you have a small staten island property or any small property where you're not in closing your property in a fence because it's just really not necessary for everyone to do that you have no fourth amendment protection in an area a few feet  to seeing whether the government would want to distinguish the hypothetical about proposed the government's proposition is that an officer patrolling the neighborhood could just decide to go back into this man's backyard for no reason at all and poke around and see if there was a bag that might be of interest when he went back there with no with no basis whatsoever that's the government's position because it is not enclosed behind a fence and is not cur something that he could put in a want to explain why he wanted to enter the property this is a situation where be readily apparent to the public that this is private property this is an unclear it's not even cases that this court has decided where the areas three hundred seventy five feet from the home can still be protected it's clear it's readily apparent that this is an area immediately surrounding his home and there's also testimony that it's used for activities of the home like barbecues it's a chair that searched there's a chair sitting there were certainly supports that it's a reasonable if the testimony is reasonable that they hang out there would you say that the dunn factors have been just totally overtaken by events dunn is too old your dean is really has a different approach and we shouldn't really attach any weight to whether it was enclosed the measures taken by mr alexander protect his affects from view from the street and the nature of the uses to which the property is put you just saying that this is in the small in this neighborhood should be deemed curtilage all the pertinent to the home in the sense of privacy around the home and therefore clear here the first one factor is proximity and that is overwhelmingly in favor of finding that it is protected here and the other thing that is that that supports that is the uses and the district court  used recreationally those two factors are enough the other two factors are really about visibility and i think that this court's decision closure and one is visibility and i see them as somewhat different i'll address both of them your honor in reilly where this court discussed the dunn factors at length the court mentioned how enclosure is really useful when we have layers of fencing that's the same thing that dunn said when somebody is indicating with the fence this is the area of my home and then they have another fence around a different area of their property enclosure can be useful in brian lee the court said it's not that useful because that property didn't have those layers of fencing even though it was quite large the court talked about how i read apparent that this was the area that was part of the homestead even though and rightly it was three hundred seventy five feet away that's the same thing with observation in this kind of situation it's you don't lose your fourth amendment just because you can see that there's an area back there just like you don't lose your fourth amendment in your face because you have windows very good thank you very much you'll hear from the government good morning may please the court my name is sandra gilman and i represent united states yawners the district court properly denied the defendant's motion to suppress two semiautomatic firearms found on the top of the defendant simply recognizing what they were that the government found ok so we should focus on let's talk about the issue is the government's position that if an officer on patrol is walking down this street the officer has every right to treat this area of the backyard of this house as part of his patrol that is not the government's position your honor will tell me why it isn't in the backyard your honor is entirely distinct from the driveway here  wait this is this is the grass beyond the driveway right that's incorrect on to the district court made a factual finding subject to clearly erroneous review that was actually supported by the record that the gun was found the that the driveway leads to i think it's most helpful that's correct runner so if the chair was on the grass it would be different i think the analysis still the same there because or any part of this so the officer walking down the street in front of the house would be entitled as part of his patrol to walk up the driveway and walk to the back fence and be what he saw not that back fence around or what not that's not the that's not the record here that's no why not your honor the driveway itself constitutes an open field is that supreme court has used that term because it's not within the houses curtilage aligned with dunn factors grass over here so he couldn't go to the back fence he could go up to the shed on this grass patch he could go right up to where the driveway ends at the shed where the gun was found that the testimony specifically could walk over here what distinguishes the driveway from the area leading to the back fence putting aside for a moment what is literally behind the house that could not be seen from the front on view are you saying that why isn't all of this an open field that's not fenced right there's no nothing that prevents the officer from seeing it the officer as part of his patrol you're saying at a minimum is entitled just as he was on the street to walk up here and peer into the shed if the door is open and if he sees something incriminating he can get it right because he would be where he has a right to be as part of his routine patrol without any suspicion leading him to go there that's that's correct your honor and i would direct  court to judge lynch your own opinion in united states versus our which was post jordan's which recognize that when a police officer enters private property for legitimate law enforcement law enforcement purpose and barks only pun places visitors c is made from such vantage points are not covered by the fourth amendment right but i agree that once he is there if you say that he's entitled as part of his patrol to walk into this area anything he sees is fair game that's agreed right that's correct as well as so if we say that this is not part of the curtilage then an officer is entitled as part of his routine patrol not confined to the sidewalk can simply because he's interested in this person who lives in this house to walk all the way back to this shed look into the shed if the door is open look around the back of the house and see if there's anything in that backyard  that might be evidence because it's just part of his routine patrol it is an open field it is equivalent to the sidewalk so i breath is that the government's position or is it not that's not going to prison or explain why why is this case different than that this case is different because most of first address your specific hypothetical to address the hypothetical if the officer was on the driveway which govern argues is not the curtilage and saw something in the backyard close to the house that typically as the just report probably recognize here respect to the bottle the defendant had is part of the house's curtilage and he would not be authorized to go into that back yard and sees that cartilage i think would be if there was some obviously contraband material in plain view it would bend i think he would need to be perhaps an exigency to justify him entering the property to seize that item he has the option of you know freezing the scene in applying for gordon point is your position is that an officer on routine patrol can treat anything that can be seen up to the level of the driveway and the end of the concrete there as part of his patrol the officer is perfectly entitled just as he is on the sidewalk to walk up there for any reason or no reason at all on to that piece of property that's correct  that that holding is consistent with the myriad of cases in this circuit and others finding that driveways typically fall outside the houses curtilage absolute position what about seeing something from the sidewalk found the bottle which was behind the house in which the court found was within the curtilage was right next to the house within a foot maybe that he then he's standing there he then decides to use his flashlight and look around and makes a circle sweep so he's within the kernel edge of the house he is right next to the house is what he says i went to where the bottle was he says and that my flashlight and i did a radius circle check of the area to see the bag and so what did you see i saw black back on top of the chair it seemed to be the same bag this was my flashlight right over here i went to where the bottle was and i stepped over it with like a circle so he's right next to the house he's not at the top of the driveway he's not in the area that you claim is is public area even were we to go down that path he is elsewhere and that was the source of my question earlier about what do we focus on where the officer is which seems to be the the nature of the intrusion rather than where the thing found was yes for to address that concern and i will and to distinguish the bottle from the firearms specifically in the backyard which is which is part of the curtilage officer would not be was in the curtilage when he found the bottle but when he found the guns which were in the top of the driveway that was outside the curtilage as a joke but he but he found it because standing in the curtilage he takes his flashlight and then proceeds to look all around in the backyard right and over to the driveway so you're saying it doesn't matter where he was it matters just where the back was is that right both both both are important factors i think in determining the appropriateness the officer needs to be in a position where he is constitutionally permitted to be if he's within say you know the license of approaching a porch and he's on the porch jordan says he can't search there with a dog but of course any man is allowed to knock in another store and if he sees something plainly contraband in plain view when he's on the porch he's in a position to to seize that and so both are important t walks into the back of the house to see better and at that point he does a sweep and sees we don't know exactly but some bag that rose is suspicion so he's even eerie that he who goes there because of the suspicion is there some categories between the two i'm not aware of a category between the two the supreme court in  terminology for the doctrine of the area that's not the kernel it should so the result is that you know whatever they are in is of the terminology the government's position is there are two things that any space outside the physical walls of the house can be one of them is curtilage and a search of the curtilage requires probable cause and a warrant and the rest whether you call it open fields or something else is fair game and there need be no probable cause and there need be no reasonable suspicion right it's that scripture and the government does not can not contended that there was a reasonable suspicion here maybe it should have or could have or maybe we might think that but as i read your brief i did not see any argument that this was ok because there was a reasonable suspicion i believe that's correct and you're saying it's ok regardless if it's just a hunch if it's not even a rise to the level of a hunch those saying before it would be perfectly ok for the officer to treat as part of his regular rounds going up every driveway of every house on the street that looked more or less like this there can't be can't the police that's police can abuse their authority on or provided what would make it an abuse you're saying there is no legal requirement for any reasonable suspicion or probable cause or any other basis because it is an open field and i don't want to i recognize that the fact that it's not a field is not  germane but it is an area that is of vailable to routine police in fruition because there is no legal doctrine that gives any expectation of privacy whatsoever even one protected meet a prostitute they're going there because it's part of their routine patrol to look and see if there's something in the neighborhood just like on the sidewalk you can't we kind of fencing about something that we try to put you into categories i would suggest that would not be a good officer in fact according to suspicion and go into this sort of a semi open area i would consider that entry to that property to be a legitimate law enforcement person i don't know what the clearly we would say he was acting too precocious i think that's right and i don't know what category my whole hypothetical leads but maybe we could create one and say there's something that requires a reasonable suspicion but the government has not argued that the suspicion was reasonable which is normally the prerequisite to something less than a probable cause search and the district court did not make any finding that there was a reasonable suspicion because that wasn't the argument right that's right your honor and i think the case law is clear that this quote unquote trespass is allowed in an open field when the officers on a legitimate law enforcement purpose conducting an investigation and in a c fact dependent test that is guided by the fire that is controlled by the factors and recognized in the united states versus done the appropriate test to determine whether an area or properties within the kernel true or not even after this us in your honor that it is practicable for the for the defendant it is possible for him to be able to enclose that area such that he would create a reasonable expectation of privacy for himself under the done factors are you saying they have to be i would distinguish between enclosure and visibility mean this was enclosed large part but it's a hurricane fence you could see cross it and so there are different it's an assertion of property rights but maybe not of the same level of privacy as it would be if everything was behind it with the fence we're not transparent i think that's right on or both factors are now see are parts of what goes on analysis factors that you just mentioned all militate in favor of the district court's finding that the gun was not within the kernel if it's an open publicly accessible portion of this driveway a driveway which delivery visitors are permitted to drive up and use to enter the house that that type of of area of household typically falls outside falls outside the curtilage except the front porch a front porch is would be entirely different animal you're on it it's a much even though people go up on it all the time it was held to be part of the curtilage people know that the but a driveway is different than a porch because it's the nature of the use in my mind that really distinguishes the driveway and the porch the porch is much more connected with the intimate activities inside the household which is courage the backyard would be because it's not visible from the street would be curtilage i think that's the but the side part of the backyard that can be seen from the street and the driveway is not because it's visible like the porch but is not used maybe the grass part is because that's used for barbecues but they said the concrete was used for barbecues also so what is it about driveways that's different than porches exactly on the facts of this case what distinguishes the porch and guardians from this driveway because the driveway the nature it's really the nature of the used nature of the driveway is you can bring a current to it that's correct the nature of the porch is you can walk on it house except for the side door here the part of the driveway that the obvious who into it was not part of what the public would use to go into a house was beyond sorry or what was as recently as united states versus jones that a common trespass is allowed as long as that area trust upon press pass upon by law enforcement is an open field that is outside of the house's court of lets the private property is a car and you put a g p s device on it because then the property in this information is suddenly what's totally controlling that that the court determined that property be effect a car specifically that determination controlled there but we're in a different counties here in united states versus done which is the appropriate analysis here and those factors taken together correctly determine that this driveway consistent with the holding of this circuit united states versus ha judge lynch is correct or either what the government is arguing means that police can just walk down people's driveways and into the back and search just you know this is dependent on the time of day in which the activity occurs that that was the theme in the in your brief and i was troubled by the notion that what is cruel legit and what isn't might depend on the time of day it doesn't you know the tire of day would only matter if the officer was saying i was just going up to the front door to knock ask a couple questions then the time of day might matter because people don't do that in the middle of the night but for it for this now this is always going to be part of the curtilage it is a night time and it is it is in the morning and is concerned about reasonable suspicion reasonable this of what an officer would do we don't need a new framework of constitutional law to deal with this we have the framework if an officer sees something from the street that g might trigger under other circumstances under other fourth amendment doctrines some further inquiry or intrusion but not necessarily something sufficient to get a warrant but that doesn't allow the have it's to reasonable to suppose suppose we entertain because i'm attracted to tellus things argument that maybe there is something or should be something that's in between the kind of open field that the officer can just go into without any reasonable suspicion so long as he's on police business which is checking to see that there's something if there's something wrong and curtilage that requires a warrant and probable cause are you in a position to argue whether the suspicion was reasonable or is it that because this record was not developed on that argument it's not  and holding an open container whenever it's three in the morning still and and october right it's i think two years ago it's halloween and he sees the guy go to the back while they're in the middle of this rest activity and pick up a bag and move something which didn't have to be moved it wasn't in the way nothing was going on that required it to be moved there was obvious at all and he comes back without the bag or or the bottle that didn't have to happen when one might get eight have some kind of concerned raised about why someone why he took this action why why is that why is that not that's not what they did here and it's we don't want to officers to answer the question about reason of this we don't want them just to poke around people's yards and see what they might find on a hunch we want them to ask a question if they have a