28 A.3d 720
Md. Ct. Spec. App.2011Background
- McGurk, overnight guest at 608 Philadelphia Ave, Ocean City, on second-floor balcony when arrested around 3:15 a.m.
- Officer Valerio, a uniformed OC officer, uninvitedly ascended the balcony after smelling burnt marijuana and began questioning occupants.
- Valerio’s ascent led to discovering a marijuana roach outside; Villagra admitted smoking and discarded the roach; he was arrested.
- Officer Kelley arrived, smelled marijuana on McGurk, retrieved a prescription bottle revealing marijuana, and McGurk was arrested; a later strip-search-like procedure yielded cocaine from her person.
- McGurk moved to suppress the evidence; bench trial on cocaine possession with intent to distribute proceeded; suppression denial led to appeal; court ultimately vacated judgment and remanded for new trial with costs to Worcester County.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the balcony was a constitutionally protected curtilage | McGurk had an overnight-guest privacy expectation | State contends no standing or not curtilage | Balcony is curtilage; McGurk had privacy expectation |
| Whether McGurk had standing to challenge the entry | Overnight guest status gives standing | Standing not shown; waiver issue | State waived standing defense; McGurk has standing to challenge entry |
| Whether the second-story balcony was within the curtilage analysis under Dunn factors | Balcony is intimate, private; part of home | Balcony not part of curtilage | Balcony part of curtilage; private space for Fourth Amendment purposes |
| Whether exigent circumstances justified the balcony entry | No exigency known to police before entry | Odor suggested imminent destruction of evidence | Exigent circumstances not established; entry unlawful |
| Whether fruits of the unlawful entry must be suppressed | All evidence tainted by unlawful entry | Some evidence independent of entry | Suppression of all evidence seized from purse/person; remand for new trial |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (1967) (two-part test for expectation of privacy; protects people, not places)
- Oliver v. United States, 466 U.S. 170 (1984) (curtilage protection extends to area immediately surrounding home)
- United States v. Dunn, 480 U.S. 294 (1987) (four-factor inquiry for curtilage)
- Brown v. State, 75 Md.App. 22 (1988) (front-porch privacy expectations)
- Robinson v. Commonwealth, 47 Va.App. 533; 625 S.E.2d 651 (2006) (implied consent to enter curtilage; scope of consent factors)
- Gorman v. State, 168 Md.App. 412; 897 A.2d 242 (2006) (exigent circumstances not created by police; balancing factors)
- Dunnuck v. State, 367 Md. 198; 786 A.2d 695 (2001) (police-created exigency invalidates warrantless entry)
- State v. Neanover, 812 N.E.2d 127 (Ind.App. 2004) (subjective privacy interest in landing area near residence)
- Minnesota v. Olson, 495 U.S. 91 (1990) (overnight guest has privacy rights in host's home)