Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding D.C. No. 3:10-cr-01707- LAB-1
The opinion of the court was delivered by: Wardlaw, Circuit Judge:
Argued and Submitted October 13, 2011-Pasadena, California
Before: Alfred T. Goodwin and Kim McLane Wardlaw, Circuit Judges, and William K. Sessions III, District Judge.*fn1
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.
On April 19, 2010, border patrol agents observed an individual-later identified as Pedro Garcia-enter the United 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.*fn2
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.*fn3 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.
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 ...