Officers receive a complaint from defendant' neighbor that defendant had fired a gun during a confrontation between the two of them. Earlier that evening, neighbor had returned home from work and found that his door had been kicked in by the defendant. The neighbor, accompanied by his friend, went over to the defendant's home to confront him. The neighbor and his friend followed the defendant in their car when he left his home and proceeded to harass and shout obscenities at him has he walked down an alley. After they drove away the neighbor heard two gunshots fired in the area. The neighbor then called police.

In response to the complaint, the officers went to the defendant's home. Receiving no answer at the door, they walked down the common driveway. As they were walking, the officers directed their attention to the defendant's open bedroom window. The only light illuminating the room was an outside streetlight. The officers observed the defendant lying asleep on his bed, holding what appeared to be a gun. To assist in identifying if the defendant had a gun, the officers used a flashlight pointed inside the room. The officers were not sure if they were at all times on the common driveway or if they at some point entered the fence enclosing defendant's property.

Officers then determined that defendant had a prior felony conviction. They then decided to enter the defendant's home without a search warrant. When the defendant failed to answer the door, they entered through the window and arrested the defendant.

Issues:

(A)Plain view: Were the officers observations a search, thus triggering the plain view doctrine? If so, was the officers discovery of the defendants gun possession excusable under the plain view doctrine? Would it have been okay if the officers were positive that they had not entered the defendant's fenced-in yard? If not, did the fact that the police used a flashlight to better view the gun create a greater intrusion to make observations a search?

(B)Warrantless entry: The police stated that they decided to enter the home immediately without waiting for a search warrant because of exigent circumstances. They felt that because the defendant allegedly had fired the gun there was concern for the safety of others in the area. Was there really an immediate danger of the defendant harming others when he was asleep on his bed at the time? No eyewitnesses had actually seen the defendant fire the gunshots. Does this effect the judgement that the defendant could be dangerous? Also, consider that the police forcibly entered the defendant's home.

Katherine Bone

Emory Law

Answer:

(A) The officers must not have violated the fourth amendment in arriving at the place from which the items were plainly viewed.  If they entered the curtilage (backyard) without a warrant they violated this requirement of the plain view doctrine.  The flashlight does not create a greater intrusion because it is not a high tech item not in use by the general public.

(B) One of these circumstances must apply 1- imminent destruction of evidence 2-prevent harm to persons or 3- in hot pursuit of felony suspect.  None of these seem to apply, therefore, there was no recognized exigent circumstance.