Being on probation does not mean all constitutional rights were waived. | Brennan v. Dawson.

Plaintiff-Appellant Joshua Brennan accuses Dawson of searching his curtilage without a warrant and arresting him for a probation violation without probable cause. On the evening of February 21, 2015, Dawson went to Brennan’s home to administer a portable alcohol breath test on Brennan, who was on probation. The terms of Brennan’s probation, imposed in August 2014, prohibited him from consuming alcohol and required him to submit to such tests at random.

When no one opened the door, Dawson made five to ten trips around the close perimeter of the home, knocking on and looking into doors and windows. Dawson also physically manipulated Brennan’s home security camera and activated his police cruiser’s lights and siren to rouse Brennan. When Brennan ultimately exited the home, he submitted to the breath test and registered a 0.000. Nonetheless, Dawson arrested Brennan for violating his probation by failing to take the breath test on demand.

The Fourth Amendment is at its strongest when the home is concerned: for centuries, the home “has been regarded as entitled to special protection,” and “[h]ome intrusions . . . are indeed the chief evil against which the Fourth Amendment is directed.”

Furthermore, the Fourth Amendment protects curtilage, the area immediately surrounding the home. United States v. Dunn, 480 U.S. 294, 300 (1987).

Although the Fourth Amendment protects the curtilage, a police officer has an implied license to enter the curtilage and attempt to speak with the home’s occupant, even if the officer lacks a search warrant. Jardines. The Supreme Court in Jardines underscored that the police officer’s implied license is strictly limited when the officer lacks a warrant. The Court explained that the implied license allows an officer to “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” If the occupant of the home does not wish to engage, the visitor must retreat, even if that visitor is a police officer.

Dawson exceeded his implied license when he repeatedly entered and traveled through Brennan’s curtilage over the course of ninety minutes and thus violated Brennan’s Fourth Amendment rights. Of course, Brennan was subject to at least some warrantless intrusions because his probation required him to take randomly administered breath tests on demand. But that condition did not expose his home to warrantless searches.

More on home searches:

More on curtilage:

Read full opinion here:

Anton Vialtsin, Esq.
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