Border Patrol Crossed Line in Migrants Bust

June 1, 2012
By TIM HULL
Courthouse News Service

(CN) - U.S. Border Patrol agents went well beyond the so-called "knock and talk" exception when they entered and searched the property of a man suspected of harboring illegal migrants, the 9th Circuit ruled Thursday.

The federal appeals court in Pasadena reversed Heriberto Perea-Rey's 2010 guilty-plea conviction for harboring aliens, finding that the Border Patrol's "warrantless incursion into the curtilage of [his] home" had violated the Calexico, Calif. resident's rights under the Fourth Amendment.

The agents arrived at Perea-Rey's home after following a man whom they'd previously observed climbing over the border fence. After watching the suspected illegal migrant talking to Perea-Rey in his carport, the agents approached the suspects. Perea-Rey refused to allow the agents to enter his property, so, guns drawn, they ordered everyone out of the house. Six suspected illegal migrants came out, and agents found a seventh during a search.

Perea-Rey moved to suppress the evidence during his trial in San Diego District Court, alleging that the search had been illegal. Presiding U.S. District Judge Larry Burns found that, because Perea-Rey's carport could be seen from the sidewalk, he could not expect privacy. Thus the agents had been allowed to enter the carport without a warrant, and to knock on the side door and eventually order people out of the house. Burns did however grant the defendant's motion to suppress evidence gleaned inside the home.

Perea-Rey appealed to the 9th Circuit after entering a conditional plea of guilty to one count. A three-judge panel reversed the conviction unanimously.

"The district court circularly reasoned that because the agents were able to freely enter the carport, Perea-Rey had no reasonable expectation of privacy in the carport," wrote Judge Kim McLane Wardlaw for the panel. "Yet, because it was curtilage, it was a constitutionally protected area, and the warrantless entry, search and seizure by the agents violated Perea-Rey's Fourth Amendment rights"

The prosecution cited the "knock and talk" exception to the general requirement that law enforcement must have a warrant to enter private property, arguing that agents had a right to question Perea-Rey about possible illegal activity.

But in this case, the agents "did not enter the yard and knock on the front door to initiate a consensual contact with Perea-Rey.," the panel found. Instead they "intrude[ed] into an area of the curtilage where uninvited visitors would not be expected to appear."

"If we were to construe the knock and talk exception to allow officers to meander around the curtilage and engage in warrantless detentions and seizures of residents, the exception would swallow the rule that the curtilage is the home for Fourth Amendment purposes," Wardlaw wrote.

She added: "To be clear, it remains permissible for officers to approach a home to contact the inhabitants. The constitutionality of such entries into the curtilage hinges on whether the officer's actions are consistent with an attempt to initiate consensual contact with the occupants of the home."

One Old Vet

Courthouse News Service

"To be clear, it remains permissible for officers to approach a home to contact the inhabitants. The constitutionality of such entries into the curtilage hinges on whether the officer's actions are consistent with an attempt to initiate consensual contact with the occupants of the home."

Consensual contact with someone who knows they've been busted? What's the alternative, an Elian Gonzalez approach?