Opposition Brief — Ronell Moses, Jr., Petitioner v. United States

Supreme Court briefDec 3, 2025

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No. 25-399

In the Supreme Court of the United States

RONELL MOSES, JR., PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

MATTHEW R. GALEOTTI

Acting Assistant

Attorney General

DAVID M. LIEBERMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether a portion of the driveway several dozen feet

away from petitioner’s garage constituted curtilage of

petitioner’s home.

(I)

TABLE OF CONTENTS

Page

Opinions below ................................................................................ 1

Jurisdiction ...................................................................................... 1

Statement ......................................................................................... 1

Argument ......................................................................................... 7

Conclusion ...................................................................................... 17

TABLE OF AUTHORITIES

Cases:

Atwater v. City of Lago Vista, 532 U.S. 318 (2001)............. 13

Boyd v. United States, 116 U.S. 616 (1886)............................ 8

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

cert. denied, 145 S. Ct. 1218 (2025) ...................................... 9

Collins v. Virginia, 584 U.S. 586 (2018) ......................... 3, 8, 9

Daughenbaugh v. City of Tiffin,

150 F.3d 594 (6th Cir. 1998) ................................................ 12

Davis v. United States, 564 U.S. 229 (2011) .................. 16, 17

Florida v. Jardines, 569 U.S. 1 (2013) .......................... 3, 8, 17

Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,

336 U.S. 271 (1949) ............................................................... 11

Hardin v. State, 148 N.E.3d 932 (Ind. 2020),

cert. denied, 141 S. Ct. 2468 (2021) ................................ 9, 10

Herring v. United States, 555 U.S. 135 (2009) .................... 16

Hudson v. Michigan, 547 U.S. 586 (2006)............................ 16

Kyles v. Whitley, 514 U.S. 419 (1995) ................................... 11

Landers v. State, 301 S.E.2d 633 (Ga. 1983) ........................ 10

New York v. Belton, 453 U.S. 454 (1981) .............................. 13

Peacock v. State, 878 S.E.2d 247 (Ga. 2022) ......................... 10

State v. Bovat, 224 A.3d 103 (Vt. 2019), cert. denied,

141 S. Ct. 22 (2020), overruled by State v. Calabrese, 268 A.3d 565 (Vt. 2021).............................................. 10

(III)

Cases—Continued:

Page

State v. Calabrese, 268 A.3d 565 (Vt. 2021) ............................ 9

State v. Chute, 908 N.W.2d 578 (Minn.), cert. denied,

586 U.S. 981 (2018) ........................................................... 9, 11

State v. Pinkham, 679 A.2d 589 (N.H. 1996) ....................... 11

Supervisors v. Stanley, 105 U.S. 305 (1882) ........................ 14

United States v. Alexander,

888 F.3d 628 (2d Cir. 2018) .................................................. 14

United States v. Beene, 818 F.3d 157 (5th Cir.),

cert. denied, 580 U.S. 850 (2016)......................................... 11

United States v. Brown,

510 F.3d 57 (1st Cir. 2007) ................................................... 15

United States v. Coleman,

909 F.3d 925 (8th Cir. 2018) ................................................ 10

United States v. Coleman, 923 F.3d 450

(6th Cir. 2019), cert. denied, 589 U.S. 1083 (2019) ........... 11

United States v. Cousins, 455 F.3d 1116 (10th Cir.),

cert. denied, 549 U.S. 866, and 549 U.S. 1070 (2006) ....... 15

United States v. Depew, 8 F.3d 1424 (9th Cir. 1993),

overruled on other grounds by United States v.

Johnson, 256 F.3d 895 (9th Cir. 2001) ......................... 14, 15

United States v. Diehl, 276 F.3d 32 (1st Cir.),

cert. denied, 537 U.S. 834 (2002)......................................... 14

United States v. Dunn,

480 U.S. 294 (1987) ................................... 3, 4, 7, 8, 12-15, 17

United States v. Gerard, 362 F.3d 484 (8th Cir.),

cert. denied, 543 U.S. 928 (2004)................................... 12, 13

United States v. Johnston, 268 U.S. 220 (1925) .................. 11

United States v. Leon, 468 U.S. 897 (1984) .......................... 16

United States v. Reilly, 76 F.3d 1271 (2d Cir. 1996) .......... 14

United States v. Ronquillo,

94 F.4th 1169 (10th Cir. 2024) ............................................. 14

United States v. Wells, 648 F.3d 671 (8th Cir. 2011) ...... 9, 11

Constitution, statute, and rule:

U.S. Const. Amend. IV ....................................... 3, 7, 13-15, 17

18 U.S.C. 922(g)(1)................................................................. 1, 3

Sup. Ct. R. 10 ........................................................................... 11

In the Supreme Court of the United States

No. 25-399

RONELL MOSES, JR., PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-42a)

is reported at 142 F.4th 126. The opinion of the district

court (Pet. App. 43a-59a) is available at 2023 WL 3408574.

JURISDICTION

The judgment of the court of appeals was entered on

July 3, 2025. The petition for a writ of certiorari was

filed on October 1, 2025. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District

Court for the Western District of Pennsylvania, petitioner was convicted on one count of possessing a firearm and ammunition following a felony conviction, in violation of 18 U.S.C. 922(g)(1). Judgment 1. He was sentenced to 40 months of imprisonment, to be followed by

(1)

three years of supervised release. Judgment 2-3. The

court of appeals affirmed. Pet. App. 1a-42a.

1. On April 23, 2020, a police officer was patrolling

Penn Hills, Pennsylvania, with his windows rolled down,

when petitioner drove past while traveling in the opposite direction. Pet. App. 2a, 44a. As the cars passed one

another, the officer smelled burned marijuana. Id. at

2a. The officer made a U-turn, caught up with petitioner’s car, and continued to smell marijuana. Ibid.

Petitioner reached his home and began to pull the car

into the driveway. Pet. App. 2a. The officer activated

his vehicle’s lights “seconds before the [car] turned into

the driveway,” but after petitioner had activated his

turn signal. Id. at 45a. Petitioner parked about 20 feet

into a 70-foot driveway, several dozen feet from the garage. Id. at 8a. The driveway “was not secluded, but

plainly visible from the street” and “connected to the

public street.” Id. at 8a-9a; see ibid. (body-camera photographs).

The officer parked his patrol vehicle at the driveway’s entrance and walked up the driveway to petitioner’s car. Pet. App. 2a, 46a. He could smell the marijuana as he approached the car, and the smell became

stronger when petitioner rolled down the car’s window.

Id. at 46a. The officer also saw a burning marijuana cigarette in the center console cup holder. Ibid. Upon

questioning by the officer, petitioner provided his license and a medical marijuana card, and then produced

a bag of marijuana. Id. at 18a. Petitioner denied having

any other drugs or firearms in the car. Id. at 46a-47a.

The exchange occurred as the officer stood 30 to 40

feet in front of petitioner’s home in an exposed area of

the driveway, on the path that led from the public street

to the front door. Pet. App. 9a. The officer subse-

quently searched petitioner’s car and found a loaded,

stolen pistol in the center console. Id. at 47a. He then

arrested petitioner. Ibid.

2. A grand jury in the Western District of Pennsylvania returned an indictment charging petitioner with

one count of possessing a firearm and ammunition following a felony conviction, in violation of 18 U.S.C.

922(g)(1). Indictment 1. Petitioner moved to suppress

the firearm and ammunition, arguing that the officer

had unlawfully invaded an area protected by the Fourth

Amendment. Pet. App. 43a. The district court denied

the motion. Id. at 43a-59a.

The district court stated that the Fourth Amendment prohibits the government from “violat[ing] a person’s reasonable expectation of privacy or physically intrud[ing] on the Fourth Amendment’s protected areas

to gather information.” Pet. App. 49a-50a (citation and

internal quotation marks omitted). And the court recognized that “ ‘the home’ ” and its “curtilage—the area

‘immediately surrounding and associated with the

home,’ ” receive “heightened Fourth Amendment[] protection.” Id. at 51a (quoting Florida v. Jardines, 569

U.S. 1, 6 (2013), and Collins v. Virginia, 584 U.S. 586,

592 (2018)).

The district court explained that “[t]he question of

the extent of curtilage is essentially factual.” Pet. App.

51a. And in assessing the relevant facts, the court

looked to the four factors articulated in United States v.

Dunn, 480 U.S. 294, 301 (1987): “[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.” Pet. App.

51a (quoting Dunn, 480 U.S. at 301).

After examining the police officer’s body-camera

footage of the search, the district court found that “the

portion of the driveway at issue was not intimately

linked to the home and, therefore, not curtilage.” Pet.

App. 56a; see id. at 52a-53a. With respect to the first

Dunn factor, the court took the view that “the proximity

of the area” where petitioner had parked his car favored

a curtilage finding, noting that it “was approximately

twenty feet into the driveway” and “past the stairs to

the walkway leading to the front porch.” Id. at 53a. But

the court found that the second, “enclosure,” factor

weighed against a curtilage finding, because there was

“[n]o evidence * * * that the [car] was within an enclosure.” Id. at 54a. Instead, “[t]he area of the driveway

where the [car] was parked was readily visible from the

street and from neighbors’ yards.” Ibid.

The district court also found that the third Dunn

factor—“the nature of the area’s usage”—weighed

against a curtilage finding. Pet. App. 54a-55a. The

court noted the absence of “ ‘no trespass’ ” or “ ‘private

property’ ” signs and observed that “[a] visitor approaching the front door would have to walk up the

driveway, walk up three to four stairs, follow a fenced

pathway that turns to the right, and then walk up eight

steps to the front porch” to reach the front door. Id. at

55a (citation omitted). The court further noted that the

area was “devoid of playground equipment, toys, outdoor furniture, or a grill.” Ibid. And the court reasoned

that petitioner’s evidence of usage—specifically, testimony regarding family gatherings on the driveway once

or twice a month—“does not transform the visible and

accessible driveway into an extension of the daily intimate activities of the home.” Ibid.

Finally, with respect to the fourth Dunn factor, the

district court found that “[n]othing about the driveway

area precluded curious neighbors, members of the public, or government agents” from entering the property.

Pet. App. 56a. It emphasized that “the area is * * *

clearly visible to a person standing on the public street”

and “[t]here was no * * * barrier to an individual entering the front yard or driveway.” Ibid. And after balancing the factors, the court found “that the portion of

the driveway at issue was not intimately linked to the

home and, therefore, not curtilage.” Ibid. Therefore,

because probable cause supported the officer’s search

of petitioner’s car, the court declined to suppress the

firearm evidence. Id. at 57a-59a.

Petitioner entered a conditional guilty plea to the

charged count, preserving his right to appeal the district court’s denial of his claim that his car was parked

on his home’s curtilage. Pet. App. 3a. The district court

subsequently sentenced petitioner to 40 months of imprisonment, to be followed by three years of supervised

release. Judgment 2-3.

3. The court of appeals affirmed. Pet. App. 1a-42a.

The court explained that “[t]hree lines of reasoning”

support the district court’s conclusion that the officer

“did not step into the house’s curtilage”: a holistic view

of the “patch of driveway”; the four Dunn factors; and

the purpose of the curtilage rule. Id. at 7a.

With respect to the holistic analysis, the court of appeals emphasized that, as documented by the bodycamera footage of the officer’s entry onto the driveway

and encounter with petitioner, the officer stood several

dozen feet from the garage at a location that was

“plainly visible from the street,” and stayed “thirty to

forty feet in front of [petitioner’s] home.” Pet. App. 8a9a. The court noted that the officer stood several dozen

feet from the garage at a location that was “plainly visible from the street,” id. at 8a, and stayed “thirty to

forty feet in front of [petitioner’s] home,” id. at 9a. And

the court found that petitioner “did not have a reasonable expectation of privacy in that part of his driveway,”

which was “on the path that any stranger might take to

the front door.” Id. at 8a-9a.

Turning to the Dunn factors, the court of appeals observed that, “[a]lthough * * * not very illuminating

here,” the four factors “reinforce[d] [its] holding” that

the disputed area of the driveway was not curtilage.

Pet. App. 10a. The court explained that the first factor

(proximity to the home) “does not favor [petitioner]

much” because “the officer did not get close to [petitioner’s] house.” Id. at 11a. As to the second factor (enclosure), the court emphasized the absence of a “fence,

wall, or other enclosure clearly separating the part of

the driveway where the officer stood from the property’s open fields.” Id. at 11a-12a. On the third factor

(whether “the homeowner appeared to use the area for

private, home activities”) the court explained that the

only relevant evidence is “objective evidence”—i.e.,

“whether a reasonable officer would believe that the

space was used for domestic activities”—and found that

“[a]ll objective evidence was that [petitioner] used this

part of the driveway to park cars.” Id. at 12a. And on

the fourth factor (concealment), the court observed that

“anyone walking by the street could see clearly into the

driveway.” Id. at 13a.

The court of appeals also reasoned that a finding of

curtilage here did not further the purpose of protecting

curtilage, which is tethered to the “residents’ privacy in

their houses.” Pet. App. 13a (emphasis omitted). The

court noted that the “police may peer into someone’s

house from a public street,” but if they “sneak onto the

homeowner’s property to learn more about its interior

than they could by observing it from a public place, then

they have breached an area that protects the home’s

privacy—the curtilage.” Id. at 13a-14a. And the court

found that “[a]n officer” in this case “would not expect

to see much more through the front windows [of petitioner’s home] when standing forty feet away from the

house than he could when standing on the street,” “[n]or

would he think that by getting this close, he could better

hear or smell what was going on inside.” Id. at 14a.

Judge Ambro dissented in relevant part. Pet. App.

16a-42a. In his view, the relevant portion of the driveway was close to and connected to the house to constitute curtilage, the Dunn factors favored such a conclusion, and that the purpose of the curtilage doctrine extends beyond keeping the home itself private. Id. at

26a-35a. In the course of analyzing the third Dunn factor, he noted that he would have considered evidence of

uses to which the area was put, even if no objective evidence would have apprised a reasonable officer of those

uses. Id. at 30a-32a.

ARGUMENT

Petitioner renews (Pet. 12-32) his contention that a

police officer walking partway up his driveway violated

his Fourth Amendment rights. The court of appeals

correctly rejected that contention, and its decision does

not conflict with any other court of appeals. In particular, petitioner overstates the extent of any disagreement in the courts of appeals concerning the factors for

discerning a home’s curtilage under United States v.

Dunn, 480 U.S. 294, 301 (1987), and this case does not

present a suitable vehicle for addressing that issue.

Further review is accordingly unwarranted.

1. This Court “considers curtilage—‘the area immediately surrounding and associated with the home’—to

be part of the home itself for Fourth Amendment purposes.” Collins v. Virginia, 584 U.S. 586, 592 (2018)

(quoting Florida v. Jardines, 569 U.S. 1, 6 (2013)) (internal quotation marks omitted). Accordingly, “[w]hen

a law enforcement officer physically intrudes on the

curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred.” Id. at 593.

The central inquiry in determining whether a particular

area is curtilage is “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.” Dunn, 480 U.S. at 301.

Here, the court of appeals correctly determined that

the police officer did not intrude on the curtilage of petitioner’s home. The portion of the driveway on which

the officer stood was “several dozen feet from the garage,” in a place “plainly visible from the street and on

the path that any stranger might take to the front door.”

Pet. App. 8a. Such an area does not “harbor the ‘intimate activity associated with the “sanctity of a man’s

home and the privacies of life,” ’ ” Dunn, 480 U.S. at 300

(quoting Boyd v. United States, 116 U.S. 616, 630

(1886)), so as to be classified as curtilage.

As the court of appeals recognized, the location here

therefore differs from the driveway section that the

Court found to be curtilage in Collins v. Virginia. See

Pet. App. 9a. Collins emphasized that the driveway section there sat “behind the front perimeter of the house,”

with a “side door provid[ing] direct access between th[e]

partially enclosed section of the driveway and the

house,” and in a location that a visitor would not naturally walk when “endeavoring to reach the front door.”

584 U.S. at 593.

2. None of the decisions from the courts of appeals

and state supreme courts that petitioner cites calls that

straightforward determination into question.

In some of the driveway-curtilage decisions favorably cited by petitioner (Pet. 17-19), for example, police

officers ventured beyond the path to the front door and

into other areas of the property. See Chong v. United

States, 112 F.4th 848, 853 (9th Cir. 2024) (per curiam)

(“The deputies * * * approached [the defendant’s] home

by entering the next-door neighbor’s yard,” “hopping

over the retaining wall and bushes on the left side of the

property line,” and “approach[ing] the open garage by

walking between the left-side doorframe and a car

parked on the driveway” while “hugg[ing] a white lattice fence”), cert. denied, 145 S. Ct. 1218 (2025); State v.

Chute, 908 N.W.2d 578, 588 (Minn.) (officer impermissibly entered defendant’s backyard and inspected a

parked camper), cert. denied, 586 U.S. 981 (2018);

United States v. Wells, 648 F.3d 671, 677 (8th Cir. 2011)

(officers walked on “unpaved driveway extending past

the rear of [the defendant’s] home,” including “pas[t]

both the paved walkway leading to [the defendant’s]

front door and the door in the carport”).

In other cases petitioner cites, the parties did not

dispute whether the driveway was curtilage at all. In

State v. Calabrese, 268 A.3d 565 Vt. 2021), for example,

the officer claimed only that he acted within “the scope

of the welfare check that authorized his presence in the

curtilage of the home.” Id. at 578. Similarly, in Hardin

v. State, 148 N.E.3d 932 (Ind. 2020), cert. denied, 141

S. Ct. 2468 (2021), neither party “ask[ed] [the court] to

address whether the vehicle was parked within the

home’s curtilage,” so the court “assume[d] without deciding that the trial court correctly resolved that issue.”

Id. at 939.*

Additional cases cited by petitioner that arose in the

context of execution of a warrant authorizing a search

of a home and its curtilage are likewise inapposite. In

some of those cases, the court did not extensively analyze the particular location to determine its status, presumably because the search would have been lawful either under the automobile exception to the warrant requirement (if not curtilage) or the warrant (if on curtilage). See United States v. Coleman, 909 F.3d 925, 930

(8th Cir. 2018). In others, the property at issue differed

markedly from the driveway at issue here, warranting

a different outcome. See Peacock v. State, 878 S.E.2d

247, 258 (Ga. 2022) (noting the “relative seclusion of the

area” and that the home was “bordered by trees, which

created a natural barrier separating the home * * *

from the road and surrounding area”). And while the

court in Landers v. State, 301 S.E.2d 633 (Ga. 1983),

stated that “a driveway is properly considered within

the curtilage of the dwelling it services,” that was dicta,

as the court concluded that the search at issue did not

occur on the curtilage because the vehicle “was parked

in the driveway of a vacant lot adjoining” the residence

at issue. Id. at 634.

* Petitioner additionally cites (Pet. 18) State v. Bovat, 224 A.3d

103, 106-107 (Vt. 2019), cert. denied, 141 S. Ct. 22 (2020), overruled

by State v. Calabrese, 268 A.3d 565 (Vt. 2021) , which found that the

curtilage included the defendant’s garage, not his driveway. The

court stated only in passing and without analysis that driveways

may be considered “[p]ortions of the curtilage.” Id. at 108.

As those cases illustrate, petitioner’s assertion (Pet.

17) that there is a “growing conflict as to the treatment

of driveways” is an overgeneralization. Courts do not

hold that all driveways (or no driveways) are curtilage.

They instead analyze the particular driveway—or portion of driveway—at issue, and the particular circumstances of the alleged intrusion. See, e.g., Wells, 648

F.3d at 677 (holding that “the portion of [the defendant’s] unpaved driveway extending past the rear of his

home” was curtilage); State v. Pinkham, 679 A.2d 589,

591 (N.H. 1996) (recognizing that “some driveways, or

some portions thereof ” may warrant more protections);

Chute, 908 N.W.2d at 584 (noting that a “driveway of a

home [is] often considered to be within the curtilage of

a home”) (emphasis added); see also United States v.

Beene, 818 F.3d 157 162 (5th Cir.) (analyzing particular

driveway and determining that it is not curtilage), cert.

denied, 580 U.S. 850 (2016); United States v. Coleman,

923 F.3d 450, 456-457 (6th Cir.) (same), cert. denied, 589

U.S. 1083 (2019).

The lower courts’ fact-specific determination that

the police officer’s particular location on a particular

driveway did not constitute an intrusion on the curtilage

of petitioner’s home does not warrant this Court’s review. This Court “do[es] not grant certiorari to review

evidence and discuss specific facts.” United States v.

Johnston, 268 U.S. 220, 227 (1925); see Sup. Ct. R. 10.

Indeed, “under * * * the ‘two-court rule,’ the policy

* * * has been applied with particular rigor when district court and court of appeals are in agreement as to

what conclusion the record requires.” Kyles v. Whitley,

514 U.S. 419, 456-457 (1995) (Scalia, J., dissenting) (citing Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,

336 U.S. 271, 275 (1949)).

3. Petitioner contends (Pet. 12) that this Court

should nonetheless grant certiorari to address the more

general issue of whether “evidence of how an area was

actually used by the homeowner is []relevant to the curtilage inquiry,” even if that use “would [not] have been

apparent to the officer conducting the search.” But petitioner overstates both the level of disagreement in the

lower courts and the practical implications of that disagreement under the circumstances at issue here.

a. In United States v. Dunn, this Court described

four factors that can help to guide the determination

whether an area adjacent to a home is “curtilage”: (1)

proximity to the home; (2) whether the area is included

within an enclosure surrounding a home; (3) the nature

and uses of the area; and (4) steps taken by the resident

to protect the area from observation. 480 U.S. at 301.

The court of appeals considered those factors here and

found that they weighed against a finding that the disputed area was curtilage. See Pet. App. 10a-13a. The

court observed that “the officer did not get close to [petitioner’s] home,” id. at 11a, there was no “fence, wall,

or other enclosure clearly separating the part of the

driveway where the officer stood,” id. at 11a-12a; “there

was no sign of [private domestic activities] to alert the

officer,” id. at 13a; and “anyone walking by on the street

could see clearly into the driveway,” ibid.

Consistent with decisions from the Sixth and Eighth

Circuits, the court of appeals reasoned that the third

Dunn factor assesses how the disputed area “looks objectively to a reasonable officer.” Pet. App. 12a; see

United States v. Gerard, 362 F.3d 484, 488 (8th Cir.),

cert. denied, 543 U.S. 928 (2004); Daughenbaugh v. City

of Tiffin, 150 F.3d 594, 599 (6th Cir. 1998). That approach is also consistent with this Court’s decision in

Dunn, which, in applying the third factor, noted that

“law enforcement officials possessed objective data indicating that the barn was not being used for intimate

activities of the home.” 480 U.S. at 302; see id. at 305

(Scalia, J., concurring in part) (recognizing that portion

of the opinion relied on “[t]he officers’ perceptions” and

declining to join it).

The approach is additionally consistent with the fact

that “Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to

regulate the police in their day-to-day activities and

thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged.”

New York v. Belton, 453 U.S. 454, 458 (1981); see Atwater v. City of Lago Vista, 532 U.S. 318, 347 (2001) (similar). The Fourth Amendment’s “command of reasonableness” requires “standards [that are] sufficiently

clear and simple” for officers to “appl[y] with a fair prospect of surviving judicial second-guessing months and

years after an arrest or search is made.” Atwater, 532

U.S. at 347.

An approach that turns on facts that are unknown—

or, worse yet, unknowable—to an officer on the scene

does not supply a workable standard. Such an approach

would find unreasonableness where the officers acted

reasonably based on objective evidence. And it could

potentially work to defendants’ own detriment, if it

turned out that an area that appeared private was in

fact not put to private use—such as an area of someone’s property that, as it turns out, neighbors and others are free to come and use. See, e.g., Gerard, 362 F.3d

at 488 (rejecting government’s reliance on evidence not

apparent to officer up front).

b. Petitioner asserts (Pet. 14) that four circuits decline to limit the third Dunn factor to “objective evidence of intimate uses possessed by officers,” United

States v. Diehl, 276 F.3d 32, 40 (1st Cir.), cert. denied,

537 U.S. 834 (2002), and further consider “the actual use

to which the property was put,” United States v. Reilly,

76 F.3d 1271, 1278 (2d Cir. 1996); see United States v.

Ronquillo, 94 F.4th 1169, 1174 (10th Cir. 2024); United

States v. Depew, 8 F.3d 1424, 1427 (9th Cir. 1993), overruled on other grounds by United States v. Johnson,

256 F.3d 895 (9th Cir. 2001) (en banc) (per curiam). But

review of any such narrow disagreement is unwarranted because petitioner’s Fourth Amendment claim

would have failed even if actual-use evidence were considered. See Supervisors v. Stanley, 105 U.S. 305, 311

(1882) (explaining that this Court does not grant a writ

of certiorari to “decide abstract questions of law * * *

which, if decided either way, affect no right” of the parties).

The third Dunn factor looks to whether “intimate activities of the home” occurred at the disputed location.

480 U.S. at 302; see, e.g., Ronquillo, 94 F.4th at 1175

(“Defendant used the detached garage as a living quarter.”). On that issue, petitioner tendered evidence that

his family used the driveway as a children’s play area

and a location for twice-monthly family gatherings. See

Pet. App. 20a (Ambro, J., concurring in part and dissenting in part). Such “ ‘occasional[]’ ” use would weigh

only “slightly” in petitioner’s favor. United States v. Alexander, 888 F.3d 628, 633 (2d Cir. 2018) (occasional

barbecue hosting) (citation omitted). Because the location was still “plainly visible from the street and on the

path that any stranger might take to the front door,”

Pet. App. 8a, such use would not make a difference in

the result even in the circuits whose approaches petitioner embraces, see United States v. Brown, 510 F.3d

57, 65 (1st Cir. 2007) (“If the relevant part of the driveway is freely exposed to public view, it does not fall

within the curtilage.”); United States v. Cousins, 455

F.3d 1116, 1123 (10th Cir.) (looking to area’s “primary”

or “significant” use and reasoning that “the presence of

the electric meter and paved walkway belie any claim

that the sideyard was intended as a private space”),

cert. denied, 549 U.S. 866, and 549 U.S. 1070 (2006); Depew, 8 F.3d at 1428 (observing that area “was not visible

from the highway below due to the long driveway, a row

of thick trees blocking the view, and the lower elevation

of the highway,” defendant had posted “ ‘No Trespassing’ signs,” and “uninvited guests had never previously

entered the property”).

In all events, as the court of appeals explained, the

Dunn factors are simply a “heuristic[]” aimed at assisting courts in determining “ ‘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.” Pet. App. 7a (quoting Dunn,

480 U.S. at 301). Those factors need not be applied in

every curtilage case, as this Court’s decisions illustrate.

See id. at 8a (noting that Jardines and Collins did not

apply the Dunn factors). Any circuit disagreement as

to the application of one out of four heuristic factors,

concerning an issue that need not even be dispositive as

to that factor, does not warrant this Court’s review.

4. Finally, this case is not a suitable vehicle for addressing petitioner’s Fourth Amendment challenge because, as the government argued below, see Gov’t C.A.

Br. 43-47, suppression of evidence resulting from any

intrusion onto petitioner's curtilage would be unwar-

ranted. Indeed, petitioner appears to acknowledge that

“the officer’s perception” would be relevant to the officer’s “ ‘good faith’ ” for purposes of establishing an exception to the exclusionary rule. Pet. 24 (quoting Pet.

App. 31a (Ambro, J., concurring in part and dissenting

in part)). That apparent acknowledgment undermines

the significance of the issue as a general matter and in

the specific context of this case.

The exclusionary rule is a “judicially created remedy” designed to “safeguard Fourth Amendment rights

generally through its deterrent effect.” United States

v. Leon, 468 U.S. 897, 906 (1984) (citation omitted). This

Court has emphasized, however, that suppression is an

“extreme sanction,” id. at 916, because the “exclusion of

relevant incriminating evidence always entails” “grave”

societal costs, Hudson v. Michigan, 547 U.S. 586, 595

(2006). Most obviously, it allows “guilty and possibly

dangerous defendants [to] go free—something that ‘offends basic concepts of the criminal justice system.’ ”

Herring v. United States, 555 U.S. 135, 141 (2009) (quoting Leon, 468 U.S. at 908).

This Court has thus held that, “[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and

sufficiently culpable that such deterrence is worth the

price paid by the justice system.” Herring, 555 U.S. at

144. Suppression may be warranted “[w]hen the police

exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights.” Davis v. United

States, 564 U.S. 229, 238 (2011) (citation omitted). “But

when the police act with an objectively reasonable goodfaith belief that their conduct is lawful, * * * the deterrence rationale loses much of its force, and exclusion

cannot pay its way.” Ibid. (citations and internal quota-

tion marks omitted). Reliance on binding appellate

precedent can establish the applicability of the goodfaith exception. Id. at 239-241.

Under those principles, suppression would not be appropriate here even if the police officer’s actions were

held to violate the Fourth Amendment. The officer “approach[ed] the home by the front path,” just as the “Girl

Scouts and trick-or-treaters” might. Jardines, 569 U.S.

at 8. And because nothing on that path put the officer

on notice that it was associated with any “intimate activities of the home,” Dunn, 480 U.S. at 302, petitioner

has not demonstrated that the officer displayed the sort

of “ ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights” that is required to

justify the high costs of suppression. Davis, 564 U.S. at

238 (citation omitted).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.