USA v. Heriberto Perea-Rey

Filing

FILED OPINION (ALFRED T. GOODWIN, KIM MCLANE WARDLAW and WILLIAM K. SESSIONS, III) REVERSED AND REMANDED. Judge: KMW Authoring, FILED AND ENTERED JUDGMENT. [8196426]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HERIBERTO PEREA-REY,
Defendant-Appellant.





No. 10-50632
D.C. No.
3:10-cr-01707LAB-1
OPINION

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
October 13, 2011—Pasadena, California
Filed May 31, 2012
Before: Alfred T. Goodwin and Kim McLane Wardlaw,
Circuit Judges, and William K. Sessions III,
District Judge.*
Opinion by Judge Wardlaw

*The Honorable William K. Sessions III, District Judge, United States
District Court for Vermont, sitting by designation.

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UNITED STATES v. PEREA-REY

COUNSEL
Gregory T. Murphy, Federal Defenders of San Diego, Inc.,
San Diego, California, for the defendant-appellant.
Laura E. Duffy, United States Attorney, Bruce R. Castetter
and Christopher P. Tenorio, Assistant United States Attorneys, San Diego, California for the plaintiff-appellee.

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OPINION
WARDLAW, Circuit Judge:
Border Patrol agents watched a man climb over the
Mexico-United States border fence and followed him as he
took a taxi to Heriberto Perea-Rey’s home. An agent watched
the suspected undocumented alien walk through the gated
entrance to the home and knock on the front door. The agent
followed him through the front yard, around the side of the
house and into the carport. He found the suspect there, standing with Perea-Rey in front of a side door entrance to the
home, and detained both men until other agents arrived.
Perea-Rey refused to allow the agents to enter his house. Forgetting for a moment that the Fourth Amendment ordinarily
requires that the government obtain a warrant before it conducts a search or seizure, particularly of persons in their
homes, the agents, pointing their guns at the home, ordered
everyone outside. The individuals who emerged were later
found to be undocumented aliens.
Indicted for harboring the aliens in violation of 8 U.S.C.
§ 1324, Perea-Rey moved to suppress evidence of the aliens
as the fruit of a warrantless search and seizure. Though the
district court found that the agents entered the curtilage of
Perea-Rey’s home and that there were no exigent circumstances that might justify the failure to obtain a warrant, the
court denied the motion. Perea-Rey entered a conditional
guilty plea and filed this appeal. Because the agents physically occupied the curtilage of Perea-Rey’s home without
obtaining a warrant, and no exceptions to the warrant requirement otherwise justified the search or seizure, we reverse
Perea-Rey’s conviction and remand.
I.

BACKGROUND

On April 19, 2010, border patrol agents observed an
individual—later identified as Pedro Garcia—enter the United

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States by climbing over the United States-Mexico border
fence. Eventually, Garcia traveled by taxi to Perea-Rey’s
home at 257 Hernandez Street, Calexico, California. Border
Patrol Agent Angel Trujillo followed the taxi to Perea-Rey’s
residence. Hernandez Street runs east-west through a residential area more than a mile, as the crow flies, from the international border.1
Agent Trujillo approached Perea-Rey’s home from the west
on Hernandez Street. Parking his car to the west of the house,
Trujillo saw Garcia leave the taxi, enter the front yard through
one of two gates (the larger gate in front of the carport was
closed), and knock on the front door. Perea-Rey opened the
door, spoke to Garcia, and gestured towards the carport on the
east side of the house.2 From his vantage point to the west of
the house, Agent Trujillo could not see into the carport. Garcia walked along the front of the house, around the corner and
into the carport. Agent Trujillo followed him past the front
door and into the carport, where he confronted Perea-Rey and
Garcia, identifying himself as a border patrol agent. In
response to Perea-Rey’s question as to what was “going on,”
Agent Trujillo instructed him and Garcia to stay where they
were until other agents arrived. Agent Trujillo held Perea-Rey
and Garcia for roughly five minutes in the carport, without
explaining his presence or asking whether Perea-Rey was
willing to speak with him. When the agents arrived, they
arrested and removed Garcia from the property and surrounded the home.
1

We take judicial notice of a Google map and satellite image as a
“source[ ] whose accuracy cannot reasonably be questioned,” at least for
the purpose of determining the general location of the home. Fed. R. Evid.
201(b). See also Citizens for Peace in Space v. City of Colorado Springs,
477 F.3d 1212, 1219 n.2 (10th Cir. 2007) (taking judicial notice of online
distance calculations); cf. Boyce Motor Lines v. United States, 342 U.S.
337, 344 (1952) (“We may, of course, take judicial notice of geography.”)
(Jackson, J., dissenting).
2
We attach as an Appendix four photographs of Perea-Rey’s home
introduced as Exhibits 1 to 4 during the suppression hearing.

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Perea-Rey did not consent to the agents’ request to enter
the house. From within the carport, Agent Trujillo knocked on
the side door, identified himself as a border patrol agent and
commanded everyone to come out of the house. Four men
emerged. The agents pointed guns at the home and again
ordered everyone out; two more men emerged. Questioning
the men, the agents determined that they were undocumented
aliens, and that there was another person in the home. The
agents searched the home and discovered a seventh alien.
On May 5, 2010, Perea-Rey was indicted on three counts
of harboring undocumented aliens under 8 U.S.C. § 1324. He
moved to suppress the evidence of the aliens gathered at his
residence. After two evidentiary hearings, the district court
found that the carport was within the curtilage of Perea-Rey’s
home, but that there was no reasonable expectation of privacy
because it could be observed from the sidewalk. It therefore
held that Agent Trujillo did not violate Perea-Rey’s Fourth
Amendment rights by entering the carport, knocking on the
side door and ordering people in the house to come out. The
court denied the motion to suppress as to the first four aliens
who emerged in response to Agent Trujillo’s command. The
court granted the motion to suppress evidence and observations from within the home, including the last alien to emerge,
concluding that this evidence resulted from an unconstitutional warrantless entry of Perea-Rey’s home. Perea-Rey
entered a conditional guilty plea to one count of the indictment. This appeal ensued.3
II.

DISCUSSION

“We review de novo the denial of a motion to suppress.
Whether the exclusionary rule applies to a given case is
reviewed de novo, while the underlying factual findings are
3

The court reserved ruling on the admissibility of evidence of the two
aliens who emerged after agents pointed guns at the home. Because PereaRey thereafter pleaded guilty, the court never decided that issue.

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reviewed for clear error.” United States v. Crawford, 372 F.3d
1048, 1053 (9th Cir. 2004) (en banc) (citations omitted). Evidence that is derived directly or indirectly from an illegal
search cannot “constitute proof against the victim of the
search.” Wong Sun v. United States, 371 U.S. 471, 484
(1963).
Where the government “physically occupie[s] private property for the purpose of obtaining information,” that is a
“ ‘search’ within the meaning of the Fourth Amendment.”
United States v. Jones, 132 S. Ct. 945, 949 (2012).
“[S]earches and seizures inside a home without a warrant are
presumptively unreasonable.” Payton v. New York, 445 U.S.
573, 586 (1980). Because the curtilage is part of the home,
searches and seizures in the curtilage without a warrant are
also presumptively unreasonable. See Oliver v. United States,
466 U.S. 170, 180 (1984).4 “[T]he determination that a particular search did (or did not) occur within the curtilage must be
reviewed de novo on appeal.” United States v. Johnson, 256
F.3d 895, 913 (9th Cir. 2001) (en banc).
A.

Curtilage

[1] The district court found that the carport, which the border patrol agents occupied, was part of the curtilage of PereaRey’s home, and we agree. We examine four non-exhaustive
factors to determine whether an area is part of a home’s curtilage: “the proximity of the area claimed to be curtilage to the
home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area
is put, and the steps taken by the resident to protect the area
from observation by people passing by.” United States v.
4

That officers believe that a suspect or instrumentality of a crime may
be in a residence does not change the calculus. See Agnello v. United
States, 269 U.S. 20, 33 (1925) (“Belief, however well founded, that an
article sought is concealed in a dwelling house, furnishes no justification
for a search of that place without a warrant.”).

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Dunn, 480 U.S. 294, 307 (1987); see United States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010) (applying Dunn factors). “These factors do not yield a definite answer; rather
they guide [us] in determining whether the area is so intimately connected to the home that it should fall under the
umbrella of the Fourth Amendment’s protections.” Johnson,
256 F.3d at 911. Our analysis of the Dunn factors is aided by
the photographs of Perea-Rey’s home introduced at the suppression hearing. Agent Trujillo testified that these photographs accurately show Perea-Rey’s home and that the
lighting at the time of the April 19 arrests was “roughly about
the same.”
[2] The carport more than satisfies the proximity factor. It
is directly adjacent to and shares a common facade and wall
with the one-story stucco home. Inside the carport there is a
side door that opens directly into the home. Agent Trujillo
testified that this door is set back ten to fifteen feet into the
carport, but it appears from photographs to be closer to the
front of the carport. The area near the side door, where Trujillo confronted Perea-Rey and Garcia, is immediately adjacent
to the interior of the home.
[3] The carport also meets the enclosure factor; not only is
it enclosed by walls and a roof, but it is further enclosed by
a wrought iron fence that surrounds the property, including a
small grass front yard. The fence also encloses the driveway
entrance to the carport. The fence is five to ten feet from the
front of the house and allows a relatively unobstructed view
of the front of the home. There are two gates in the fence: a
small gate in front of the main door to the house, and a larger
gate across the front of the driveway. On the day of PereaRey’s arrest, the driveway gate was closed, blocking passersby from entering the driveway and carport.
[4] Perea-Rey also used the carport to store valuable personal belongings. The carport enclosed, among other things,
Perea-Rey’s 1989 GMC pickup truck, his valuable classic

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1970 GMC pickup truck, a rolling chest of automotive tools,
a hand truck and building supplies. The back end of the carport opens into the private, fenced-in rear yard of the home;
thus it was also protected from observation by passers-by.
[5] Perea-Rey went to some measure to protect the carport
from observation from beyond the fence line. A solid roof and
two walls shield the darkened interior from view. Examining
the photographs, the district judge concluded that the area was
so dark that he could not see the side door at all. While the
fence does not fully obscure the carport, its interior is only
readily observed from a position inside the fence line.
[6] Because each of the Dunn factors is satisfied, we agree
with the district court that the agents searched the curtilage of
Perea-Rey’s home when they entered the carport. The carport
is an area so closely connected to his home that it “fall[s]
under the same umbrella of the Fourth Amendment’s protections,” as his home. Johnson, 256 F.3d at 911.
B.

Fourth Amendment Protection

[7] Warrantless trespasses by the government into the
home or its curtilage are Fourth Amendment searches. Jones,
132. S. Ct. at 950 n.3 (“Where, as here, the Government
obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred”).
The scope of those constitutionally protected areas is rooted
in the protection of private property rights. See id. at 949.
Thus, as Justice Scalia wrote in Jones, “our Fourth Amendment jurisprudence was tied to common-law trespass until at
least the latter half of the 20th century.” Id. (citing Kyllo v.
United States, 533 U.S. 27, 31 (2001)). In Katz v. United
States, 389 U.S. 347, 351 (1967), the Court extended the protection against searches and seizures to places outside the
home where a person had a “reasonable expectation of privacy.” Jones, 132 S. Ct. at 950. In the intervening years, this
holding in Katz has created some confusion about the interac-

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tion between the reasonable expectation of privacy standard
and “the traditional pre-Katz interpretation of the Fourth
Amendment.” 1 Wayne R. LaFave, Search & Seizure § 2.3(d)
(4th ed.) (collecting and discussing cases).
[8] This confusion has persisted for decades. For example,
in United States v. Magana, 512 F.2d 1169 (9th Cir. 1975),
we stated that “ ‘a reasonable expectation of privacy,’ and not
common-law property distinctions, now controls the scope of
the Fourth Amendment.” Id. at 1170-71 (citing Katz). Relying
on Magana, we repeated this error in a recent opinion that the
government cited to the district court. See United States v.
Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), vacated, 132
S. Ct. 1533 (2012). In Pineda-Moreno, despite the government’s admission that agents had, without a warrant, entered
the curtilage of the defendant’s home to place a mobile tracking device on his car in his driveway, our court concluded that
there was no Fourth Amendment violation because PinedaMoreno had no reasonable expectation of privacy in the curtilage. Id. at 1215. The Supreme Court recently and emphatically repudiated this reasoning, explaining that “as we have
discussed, the Katz reasonable-expectation-of-privacy test has
been added to, not substituted for, the common-law trespassory test.” Jones, 132 S. Ct. at 952.
[9] After determining that the carport was part of the curtilage to the home, the district court erroneously concluded that
the agents did not violate Perea-Rey’s Fourth Amendment
rights when they occupied the carport without a warrant. The
Supreme Court has explained that the role of reasonable
expectation analysis in evaluating the constitutionality of
searches of the curtilage is only in determining the scope of
the curtilage, and not the propriety of the intrusion. See Dunn,
480 U.S. at 300 (“[T]he extent of the curtilage is determined
by factors that bear upon whether an individual reasonably
may expect that the area in question should be treated as the
home itself.”). The district court circularly reasoned that
because the agents were able to freely enter the carport,

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Perea-Rey had no reasonable expectation of privacy in the
carport. 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.
See Payton, 445 U.S. at 586 (“It is a ‘basic principle of Fourth
Amendment law’ that searches and seizures inside a home
without a warrant are presumptively unreasonable.”). No further showing was required of Perea-Rey.
[10] The district court also conflated the ability to observe
inside the curtilage with the right to enter the curtilage without a warrant. Although a warrant is not required to observe
readily visible items within the curtilage, and “officers [need
not] shield their eyes when passing by a home on public thoroughfares,” California v. Ciraolo, 476 U.S. 207, 213 (1986),
a warrant is required to enter the home. In Ciraolo, the
Supreme Court held that warrantless aerial observation of the
curtilage of a home was not a violation of the Fourth Amendment, and that such observations could form the basis for
probable cause to support a warrant to search the curtilage. Id.
at 213-14. Only after obtaining a warrant based on the observations did officers actually enter Ciraolo’s curtilage. The
ability to observe part of the curtilage or the interior of a
home does not authorize law enforcement, without a warrant,
to then enter those areas to conduct searches or seizures. See
Struckman, 603 F.3d at 747 (“[P]olice officers must either
obtain a warrant or consent to enter before arresting a person
inside a home or its curtilage or make a reasonable attempt to
ascertain that he is actually a trespasser before making the
arrest.”). The agents here could observe the curtilage from the
sidewalk and use those observations, as in Ciraolo, as the
basis for a warrant application. But, the ability to see into the
curtilage or the home does not, absent some other exception
to the warrant requirement, authorize a warrantless entry by
the government. Therefore, the district court erred by admitting the evidence simply because the officers could view the
inside of the carport from the street.

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C.

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Reasonableness of the Search

[11] Because Agent Trujillo did not have a warrant, his
entry into the carport was presumptively unreasonable in violation of Perea-Rey’s Fourth Amendment rights. “There are
two general exceptions to the warrant requirement for home
searches: exigency and emergency.” United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005). The district court
did not clearly err when it found that there were no exigent
circumstances justifying the search and the government does
not challenge this finding on appeal.
Instead, the government invokes the so-called “knock and
talk” exception to the warrant requirement to justify Agent
Trujillo’s incursion into the curtilage. We have held that
“[l]aw enforcement officers may encroach upon the curtilage
of a home for the purpose of asking questions of the occupants.” United States v. Hammett, 236 F.3d 1054, 1059 (9th
Cir. 2001). This doctrine has its origins in Davis v. United
States, 327 F.2d 301, 305 (9th Cir. 1964). In Davis, plainclothes police officers visited a home simply “for the purpose
of talking to Davis.” Id. at 303. A child let them into the
house, where they observed marijuana plants; this led to a further search, arrest and prosecution. Id. at 302. We relied on
the subjective intent of the officers when they knocked on the
door to conclude that the officers did not violate Davis’s
rights. Id. at 303 (“[I]t was not their intention to arrest the
defendant nor to search the premises.”).
Four decades later, in Hammett, which presented similar
circumstances, we also relied on the subjective intent of the
officers to conclude that they did not violate Hammett’s
Fourth Amendment rights. In Hammett, officers flew in a helicopter over a home in an isolated area of Hawaii. 236 F.3d
at 1056. They observed what appeared to be marijuana plants
in pots through the translucent plastic roof of the home. Id.
The officers landed the helicopter in a nearby field and
approached the home. Id. When their knocks on one door

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were not answered, the officers circled the home and eventually observed marijuana through a gap in its walls. Id. at
1056-57. The police obtained a warrant to enter the home
based on those observations. Id. at 1057. The Hammett court
held that the initial approach to the home was a permissible
“knock and talk,” id. at 1059, and that “an officer may, in
good faith, move away from the front door when seeking to
contact the occupants of a residence,” id. at 1060.
Although it has not addressed the knock and talk exception,
the Supreme Court has unequivocally disallowed reliance on
the good faith or subjective beliefs of officers as part of the
analysis of whether they violated the Fourth Amendment. See
Kentucky v. King, 131 S. Ct. 1849, 1859 (2011). In King, the
Court rejected an exigent circumstances test that looked to
bad faith of police officers in creating exigent circumstances,
reasoning that only objective factors lend themselves to analysis under the Fourth Amendment’s reasonableness standard.
Id. (“‘Our cases have repeatedly rejected’ a subjective
approach, asking only whether ‘the circumstances viewed
objectively, justify the action.’ ”) (quoting Brigham City v.
Stuart, 547 U.S. 398, 404 (2006)). “The subjective intent of
the law enforcement officer is irrelevant in determining
whether that officer’s actions violate the Fourth Amendment.”
Bond v. United States, 529 U.S. 334, 339 n.2 (2000).
[12] The Supreme Court’s rejection of good faith, subjective intent tests to gauge Fourth Amendment violations
implicitly overrules some of the reasoning of cases like Davis
and Hammett, which turned in part on the officer’s subjective
intent. Accordingly, we can no longer rely on the good faith
belief of law enforcement officers in our analysis of whether
an incursion into the curtilage for a knock and talk violates
the Fourth Amendment. See Miller v. Gammie, 335 F.3d 889,
900 (9th Cir. 2003) (en banc) (We are “bound by the intervening higher authority and [must] reject the prior opinion of this
court as having been effectively overruled”). To be clear, it
remains permissible for officers to approach a home to con-

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tact 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.
[13] Officers conducting a knock and talk also need not
approach only a specific door if there are multiple doors
accessible to the public. “[T]he law does not require an officer
to determine which door most closely approximates the Platonic form of ‘main entrance’ and then, after successfully
completing this metaphysical inquiry, approach only that
door. An officer [initiating] a ‘knock and talk’ visit may
approach any part of the building . . . where uninvited visitors
could be expected.” United States v. Titemore, 335 F. Supp.
2d 502, 505-06 (D. Vt. 2004), aff’d, 437 F.3d 251 (2d Cir.
2006). However, once an attempt to initiate a consensual
encounter with the occupants of a home fails, “the officers
should end the knock and talk and change their strategy by
retreating cautiously, seeking a search warrant, or conducting
further surveillance.” United States v. Troop, 514 F.3d 405,
410 (5th Cir. 2008) (holding that border patrol agents violated
the Fourth Amendment when they conducted a warrantless
search of the curtilage after there was no response to a knock
and talk attempt) (internal quotation omitted).
[14] Here, Agent Trujillo watched Garcia approach the
house from a vantage point where he was unable to see the
side door entrance in the carport. Garcia knocked on the front
door, which was visible to Agent Trujillo. Perea-Rey then signaled Garcia to walk around the house and into the carport
area. Therefore Garcia was not a trespasser. Agent Trujillo, in
contrast, did not enter the yard and knock on the front door
to initiate a consensual contact with Perea-Rey. Agent Trujillo
admitted at the evidentiary hearing that he was not invited
into the carport, but that he simply followed Garcia onto the
property, bypassing the front door and walking around the
side of the house into the carport. It was not objectively reasonable as part of a knock and talk for Agent Trujillo to

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bypass the front door, which he had seen Perea-Rey open in
response to a knock by Garcia, and intrude into an area of the
curtilage where uninvited visitors would not be expected to
appear.
[15] The events that followed after Agent Trujillo entered
the carport further undermine the government’s argument that
he merely attempted a consensual knock and talk. When
Perea-Rey saw Agent Trujillo and asked him what was “going
on,” Trujillo did not answer, and instead instructed Perea-Rey
to wait until backup arrived. Perea-Rey never had an opportunity to simply ignore a knock on the door to his home by
police. See Troop, 514 F.3d at 410 (“It is hardly surprising
that the aliens chose not to answer the door, given that Border
Patrol agents were waiting to arrest them on the other side.”).
Agent Trujillo did not seek Perea-Rey’s consent to enter the
property or even to speak with him. He simply identified himself and ordered Perea-Rey not to move. We conclude that
Trujillo did not engage in a consensual “knock and talk.”
Rather, Trujillo’s initial detention of Perea-Rey was, at a bare
minimum, a Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968).
We have held, however, that “the Terry exception to the warrant requirement does not apply to in-home searches and seizures.” Struckman, 603 F.3d at 738.5 Therefore, by
5

Our statement in United States v. Crapser, 472 F.3d 1141, 1148 (9th
Cir. 2007), that “[i]f an arrest in the doorway is allowed, certainly the
lesser intrusion of a Terry stop in the hallway is also permissible” is not
inconsistent with our holding. The Terry stop there occurred in a public
area of a motel, and not in the curtilage of a home. United States v. Vaneaton, 49 F.3d 1423, 1425 (9th Cir. 1995), the case relied on by the Crapser
court, also involved an arrest at the threshold of a motel room. Further, in
both Crapser and Vaneaton, the suspects knowingly and voluntarily
exposed themselves to police officers. Unlike a private yard or carport,
“tenants in an apartment building [or motel] have no justified expectation
of privacy as to a portion of the home which all residents and visitors must
use to enter, the common yard open to the public or the parking lot open
to all users of the apartment building.” 1 Wayne R. LaFave, Search & Seizure § 2.3(f) (4th ed.) (quotations omitted). The encounter here was neither consensual nor in a public area of a motel or apartment building.

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trespassing on the curtilage and detaining Perea-Rey, Agent
Trujillo violated Perea-Rey’s Fourth Amendment rights.
[16] The government relies exclusively on the knock and
talk exception to excuse the warrantless entry into PereaRey’s curtilage. An expansion of that exception to allow for
Terry stops or searches and seizures within the curtilage is
wholly inconsistent with Oliver and Dunn. At most, the knock
and talk exception authorizes officers to enter the curtilage to
initiate a consensual conversation with the residents of the
home. 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. We hold that the warrantless
incursion into the curtilage of Perea-Rey’s home by border
patrol agents and the resulting searches and seizures violated
Perea-Rey’s Fourth Amendment rights. The district court’s
denial of Perea-Rey’s motion to suppress the fruits of Agent
Trujillo’s warrantless search was reversible error. See Wong
Sun, 371 U.S. at 484.
III.

CONCLUSION

For the foregoing reasons, we REVERSE the judgment
and REMAND.

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APPENDIX

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Exhibit 1

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UNITED STATES v. PEREA-REY

Exhibit 2

Page: 18 of 20

Case: 10-50632

05/31/2012

ID: 8196426

DktEntry: 25-1

UNITED STATES v. PEREA-REY

Exhibit 3

Page: 19 of 20

6049

Case: 10-50632

6050

05/31/2012

ID: 8196426

DktEntry: 25-1

UNITED STATES v. PEREA-REY

Exhibit 4

Page: 20 of 20