4th Amendment Privacy Rights in your Backyard

Recently, I represented a young man who found himself in the backyard of a party in possession of alcohol and under 21 years old.  As he was hanging out with his friends, the police entered the fenced-in backyard through a closed gate.  The officers never announced their presence, did not request consent to enter, and did not obtain a search warrant.  Admittedly, the party was somewhat loud, as the officers were responding to an anonymous noise complaint from a neighbor.  Ultimately, the party was stopped, and many of the young people were cited for misdemeanor minor in possession of alcohol. 

So what are the limitations of a police officer entering a backyard without permission and without a warrant?  The Fourth Amendment to the United States Constitution which applies to the States through the Fourteenth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  U.S. Const. amend. IV  As the Sixth Circuit Court of Appeals has reasoned, “the zone of privacy protected by the Fourth Amendment is most clearly defined when bounded by the unambiguous physical dimensions of an individual’s home. . . . Indeed, the Fourth Amendment has drawn a firm line at the entrance to the house, a threshold which police officers generally may not cross without a warrant.”  Ingram v City of Colombus, 185 F3d 579, 586-87 (6th Cir. 1999)   This firm line has been extended to include the surrounding curtilage of the home.  See United States v Dunn, 480 US 294, 301 (1987)  As discussed by the 6th Circuit, the Dunn factors in determining what places outside of the home are protected by the 4th Amendment are interpreted as follows:

“The four factors are [1] the proximity of the area claimed to be curtilage 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.  These factors are not to be applied mechanically, but are simply useful analytical tools to consider the central question of whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection.  United States v. Jenkins, 124 F3d 768, 772 (6th Cir. 1997)(internal citations omitted)

In my client’s case, the City argued that the officers did not need a search warrant when entering the backyard because there were exigent circumstances present which allowed a warrantless entry into the yard.  In response, we argued that a noise complaint and hearing party noise was insufficient to override my client’s 4th Amendment protections.    

As the Supreme Court has stated, “whenever practical, [the police must] obtain advance judicial approval of searches and seizures through the warrant procedure,”  Terry v Ohio, 392 US 1, 20 (1968); and unwarranted “searches and seizures inside a home” bear heightened scrutiny,  Payton v New York, 445 US 573, 586 (1980)  The warrant requirement, Justice Jackson observed, ranks among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.” Johnson v United States, 333 US 10, 17 (1948)  The Supreme Court has accordingly declared warrantless searches, in the main, “per se unreasonable.” Mincey v Arizona, 437 US 385, 390 (1978)  Ultimately “the police bear a heavy burden,” when “attempting to demonstrate an urgent need that might justify warrantless searches.”  Welsh v Wisconsin, 466 US 740, 749-750 (1984)

A sub-issue in our case was exigent circumstances as they relate to overriding the 4th Amendment was the severity of the suspected charge itself.  The Welsh Court dealt with a situation in which the defendant, suspected of committing a non-jailable offense, was subjected to a warrantless entry of his home based on alleged exigent circumstances.   In overturning the finding of the lower courts, the Welsh Court found that “application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense, such as the kind at issue in this case, has been committed.”  Id at 743  In reaching this conclusion, the Welsh Court reasoned as follows:

“Our hesitation in finding exigent circumstances, especially when warrantless arrests in the home are at issue, is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor.  Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. See Payton v New York, supra, at 586.  When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.”  Id at 750

In our case, my client was charged with a local MIP ordinance which did not include jail time as a punishment.  Additionally, viewing MIP Ordinances in general, our local Federal Court has found that “there is no question that the [MIP] offense is relatively minor.”  Spencer v Bay City, 292 F Supp 2d 932, 945 (ED Mich 2003)   

Ultimately, the Court sided with our argument, first finding that my client did have a right to privacy in the backyard of the house, and then finding further that the officers violated my client’s 4th Amendment privacy rights.

In a side-note to this case, my client was the only defendant who challenged this search.  After we won, I received numerous phone calls from concerned parents who had retained lawyers who simply informed their clients to plead guilty.  This is a prime example about why it is important to have a lawyer who understands complex Constitional issues, such as 4th Amendment warrant violations.


Jim Amberg is a partner at the lawfirm of Amberg & Amberg, PLLC.  Jim has tried and won misdemeanor, felony, and federal jury trials and routinely handles everything from Major Narcotics Conspiracy to Murder cases.  He argued and won the legally significant case of United States v Presley in the 6th Circuit Court of Appeals.  Jim also has sued courts to stop the practice of illegally incarcerating minors.  Jim is an active member of the Criminal Defense Attorneys of Michigan, the Michigan Association for Justice, and the National Association of Criminal Defense Lawyers.  He has been named a Superlawyer by Superlawyer Magazine, a Top Lawyer by DBusiness Magazine, AV Rated by Martindale-Hubbell, and has a rating of Superb by AVVO.com.

If you have any legal questions regarding your case, please feel free to contact Jim at (248) 681-6255 or email at jamberg@amberglaw.net.