This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.
Id.
To that end, the Fourth Amendment also protects the curtilage, the area “immediately surrounding and associated with the home, ” which is classified as “ part of the home itself for Fourth Amendment purposes.” Id. (quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742 (1984)); McClintock v. State, 405 S.W.3d 277, 283 (Tex. App.—Houston [1st Dist.] 2013, pet. granted). The curtilage is the area around the home, including porches and other areas adjacent to the home, that is “intimately linked to the home, both physically and psychologically” and “to which the activity of the home life extends.” Jardines, 133 S.Ct. at 1415 (quoting California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 1812 (1986) and Oliver, 466 U.S. at 182 n.12, 104 S.Ct. at 1743 n.12).
Defining the boundaries of curtilage is a “familiar” concept “easily understood from our daily experience.” Oliver, 466 U.S. at 182 n.12, 104 S.Ct. at 1743 n.12; McClintock, 405 S.W.3d at 283. In determining whether a particular area is so intimately tied to the home as to constitute curtilage, we consider factors including (1) the proximity of the area to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by people passing by. See United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139 (1987). Whether a particular area is included within the curtilage is determined by whether the defendant had a reasonable expectation of privacy in the area. Porteous v. State, 259 S.W.3d 741, 746 (Tex. App.— Houston [1st Dist.] 2007), pet. dism’d, improvidently granted, 253 S.W.3d 288 (Tex. Crim. App. 2008).
Here, the officers observed appellant’s activities inside his house while standing in the flowerbed located directly underneath his kitchen window. This flowerbed, although visible to the public from the street bordering the north side of the house, was not located on the same side of appellant’s house as either the front or back door to the home and was not located next to a sidewalk or other walkway. There is no indication that this flowerbed was used for any purpose other than to hold plants and flowers, and there is no indication that the public was invited to stand in or walk through this flowerbed. We conclude that the flowerbed is clearly part of the area “immediately surrounding and associated with the home” and falls within the curtilage of appellant’s home, thus entitling it to the same Fourth Amendment protection afforded to appellant’s home itself. See Jardines, 133 S.Ct. at 1414 (stating that person’s Fourth Amendment right to be free from government intrusion in own home “would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity”). The flowerbed under appellant’s kitchen window is therefore a constitutionally protected area.
2. Intrusion onto curtilage not justified
Law enforcement officers are not required to “‘shield their eyes’ when passing by the home ‘on public thoroughfares, ‘” but their ability “to gather information is sharply circumscribed” when they leave the public thoroughfares and enter constitutionally protected areas. Id. at 1415 (quoting Ciraolo, 476 U.S. at 213, 106 S.Ct. at 1812). When officers gather information in constitutionally protected areas, we must determine whether this was “accomplished through an unlicensed physical intrusion” onto the property. Id. Law enforcement officers, like members of the public, have an implied license to approach a home via the front walkway and knock on the front door. Id. (“This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.”); McClintock, 405 S.W.3d at 283 (stating that, generally, “police may approach a home and enter the curtilage to knock on a door, just as any private citizen might”); Washington v. State, 152 S.W.3d 209, 214 (Tex. App.—Amarillo 2004, no pet.) (holding that general restrictions upon intruding upon curtilage do “not prevent a police officer from approaching and knocking upon the front door of a home”). Police officers who do not have a warrant to search the property “may approach a home and knock, precisely because that is ‘no more than any private citizen might do.’” Jardines, 133 S.Ct. at 1416 (quoting Kentucky v. King, 131 S.Ct. 1849, 1862 (2011)).
This implied license granting permission to police officers to enter onto the curtilage to contact the resident exists so long as the resident has not manifested an intent to restrict access to his home, such as by locking a gate or posting signs indicating that the officer is not invited, and the officer “does not deviate from the normal path of traffic” to the front or back door of the house. See Washington, 152 S.W.3d at 215 (citing Buchanan v. State, 129 S.W.3d 767, 773 (Tex. App.— Amarillo 2004, pet. ref’d)); see also Duhig v. State, 171 S.W.3d 631, 637–38 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (citing with approval cases from other intermediate appellate courts holding that approaching back door of home is permissible and does not constitute search when officers have first tried front door and received no answer). A license to enter onto property is limited to a particular area of the property. See Jardines, 133 S.Ct. at 1416. Thus, an implied license to approach the front door via the front walkway to contact the resident does not extend permission to walk up to a window located on a separate side of the house to attempt to contact the resident. See id. (“The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose.”); McClintock, 405 S.W.3d at 283 (noting that implied licenses to enter onto curtilage are “granted by custom”).
In this case, a small yard separated the northern side of the house from the street where the officers arrested Sucarichi. Although the officers could see a flickering light and the silhouettes of two men through the kitchen window from their position in the street, they were unable to positively identify the men or determine what the men were doing inside. The officers made no attempt to contact appellant and Scalia by using the front or back doors to appellant’s residence. Instead, after deciding to accommodate Sucarichi’s request to leave her keys with either appellant or Scalia, Officer Becker approached the kitchen window, which was located on a different side of the house from either the front or back doors, which were located on the western and eastern sides of the house, respectively. No pathways led to this window, no pathways ran next to this window, and the officers had to stand in a flowerbed located directly under the window in order to see inside. One of the officers was not tall enough to see inside the window.
Unlike a window located next to a front door, for example, this window was not located near any established pathway to approach appellant’s house. Cf. King, 131 S.Ct. at 1858 (“[W]e have held that law enforcement officers may seize evidence in plain view, provided that they have not violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made.”); Duhig, 171 S.W.3d at 636 (“While rightfully at the front door, the deputies were free to observe evidence in ‘plain view.’”) (emphasis added); Washington, 152 S.W.3d at 214 (“Because entry is impliedly authorized, there exists no reasonable expectation [of privacy] with regard to things observed by those on the pathway to the house.”). Custom may have granted the officers an implied license to approach appellant’s front or back door to contact him and hand over Sucarichi’s keys, but it did not grant them license to approach a completely unrelated area of the house. See Jardines, 133 S.Ct. at 1416. Indeed, as the Supreme Court noted in Jardines,
To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to— well, call the police.
Id. Here, the officers discovered evidence of appellant’s wrongdoing solely by physically entering onto an area of appellant’s property where they had no right or license to be and then looking through his kitchen window.[3] This activity by the officers constitutes a search. See id. at 1417 (“That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.”).
While acknowledging that “no case is factually similar, ” the State relies on our opinion in Atkins v. State, 882 S.W.2d 910 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d), for the proposition that the officers’ actions here did not constitute a search. In Atkins, the investigating officers received a tip that narcotics were being sold from a particular address. Id. at 912. Two officers simultaneously approached the house to talk to the occupants; one approached the front door while the other approached the back door. Id. As the officer approached the back door, Atkins went out the back door into the backyard and, startled by the officer’s presence, dropped two plastic baggies containing heroin. Id. In affirming the trial court’s denial of Atkins’s motion to suppress, we noted that the officer intruded on the curtilage, that the “evidence indicate[d] the way to the rear of the house was not an area to which the general public was invited, ” and that “ [t]here is no testimony that the back door was in plain view.” Id. at 913. However, in agreeing with the State that the officer’s activity did not constitute a search, we relied on two previous Court of Criminal Appeals cases holding that officers’ attempts to contact the occupants of a house via either the front door or the back door to the residence does not constitute a search. See id. (“[T]here is no evidence in the case to indicate anything other than the reasonable inference that the officer was making a joint initial attempt with the other officer to contact the inhabitants of the house, as sanctioned in Long and Gonzalez.”) (citing Long v. State, 532 S.W.2d 591, 594– 95 (Tex. Crim. App. 1975) and Gonzalez v. State, 588 S.W.2d 355, 360 (Tex. Crim. App. 1979)).
Atkins is factually distinguishable. The officer in Atkins was on his way to the back door to contact the occupants, as was permissible under prior holdings from the Court of Criminal Appeals, when he observed Atkins in possession of heroin. See id. Here, the officers ignored appellant’s front and back doors and instead approached a window not located near either of these established entry points into appellant’s house and not located along established pathways to these entry points. Only by standing in the flowerbed and looking into the window could the officers see any evidence of wrongdoing.[4] Moreover, more recent case law cites Atkins for the proposition that officers may permissibly enter the curtilage of a residence to contact the occupant when the occupant has not manifested his intent to prohibit or restrict access or the officer does not “deviate from the normal path of traffic.” See Washington, 152 S.W.3d at 214–15; Buchanan, 129 S.W.3d at 772–73. Here, the officers ignored the normal path of traffic to appellant’s front and back doors and instead chose to approach a completely distinct window located on another side of the house.
The officers made the observations leading to appellant’s arrest from the curtilage, a constitutionally protected area, and they had neither an express nor an implied license to be in the specific area of the curtilage from which they made their observations. It is undisputed that the officers did not have a warrant to search appellant’s house and that the officers did not have probable cause to believe that any criminal activity was occurring in the house. The State does not argue that any other established exception to the warrant requirement applies to justify the search that occurred in this case.
We conclude that the officers in this case engaged in an unconstitutional search when they looked through appellant’s kitchen window, a window not located near any established pathway to a door to appellant’s house. We hold that the trial court erred when it denied appellant’s motion to suppress.
We sustain appellant’s sole issue.[5]
Conclusion
We reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.
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