Legal Concepts and Case Citation 

Tran & Chong v. United States (9th Cir. Aug. 14, 2024) 112 F.4th 848 

Rule:  

The Sixth Amendment guarantees the right to the effective assistance of counsel in all criminal cases. Counsel’s ineffectiveness is shown where the attorney’s performance was constitutionally deficient and when such ineffectiveness prejudiced the defendant.  

Law enforcement’s warrantless entry into the curtilage of one’s home for the purpose of conducting a search violates the Fourth Amendment. A non-resident lacks the necessary standing to challenge the illegal search of a residence. 

Facts 

Defendant Tac Tran, a state parolee, was believed by homeland security investigators to be staying at the home of co-defendant Harson Chong in the suburbs of Los Angeles. This information came from a wiretap recording of a telephone conversation between Tac Tran and Hao Tang, a known drug distributor who was the target of a Department of Homeland Security investigation. Those phone calls led authorities to believe that Tac Tran, in his association with Hoa Tang, had violated his parole conditions by engaging in criminal activity. Tac Tran, as it was later discovered, is Chong’s uncle and was only visiting Chong when the wiretaps occurred. Normally, Chong lived in the house with his girlfriend, his sister, his sister’s husband, and their infant son.  

As a result of the information gleaned from the wiretaps, deputies of the Los Angeles County Sheriff’s Department set up surveillance outside Chong’s house in July 2012. Given the house’s location at the end of a cul-de-sac, it was noted that the house had a short driveway, no more than one and a half car lengths from the sidewalk to the garage door. The garage entrance, facing the street, was fully exposed from the sidewalk. There was no fencing, vegetation, or other permanent obstruction or barrier between the sidewalk and the garage entrance.  

Around 9 p.m., the deputies observed Tran arrive at the house and walk directly into the house via the front door without waiting for someone to open it for him. It was unknown whether he used a key. Shortly afterward, the garage door opened. Based on what the deputies knew at the time, and still assuming that Tac Tran lived there, they believed that they could legally conduct a warrantless parole search of the residence.  

The deputies therefore approached the house by entering the next-door neighbor’s yard and hopping over the retaining wall and bushes on the left side of the property line. They then crossed the front of Chong’s house, staying close to a white lattice fence that partially shielded the front door, and approached the open garage by walking between the left-side garage doorframe and a car parked in the driveway. As the first deputy got to the driveway, within a foot from the open garage door, he observed Tran at a coffee table inside the garage with two other men. On seeing the deputy, Tran appeared startled, immediately tossing a baggie of what was determined to be methamphetamine onto the table in front of him. The deputies subsequently detained Tran and seized the baggie.  

Deputies conducted a protective sweep of the house, during which a large amount of cash was found in the living room. The house was secured while a search warrant was obtained. Upon executing the warrant, deputies seized large amounts of ecstasy, methamphetamine, cocaine and marijuana, along with three guns, ammunition and digital scales.  

Tac Tran and Harson Chong were later charged in federal court with drug and gun offenses. Both filed motions to suppress the evidence recovered from the home. Tac Tran  argued in his declaration that he did not live there and alleged that the deputies did not have probable cause to believe that he did. In his own declaration, Chong asserted that Tac Tran “does not live with me,” but that he “visit[s] me from time to time.” Neither declaration discussed whether Tran was staying at the house overnight that evening.  

The district court judge denied the suppression motions, initially holding that the deputies had probable cause to believe that Tran lived there and that the entry into the garage and the protective sweep of the house were justified by the fact that Tran was on parole and therefore subject to search and seizure conditions. Pending trial, however, the Ninth Circuit published the case of United States v. Grandberry (9th Cir. 2013) 730 F.3rd 968, which, in effect, tightened up the “probable cause” rules a bit, holding that for parole Fourth Amendment waiver searches, “probable cause as to (a) residence exists if an officer of ‘reasonable caution’ would believe, ‘based on the totality of [the] circumstances,’ that the parolee lives at a particular residence.”  

But the Grandberry court also emphasized that the probable cause rules for parole searches are “a ‘relatively stringent’ standard” that requires “‘strong evidence’ that the parolee resides at the address.” (Id., at p. 975-976.)  

The district court reconsidered the defendants’ motions to suppress in light of Grandberry, holding that the deputies in Tran’s situation did not have the necessary “strong evidence” in that they had not adequately surveilled Chong’s home and thus could not point to sufficient facts to demonstrate probable cause to believe that Tran lived there. However, the district court denied the defendants’ motions to suppress anyway under the theory that the sheriff’s deputy observed Tran discard the drugs in “plain view” and that as a result, the seizure of the baggie and subsequent search of the garage was justified by exigent circumstances, i.e., needing to secure the drugs.  

Chong and Tran were both found guilty on all charges in the subsequent trial. They both appealed. The Ninth Circuit affirmed on direct appeal. However, the defendants then moved for post-conviction relief in the trial court under 28 U.S.C. § 2255 (habeas corpus), alleging that their respective defense attorneys were constitutionally “ineffective,” a Sixth Amendment issue, for having failed to assert that the deputies trespassed onto the curtilage of Chong’s home, a Fourth Amendment issue for entering the area immediately surrounding the home without legal justification.  

The district court ruled that due to the lack of physical boundaries in front of Chong’s house, the deputies did not enter the curtilage. As a result, the court found that their respective attorneys were not constitutionally ineffective for not having litigated this issue and denied their post-conviction relief motions. Both defendants appealed this ruling. 

Held 

The Ninth Circuit Court of Appeals reversed as to Chong, but affirmed as to Tran. The issue on appeal was whether the defendants’ respective attorneys were constitutionally “ineffective” for having failed to file motions to suppress the evidence recovered from Chong’s house, including the baggie of meth Tran got caught with in the garage. In reaching its conclusions on this issue, the court first reviewed the law on one’s Sixth Amendment right to have competent counsel.  

(1) Ineffective Assistance of Counsel: The law on this issue is well-settled. For an ineffective assistance of counsel claim to succeed, it is the defendant’s burden to show two things. First, he must show that his counsel’s performance was constitutionally deficient, meaning that it fell below an objective standard of reasonableness. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) To prove this element, the defendant must show that “no competent attorney would think a motion to suppress would have failed.” (Premo v. Moore (2011) 562 U.S. 115, 124.) Second, the defendant must show that his attorney’s deficient performance prejudiced his defense. (Strickland v. Washington, supra, at 687-688.) To show prejudice, the defendant must prove that had his attorney filed a motion to suppress, he would have been successful. With these standards in mind, the court moved onto the search and seizure issues.   

(2) Fourth Amendment Rights as Related to the Curtilage of One’s Home: In this case, the Fourth Amendment issue was (1) whether the officers involved violated the constitutional rules related to the privacy rights within the curtilage of Chong’s home, and (2) whether the respective defendants had standing to raise this issue.  

Obviously, therefore, whether the two defendants’ attorneys were legally incompetent for having failed to spot the “curtilage” issue, and attempt to litigate it before trial, turns on whether the sheriff’s deputy did in fact violate the Fourth Amendment by standing within the curtilage of Chong’s home when he saw Tran throw the drugs, providing the necessary exigency justifying the entry into the garage, and if he was within the curtilage, his reasons for approaching the home to get into that position.  

Also, the court had to consider whether one or both of the defendants had the necessary “standing” to challenge the constitutionality of the officers’ actions. In discussing these issues, the court initially concluded that the deputy was in fact within the curtilage of Chong’s home and that he had no license or other right to be there. As such, the deputy violated at least Chong’s Fourth Amendment rights, as it was his home. In reaching this conclusion, the court reviewed the law as it relates to the curtilage of one’s home in the landmark U.S. Supreme Court decision of Florida v. Jardines (2013) 569 U.S. 1.  

In Jardines, police received a tip that marijuana was being grown at the defendant’s home. Two officers and a drug-sniffing dog went to defendant’s home and approached the front porch. Before even getting to the porch, the dog started to react to an odor. The officers and the dog eventually went onto the porch where the dog sniffed at the base of the front door, alerting to the smell of narcotics. Based on this, the officers retreated to their office and applied for a search warrant, the execution of which resulted in the discovery of marijuana inside the home.  

The High Court eventually held that for the officers to walk onto the defendant’s porch with the drug-sniffing dog violated the Fourth Amendment. Applying what has become known as the “physical trespass test” (also known as the “common-law trespassory test”), the court first noted that, “(a)t the very core” of the Fourth Amendment “stands the right of a man (or woman) to retreat into his (or her) own home and there be free from unreasonable governmental intrusion.” (Citing Silverman v. United States (1961) 365 U.S. 505, 511; which in turn cites the English Common Law at Entick v. Carrington (K.B. 1765) 95 Eng. Rep. 807.)  

Noting that “this protection extends beyond the walls of the home,” the court has held that, “the curtilage (of one’s home) is treated as ‘part of the home itself for Fourth Amendment purposes.’” (Collins v. Virginia (2018) 584 U.S. 586, 592.) “(T)he home and its ‘immediately surrounding’ areas are so highly valued that they are afforded special constitutional protection...That’s because the curtilage is linked to the ‘physical and psychological’ protection of the family and personal privacy.’”  

Similarly, under what has become known as “the reasonable-expectation-of-privacy test,” a “search occurs when the ‘government violates a subjective expectation of privacy that society recognizes as reasonable.” (United States v. Esqueda (9th Cir. 2023) 88 F.4th 818, 823, quoting Kyllo v. United States (2001) 533 U.S. 27, 33.)  

The tests exist side by side and either test can be used to determine whether a search took place. If either test is satisfied, “[a]bsent a warrant or consent or exigent circumstances,” the search is unreasonable under the Fourth Amendment. (Mendez v. County of Los Angeles (9th Cir. 2018) 897 F.3rd 1067, 1076.)  

With these basic rules in mind, the court was tasked in this case with determining whether the deputy, in reaching the spot on defendant’s driveway in front and within a foot of the garage, made a warrantless intrusion into the curtilage of Chong’s home. At common law, it was noted that curtilage was defined “by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” (Oliver v. United States (1884) 466 U.S. 170, 180.)  

The Supreme Court in United States v. Dunn (1984) 480 U.S. 294, at pg. 301, listed four factors to consider in determining the reach of the 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.”  

The Supreme Court in Jardines used these factors in finding that the front porch of one’s home comes within the curtilage of that home. In looking at both the “particular area” intruded on and the visitor’s “specific purpose,” and while acknowledging that casual visitors have an “implicit license” to “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave” (Florida v. Jardines, supra, at pg. 8.), the court held that “no customary invitation” exists to “introduc[e] a trained police dog to explore the area around the home in hopes of discovering incriminating evidence.” (Id., at 9.) The Jardine court concluded that under the circumstances, “the background social norms that invite a visitor to the front door do not invite him there to conduct a search.” (Id.) In Chong’s situation, it was clear that the officers did not approach Chong’s garage for the purpose of merely getting the occupant’s attention. This is evidenced by the manner in which that approach was made: coming over a retaining wall separating the properties and through some bushes, hugging close to the front of the house to get to the garage for the purpose of, in effect, sneaking up on the occupants of the garage. As the first deputy peered into the garage, he was within a foot of the garage’s front edge, an area that was clearly within the curtilage of Chong’s home.  

Based on this set of circumstances, the court had no difficulty concluding that the deputy’s entry onto the defendant’s driveway, within the curtilage, violated the Fourth Amendment under both the common-law trespassory test and the reasonable expectation of privacy test. As such, this was an issue that any reasonably competent attorney should have recognized as a potential Fourth Amendment violation. Chong’s attorney, having failed to do so, violated Chong’s Sixth Amendment rights, requiring a reversal of his conviction.  

Interestingly enough, the court also held that Tran’s attorney was not incompetent for failing to raise this issue. That’s because there was no proof presented to the effect that Tran was anything other than a casual visitor in Chong’s house. No proof had been offered to show that Tran had at least stayed the night in the house. To have standing to challenge an illegal search, “a defendant must show that he personally had a property interest protected by the Fourth Amendment that was interfered with.” (United States v. Fisher (9th Cir. 2022) 56 F.4th 673, 686.) The court held that Tran, as a mere visitor, lacked that property interest: “He did not own the home. He did not pay rent there.” And despite opening the door to the house without being let in, there was no evidence that he lived there. To the contrary, Chong himself stated that Tran “does not live with me” and only “visit[s] me from time to time.” As a result, Tran lacked the necessary legal standing to challenge the search. Tran’s attorney, therefore, was not shown to be incompetent for having failed to raise this issue.  

(3) Good Faith and the Parole Exception: If you remember, Tran was a parolee and as such was subject to search and seizure conditions without the necessity of a warrant. (15 Cal. Code Regs. § 2511.) However, for Tran’s parole-search exception to apply, “law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched.” (United States v. Grandberry, supra, at 973.) As noted above, there was insufficient evidence (no “probable cause”) to show that Tran lived at the residence. The government argued, however, that the officers acted in reliance on California case law which requires less than probable cause to believe that the defendant parolee lives in the home being searched. Specifically, People v. Downey (2011) 198 Cal.App.4th 652, at pg. 662, held that, “[A]n officer...conducting a probation or parole search may enter a dwelling if he or she has only a ‘reasonable belief’ (Italics added), falling short of probable cause to believe, that the parolee is a resident of the house to be searched.”  

The Court held, however, that even if the Downey standard was to apply, the government’s argument still failed. Under the facts of this case, the court held that the evidence supporting the argument that Tran lived at the residence was nothing more than “meager, consisting primarily of the federal agents’ assumptions and the deputies’ observations of Tran arriving at the home the night of the raid” and merely entering the front door without knocking. This, per the court, was insufficient to constitute even a reasonable suspicion to believe that Tran lived in Chong’s residence. Lastly, the fact that the search in this case occurred prior to the Jardines decision was irrelevant. As noted by the court, “even before Jardines, authorities already showed that the ‘area immediately surrounding the home’ was protected from search, absent consent, a license, and so on.” (Citing See Oliver v. United States (1984) 466 U.S. 170, at p. 178.)Oliver v. United States (1984) 466 U.S. 170, at p. 178.) 

Conclusion 

As a result, the Ninth Circuit ruled that Chong’s conviction must be reversed while Tran’s was upheld. 

Author's Notes: 

This case decision is longer and more complicated than it has to be. The bottom line, however, is that an officer cannot enter the curtilage of one’s home for the purpose of contacting a resident and conducting a search without a warrant. Where that line marking the curtilage of one’s home might be is a bit of a judgment call, although it is typically pretty obvious when we’re talking about being on the defendant’s driveway within a foot of the front of the garage.  

But for when it’s not so obvious, the general rule under the common law is as follows: The curtilage is that “area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’” (Oliver v. United States, supra, at p. 180.) Also: “The curtilage of a home extends to those areas immediately proximate to a dwelling, which ‘harbors those intimate activities associated with domestic life and the privacies of the home.’” (United States v. Dunn, supra, at p 301, fn. 4.)  

When in doubt, err on the side of caution and assume you’re in the curtilage. This, by the way, does not make illegal to do what’s commonly referred to as a “knock and talk,” where you approach the front door and knock for the purpose of getting the attention of the occupants to merely talk with them. (E.g., see People v. Shuey (1973) 13 Cal.App.3rd 835; United States v. Driver (9th Cir. 1985) 776 F.2nd 807; and Kentucky v. King (2011) 563 U.S. 452, 459-472.) It is only when you sneak into the curtilage, as occurred in this case, or enter the curtilage to conduct a warrantless search, as occurred in Jardines, that we’re going to have a problem.  

Where you already have probable cause to arrest and/or search before you get there, it is strongly suggested that you get a warrant before attempting to make contact. So what could the officers in this case have done differently? The curtilage issue would have gone away had the officers merely walked straight up the driveway from the street, as opposed to sneaking around the edge of the house while hoping to avoid being seen. A little less safe, perhaps, but you can prepare for that as you approach the suspects. Had the officers in this case done that, the government could have made the argument that the officers were doing no more than is allowed in the typical knock and talk situation. Tran would have likely made the same furtive movement of tossing the drugs upon seeing the officers coming up the driveway, before or as they entered the curtilage, giving them probable cause and an exigency to continue into the garage to seize the baggie and secure the scene. End of issue.