Petition for Writ of Certiorari — Cameron Watkins, Petitioner v. United States
Supreme Court briefAug 7, 2026
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APPENDIX
APPENDIX
TABLE
APPENDICES
TABLE OF
OF APPENDICES
APPENDIX A:
A: Opinion,
States v.
v.
APPENDIX
Opinion, United
United States
Cir. Oct.
2025)..
Watkins,
23-6210, (10th
(10th Cir.
Oct. 14,
14, 2025)
Watkins, No.
No. 23-6210,
la
1a
APPENDIX B:
Order, United
States v.
v. Watkins,
APPENDIX
B: Order,
United States
Watkins,
No. CR-22-325-R,
No.
Jan. 18,
18, 2023)
CR-22-325-R, (W.D.
(W.D. Okla.
Okla. Jan.
2023) .. 30a
30a
APPENDIX
C: Order
Order denying
denying panel
panel rehearing
rehearing or
APPENDIX C:
or
rehearing
en
banc,
United
States
v.
Watkins,
rehearing en banc, United States v. Watkins,
No. 23-6210,
23-6210, (10th
(10th Cir.
Cir. May
2026) .............. 36a
No.
May 11,
11, 2026)
36a
APPENDIX C: Appellant's petition for panel
rehearing or rehearing en banc, Watkins v.
United States, No. 23-6210, (10th Cir. Dec. 12,
2025)
42a
APPENDIX A
A
APPENDIX
Filed 10/14/25 Page 1 of 29
Date Filed: 10/14/2025 Page: 1
FILED
FILED
United States
States Court
of Appeals
Appeals
United
Court of
Tenth
Circuit
Tenth
Circuit
PUBLISH
PUBLISH
Case 5:22-cr-00325-R Document 159
Appellate Case: 23-6210 Document: 75-1
October 14,
14, 2025
2025
October
UNITED STATES
COURT OF
UNITED
STATES COURT
OF APPEALS
APPEALS
FOR
THE TENTH
TENTH CIRCUIT
FOR THE
CIRCUIT
_________________________________
Christopher
M. Wolpert
Wolpert
Christopher M.
Clerk of
of Court
Court
Clerk
UNITED
UNITED STATES
STATES OF
OF AMERICA,
AMERICA,
Plaintiff
Plaintiff -- Appellee,
Appellee,
v.
v.
No. 23-6210
23-6210
No.
CAMERON
CAMERON WATKINS,
WATKINS, a/lc/a
a/k/a Crazy
Crazy Gun,
Gun,
Defendant
Defendant -- Appellant.
Appellant.
_________________________________
Appeal
Appeal from
from the
the United
States District
District Court
United States
Court
for the
the Western
Western District
District of
of Oklahoma
for
Oklahoma
(D.C. No.
No. 5:22-CR-00325-R-1)
5:22-CR-00325-R-1)
(D.C.
_________________________________
Jonathan
D. Reppucci,
Reppucci, Reppucci
Reppucci Law
Law Firm,
Firm, Denver,
Denver, Colorado
Colorado (Virginia
(Virginia L.
Grady,
Jonathan D.
L. Grady,
Federal Public
Public Defender,
Defender, and
and Shira
Kieval, Assistant
Assistant Federal
Federal Public
Public Defender,
Defender, Denver,
Denver,
Federal
Shira Kieval,
Colorado, with
with him
him on
on the
the briefs),
briefs), for
Defendant-Appellant.
Colorado,
for Defendant-Appellant.
Jacquelyn
M. Hutzell,
Hutzell, Assistant
Assistant United
United States
Attorney, Oklahoma
Oklahoma City,
City, Oklahoma
Oklahoma
Jacquelyn M.
States Attorney,
(Robert J.
Troester, United
United States
Attorney, Oklahoma
Oklahoma City,
City, Oklahoma,
Oklahoma, with
with her
her on
on the
the
(Robert
J. Troester,
States Attorney,
brief), for
Plaintiff-Appellee.
brief),
for Plaintiff-Appellee.
_________________________________
Before HARTZ,
and MORITZ,
MORITZ, Circuit
Circuit Judges.
Before
HARTZ, PHILLIPS,
PHILLIPS, and
Judges.
_________________________________
HARTZ, Circuit
Circuit Judge.
HARTZ,
Judge.
_________________________________
A
A motel
motel manager
manager told
told police
police officers
officers that
that aa man
man matching
matching the
the description
description of
of aa
carjacking suspect
suspect was
was staying
staying in
in one
one of
of the
the motel
motel rooms.
rooms. When
When officers
officers reached
the
carjacking
reached the
room along
along an
an open-air
open-air corridor,
corridor, one
one peered
peered through
through aa one-inch
one-inch gap
gap in
in the
the window
window
room
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curtains and
and saw
saw Defendant
Defendant Cameron
Cameron Watkins
Watkins sitting
sitting on
on aa bed—next
bed—next to
to aa handgun
handgun
curtains
with an
an extended
magazine. This
This observation
observation led
led to
to Defendant's
Defendant’s conviction
conviction as
as aa felon
with
extended magazine.
felon
in possession
possession of
of aa firearm
on that
that date,
date, and
and also
also played
played aa role
role in
in his
his conviction
conviction as
as aa
in
firearm on
felon in
in possession
felon
possession of
of ammunition
ammunition on
on another
another occasion.
occasion. On
On appeal
appeal he
he contends
contends that
that
both convictions
convictions must
must be
be set
set aside
aside because
because the
the observation
observation by
by the
the officer
officer was
was an
an
both
unlawful search.
search. We
We hold
hold that
that there
there was
was no
no violation
violation of
of Defendant's
Defendant’s Fourth
Fourth
unlawful
Amendment rights
because the
the observation
observation was
was made
made by
by an
an officer
officer with
with his
his unaided
unaided
Amendment
rights because
senses from
public space.
space. In
particular, the
the officer
officer (1)
(1) did
did not
not breach
breach the
the motel
motel
senses
from aa public
In particular,
room’s curtilage
curtilage and
and (2)
(2) did
did not
not intrude
intrude on
on Defendant's
Defendant’s reasonable
reasonable expectation
of
room's
expectation of
privacy. Exercising
jurisdiction under
under 28
28 U.S.C.
U.S.C. §§ 1291,
1291, we
we affirm
affirm the
the convictions.
convictions.
privacy.
Exercising jurisdiction
I.
I.
BACKGROUND
BACKGROUND
A.
A.
The
Motel Incident
The Motel
Incident
On October
October 8,
8, 2021,
2021, just
just after
after midnight,
midnight, three
three police
police officers
officers arrived
arrived at
at the
the
On
for aa man
OakTree Inn
Inn and
and Suites,
motel in
in Oklahoma
Oklahoma City.
City. They
They were
were looking
looking for
man
OakTree
Suites, aa motel
who had
had violently
violently carjacked
carjacked and
and kidnapped
woman in
in the
the motel
motel parking
parking lot
lot aa few
few
who
kidnapped aa woman
hours before.
before. Fortunately,
Fortunately, the
the woman
woman had
had managed
managed to
to escape,
and her
her car
car had
had been
been
hours
escape, and
abandoned by
by the
the carjacker.
carjacker. She
described her
her assailant
assailant as
as aa short,
short, black
black man
man with
with
abandoned
She described
dreadlocks
and aa goatee,
goatee, who
who was
was wearing
wearing black
black jeans.
jeans. After
After the
the officers
officers relayed
this
dreadlocks and
relayed this
description
to the
the motel
motel manager,
manager, he
he said
said it
matched the
the description
description of
of aa man
man staying
staying
description to
it matched
in
room 231.
231.
in room
The
motel was
was aa three-story
three-story building,
building, with
with rooms
arranged in
in aa rectangle
The motel
rooms arranged
rectangle
around aa central
central courtyard.
courtyard. The
The rooms
rooms were
were accessible
accessible only
only from
open-air walkways
walkways
around
from open-air
2
2
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around the
the courtyard.
Room 231
231 was
was aa second-floor
second-floor unit
unit at
at the
the end
of one
one of
of the
the
around
courtyard. Room
end of
walkways. The
The walkway
walkway extended
past the
the door,
door, which
which faced
walkways.
extended aa few
few feet
feet past
faced aa
perpendicular walkway.
walkway. One
One of
of the
the room's
room’s windows,
windows, above
above an
an air-conditioning
air-conditioning unit,
unit,
perpendicular
overlooked the
the extension.
There was
was aa short
short railing
two sides
sides of
of the
the
overlooked
extension. There
railing enclosing
enclosing two
extension.
The room
was accessible
accessible from
the parking
parking lot
lot via
via an
an outdoor
outdoor staircase.
staircase.
extension. The
room was
from the
Below are
are two
two photographs
photographs depicting
depicting the
the outside
outside of
of room
231, which
which Defendant
Defendant
Below
room 231,
submitted with
with his
his motion
motion to
to suppress,
suppress, and
and which
which both
both parties
parties now
now rely
on:
submitted
rely on:
BF
p
The officers
officers climbed
climbed the
the exterior
stairway and
and walked
walked to
to room
231. Officer
Officer
The
exterior stairway
room 231.
Michael McNally
McNally looked
the window
window above
above the
the AC
AC unit.
unit. Shortly
afterwards, he
he
Michael
looked into
into the
Shortly afterwards,
said that
that the
the curtains
curtains were
were open
open "about
“about an
an inch."
inch.” Supp.
R., Vol.
Vol. 2,
2, Def.
Def. Ex.
15 (body
(body
Ex. 15
said
Supp. R.,
camera footage).
he saw
saw aa short,
short, black
black man
man with
with dreadlocks
dreadlocks and
and aa goatee,
goatee,
camera
footage). Inside,
Inside, he
sitting on
on aa bed
bed without
without pants
pants on.
on. He
He had
had aa handgun
handgun with
with an
an extended
magazine next
next
sitting
extended magazine
to him.
him.
to
The officers
officers knocked
knocked and
and announced
announced their
their presence.
presence. After
After aa three-hour
three-hour
The
standoff, Defendant
Defendant emerged,
and the
the officers
officers arrested
arrested him.
him. They
showed
standoff,
emerged, and
They showed
photographs to
to the
the victim,
victim, who
who identified
identified him
him as
as the
the man
man who
who had
had carjacked
carjacked and
and
photographs
3
3
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kidnapped her.'
her. 1 Based
Based on
on the
the victim's
victim’s story,
story, her
her positive
positive identification,
and Officer
Officer
kidnapped
identification, and
McNally’s view
view of
of the
the handgun,
handgun, the
the police
police obtained
obtained aa search
search warrant
warrant for
room 231.
231.
McNally's
for room
They discovered
discovered aa loaded
loaded 9mm
Glock handgun
handgun stashed
stashed inside
inside aa vacuum
vacuum cleaner;
cleaner; an
an
They
9mm Glock
extended
magazine stuffed
stuffed into
hole for
an electrical
outlet; and
and 28
28 rounds
rounds of
of
extended magazine
into aa hole
for an
electrical outlet;
Luger-caliber ammunition
Luger-caliber
ammunition inside
inside the
the magazine,
magazine, including
WIN-brand and
and FC-brand
FC-brand
including WIN-brand
ammunition.
ammunition.
B.
B.
Court Proceedings
Court
Proceedings
In August
August 2022
2022 Defendant
Defendant was
was indicted
on one
one count
count of
of being
being aa felon
in
In
indicted on
felon in
possession of
of aa firearm
on October
October 8,2021.
8, 2021. See
See 18
18 U.S.C.
U.S.C. §§ 922(g)(1).
A few
months
possession
firearm on
922(g)(1). A
few months
later he
he moved
moved to
to suppress
suppress the
the evidence
in room
231, arguing
arguing that
that Officer
Officer
later
evidence found
found in
room 231,
McNally’s "search"
“search” violated
violated his
his Fourth
Fourth Amendment
Amendment rights.
rights. R.,
R., Vol.
Vol. 11 at
at 46-47.
46–47. In
McNally's
In
particular, he
he argued
argued that
that Officer
Officer McNally
McNally physically
physically intruded
intruded into
into the
the room's
room’s
particular,
curtilage when
when he
he stepped
stepped onto
onto the
the "porch
“porch area"
area” in
in front
of the
the window
window and
and violated
violated
curtilage
front of
his reasonable
reasonable expectation
of privacy
privacy by
by peering
peering through
through aa window
window with
with "partially
“partially
his
expectation of
closed curtains."
curtains.” Id.
Id. at
at 49-51.
49–51. The
The district
district court
court denied
denied the
the motion.
motion. Finding
Finding that
that "the
“the
closed
exterior
walkway leading
leading to
to Room
Room 231
231 was
was open
open to
to the
the public,"
public,” that
that it
it was
was
exterior walkway
“undoubtedly used
used by
by other
other motel
motel patrons
patrons and
and staff,"
staff,” and
and that
that there
there was
was no
no "fence
“fence or
or
"undoubtedly
barrier” blocking
blocking access,
access, it
held there
there was
was no
no Fourth
Fourth Amendment
Amendment violation
violation because
because
barrier"
it held
Officer McNally
McNally was
was "standing
“standing in
in aa public
public place"
place” when
when he
he looked
looked through
through the
the
Officer
window. Id.
Id. at
at 279.
279.
window.
Roughly aa year
year later
she retracted
retracted her
her identification
after learning
learning that
that aa
1 Roughly
later she
identification after
different
different man
man was
was the
the carjacker.
carjacker.
1
44
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In December
December 2022
2022 Defendant
Defendant was
was charged
superseding indictment,
indictment, which
which
In
charged in
in aa superseding
added aa second
second count
count of
of being
being aa felon
possession of
of ammunition-16
ammunition—16 "spent
“spent 9mm
9mm
added
felon in
in possession
Luger
caliber cartridge
cartridge cases,"
cases,” including
including 12
WIN-brand and
and 33 FC-brand
FC-brand cartridge
cartridge
Luger caliber
12 WIN-brand
cases, found
at aa murder
murder scene
scene on
on July
20, 2022. Id.
Id. at
at 159-60;
159–60; see
see 18
U.S.C.
cases,
found at
July 20,2022.
18 U.S.C.
§ 922(g)(1).
He then
then pleaded
pleaded guilty
guilty to
to the
the firearm
charge (reserving
(reserving the
the right
to
§
922(g)(1). He
firearm charge
right to
appeal the
the denial
denial of
of his
his motion
motion to
to suppress)
suppress) and
and proceeded
proceeded to
to trial
trial on
on the
the ammunition
ammunition
appeal
charge.
charge.
At trial
trial the
the government
government sought
sought to
to prove
prove that
that Defendant
Defendant possessed
possessed the
the
At
ammunition
ammunition by
by showing
showing he
he was
was the
the shooter.
shooter. It
It relied
relied on
on eyewitness
testimony,
eyewitness testimony,
surveillance footage,
and cell-phone
cell-phone location
location data.
data. The
government also
also used
used the
the
surveillance
footage, and
The government
parties’ guilty-plea
guilty-plea stipulation
stipulation to
to show
show that
that the
the ammunition
ammunition at
at the
the murder
murder scene
scene
parties'
largely matched
found in
in room
room 231
earlier. See
largely
matched the
the ammunition
ammunition found
231 nine
nine months
months earlier.
See R.,
R., Vol.
Vol.
11 at
at 962–64
(government arguing
arguing in
rebuttal closing
closing that
that "you
“you know
know the
the defendant
defendant
962-64 (government
in rebuttal
had
9mm Luger
had aa 9mm
caliber pistol
pistol in
in October
October of
of 2021.
2021. He
He stipulated
stipulated to
to that.
that. And
And you
you
Luger caliber
know
what? The
that were
were loaded
in that
that gun's
gun’s extended
magazine, 22
22 rounds
rounds
know what?
The rounds
rounds that
loaded in
extended magazine,
of that
that ammunition,
ammunition, were
were the
the very
very same
same brand
brand as
as 15
of the
the 16
16 rounds
rounds of
of ammunition
ammunition
of
15 of
that are
are charged
charged in
in this
this case.").
case.”). The
The jury
jury convicted
convicted Defendant
Defendant on
on the
the ammunition
ammunition
that
charge, and
and the
the district
district court
court imposed
imposed consecutive
consecutive sentences
sentences of
of 120
120 months
months on
on the
the
charge,
firearm charge
firearm
charge and
and 180
180 months
months on
on the
the ammunition
ammunition charge.
charge.
II.
II.
DISCUSSION
DISCUSSION
“When reviewing
reviewing the
the denial
denial of
of aa motion
motion to
to suppress,
suppress, we
we view
view the
the evidence
in the
the
"When
evidence in
light
most favorable
to the
the government,
government, accept
accept the
the district
district court's
court’s findings
of fact
unless
light most
favorable to
findings of
fact unless
5
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clearly erroneous,
and review
review de
de novo
novo the
the ultimate
ultimate determination
determination of
of reasonableness
reasonableness under
under
clearly
erroneous, and
the Fourth
Fourth Amendment."
Amendment.” United
States v.
Ronquillo, 94
F.4th 1169,
1169, 1172
(10th Cir.
Cir.
1172 (10th
the
United States
v. Ronquillo,
94 F.4th
2024) (internal
(internal quotation
quotation marks
marks omitted).
omitted).
2024)
The Fourth
Fourth Amendment
Amendment safeguards
safeguards "[t]he
“[t]he right
right of
of the
the people
people to
to be
be secure
secure in
in their
their
The
persons, houses,
houses, papers,
papers, and
and effects,
against unreasonable
unreasonable searches
searches and
and seizures."
seizures.” U.S.
U.S.
persons,
effects, against
Const. amend.
amend. IV.
Its protection
protection extends
to "[o]vernight
“[o]vernight guests
guests and
and joint
joint occupants
occupants of
of
Const.
IV. Its
extends to
motel rooms.”
States v.
Kimoana, 383
383 F.3d
F.3d 1215,
1221 (10th
(10th Cir.
Cir. 2004).2
2004). 2
motel
rooms." United
United States
v. Kimoana,
1215, 1221
A.
A.
Curtilage
Curtilage
When
When an
an officer
officer "obtains
“obtains information
information by
by physically
physically intruding"
intruding” on
on aa person's
person’s
dwelling, or
or "the
“the area
area immediately
immediately surrounding
surrounding and
and associated
associated with"
with” it
it known
as the
the
dwelling,
known as
“curtilage,” he
he performs
performs aa search
search governed
governed by
by the
the Fourth
Fourth Amendment.
Amendment. Florida
Florida v.
"curtilage,"
v.
Jardines, 569
U.S. 1,
(2013) (internal
(internal quotation
quotation marks
marks omitted)
omitted) (prohibiting
(prohibiting
Jardines,
569 U.S.
1, 5–6
5-6 (2013)
warrantless use
use of
of drug-sniffing
drug-sniffing dog
within curtilage
of home).
home). Defendant
Defendant first
contends
warrantless
dog within
curtilage of
first contends
that Officer
Officer McNally
McNally "physically
“physically intruded
intruded into
into the
the curtilage
curtilage of
of the
the motel
motel suite."
suite.” Aplt.
Aplt. Br.
Br.
that
at 12.
We are
are not
not persuaded.
persuaded.
at
12. We
“Curtilage is
the area
area to
to which
which extends
the intimate
intimate activity
activity associated
associated with
with the
the
"Curtilage
is the
extends the
sanctity of
of aa man's
man’s home
home and
and the
the privacies
privacies of
of life."
life.” Reeves
Reeves v.
484 F.3d
F.3d 1244,
1244,
sanctity
v. Churchich,
Churchich, 484
1254
1254 (10th
(10th Cir.
Cir. 2007)
2007) (brackets
(brackets and
and internal
internal quotation
quotation marks
marks omitted).
omitted). Its
Its boundaries
boundaries
“are generally
generally clearly
clearly marked,"
marked,” and,
and, in
any event,
the concept
concept is
is "familiar
“familiar enough
that it
"are
in any
event, the
enough that
it
Although Defendant did not rent the motel room himself, he said that his
sister had
had rented
it, she
she had
had given
given him
him aa key,
key, and
and he
he had
had slept
slept there
there the
the previous
previous
sister
rented it,
night. He
He maintains
maintains that
that he
he therefore
therefore has
has standing
standing to
to challenge
challenge the
the search
search of
of the
the
night.
room.
The government
room. The
government does
does not
not contest
contest this,
this, and
and we
we agree.
agree.
2
2 Although Defendant did not rent the motel room himself, he said that his
6
6
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is easily
understood from
our daily
daily experience.”
Jardines, 569
U.S. at
at 77 (internal
(internal
is
easily understood
from our
experience." Jardines,
569 U.S.
quotation marks
marks omitted).
omitted). Examples
home’s "front
“front porch,"
porch,” "side
“side garden,"
garden,” and
and
quotation
Examples include
include aa home's
the area
area "just
“just outside
outside the
the front
window.” Id.
Id. at
at 6-7;
6–7; accord
accord Collins
584 U.S.
U.S.
the
front window."
Collins v.
v. Virginia,
Virginia, 584
586,
(2018) (portion
(portion of
of driveway
driveway partially
partially enclosed
by wall
wall on
on two
two sides
sides and
and
586, 592–93
592-93 (2018)
enclosed by
house on
on third
third side
side was
was curtilage).
curtilage). But
But aa "public
“public place
place or
or open
open field”
is not
not curtilage.
curtilage.
house
field" is
Reeves, 484
484 F.3d
F.3d at
at 1254.
And "if
“if aa police
police officer
officer makes
makes observations
observations while
while in
in aa public
public
Reeves,
1254. And
place or
or open
open field”
and uses
uses only
only his
his unaided
unaided senses,
senses, then
then he
he has
has not
not committed
committed aa
place
field" and
“search,” "even
“even if
if the
the objects
objects he
he observes
observes lie
within an
an area
area protected
protected by
by the
the Fourth
Fourth
"search,"
lie within
Amendment.” Id.
Id.
Amendment."
Officer McNally
McNally observed
observed Defendant's
Defendant’s handgun
handgun and
and extended
magazine from
Officer
extended magazine
from aa
place freely
accessible to
to the
the public—the
public—the open-air
open-air walkway
walkway that
that was
was directly
directly accessible
accessible
place
freely accessible
from
the motel
motel parking
parking lot.
lot. See
See id.;
States v.
Lewis, 38
38 F.4th
F.4th 527,
532, 536
536 (7th
(7th
from the
id.; United
United States
v. Lewis,
527, 532,
Cir. 2022)
2022) ("[T]he
(“[T]he exterior
hallway of
of aa hotel
hotel adjacent
adjacent to
to aa parking
parking lot
lot is
is much
much closer"
closer” to
to
Cir.
exterior hallway
“public setting[]"
setting[]” than
than aa home's
home’s "front
“front porch.").
porch.”). The
photo evidence
that the
the
aa "public
The photo
evidence establishes
establishes that
walkway, including
including the
the extension
next to
to room
room 231
231 on
on which
which Officer
Officer McNally
McNally stood,
stood, was
was
walkway,
extension next
part of
of the
the motel's
motel’s common
common area,
area, in
that it
it was
was freely
accessible to
to all
all staff,
staff, guests,
guests, and
and
part
in that
freely accessible
visitors. Contrary
Contrary to
to Defendant's
Defendant’s suggestions,
suggestions, the
the extension
of the
the walkway
walkway was
was not
not
visitors.
extension of
"porch-like."
19, 24,
“porch-like.” Aplt.
Aplt. Br.
Br. at
at 19,
24, 26,
26, 31.
31. Although
Although Defendant
Defendant stresses
stresses that
that it
it was
was aa "dead
“dead
end,”
at 24,
24, 27,
27, 31,
31, the
the record
record indicates
that there
there was
was no
no obstruction
obstruction from
the
end," id.
id. at
indicates that
from the
adjacent walkways
walkways and
and no
no furniture
or marking
marking to
to suggest
suggest it
it was
was reserved
reserved for
use by
by
adjacent
furniture or
for use
occupants of
of only
only aa particular
particular room.
room. Anyone
Anyone could
could stand
stand there
there to
to check
check on
on aa car
car in
in the
the
occupants
parking lot
lot below,
below, smoke
smoke aa cigarette,
cigarette, or
or simply
simply catch
catch aa breath
breath of
of fresh
air.
parking
fresh air.
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As in
Reeves, although
although the
the walkway's
walkway’s extension
was in
in "close
“close proximity"
proximity” to
to the
the
As
in Reeves,
extension was
motel room,
it was
was not
not "enclosed,"
“enclosed,” it
it was
was not
not "used
“used for
intimate activities
activities of
of the
the home,"
home,”
motel
room, it
for intimate
and it
was not
not "in
“in any
any way
way protected
protected from
observation.” 484
484 F.3d
F.3d at
at 1255
1255 (front
(front yard
yard of
of
and
it was
from observation."
duplex was
was not
not curtilage).
curtilage). The
was aa place
place accessible
accessible to
to the
the public—not
public—not an
an
duplex
The extension
extension was
area "intimately
“intimately tied"
tied” to
to the
the motel
motel room.
room. United
States v.
Dunn, 480
480 U.S.
U.S. 294,
294, 301
area
United States
v. Dunn,
301
(1987). Therefore,
it was
was not
not curtilage.
curtilage. See
See Lewis,
Lewis, 38
38 F.4th
F.4th at
at 532,
532, 535
(concluding that
that
(1987).
Therefore, it
535 (concluding
such aa second-floor
second-floor "open-air"
“open-air” hotel
hotel hallway
hallway was
was not
not curtilage
curtilage because
because it
it was
was "accessible
“accessible
such
via an
an exterior
staircase that
that led
directly to
to aa parking
parking lot”
and the
the occupant
occupant "lacked
“lacked the
the
via
exterior staircase
led directly
lot" and
right to
to exclude
members of
of the
the public
public from
passing through").
through”).
right
exclude members
from passing
Defendant’s counterargument
counterargument is
is unpersuasive.
unpersuasive. He
He contends
contends that
that Jardines
Jardines
Defendant's
categorically classified
classified areas
areas "outside
“outside the
the front
window” of
of all
all dwellings
dwellings as
as curtilage.
curtilage.
categorically
front window"
569
U.S. at
at 6.
But there
there the
the Court
Court was
was specifically
specifically speaking
speaking of
of the
the area
area "just
“just outside
outside the
the
569 U.S.
6. But
front
window” of
of aa person's
person’s home.
Id. (emphasis
(emphasis added)
added) (explaining
(explaining that
that "the
“the home
is
front window"
home. Id.
home is
first
among equals,”
that "the
“the right
right of
of aa man
man to
to retreat
retreat into
his own
own home”
stands at
at the
the
first among
equals," that
into his
home" stands
Fourth Amendment's
Amendment’s "very
“very core,"
core,” and
and that
that "[t]his
“[t]his right
would be
be of
of little
practical value
value
Fourth
right would
little practical
if the
the State’s
agents could
could stand
stand in
in aa home’s
porch or
or side
side garden,"
garden,” or
or "just
“just outside
outside the
the
if
State's agents
home's porch
front
window,” and
and "trawl
“trawl for
with impunity"
impunity” (emphasis
(emphasis added
added and
and internal
internal
front window,"
for evidence
evidence with
quotation marks
marks omitted)).
omitted)). Motels
Motels are
are qualitatively
qualitatively different
different from
typical private
private homes
homes
quotation
from typical
because the
the areas
areas outside
outside each
unit (just
(just outside
outside any
any window)
window) are
are generally
generally common
common
because
each unit
areas, not
not intimate
intimate spaces
spaces reserved
reserved for
the unit
unit occupant.
occupant.
areas,
for the
8
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Reasonable
of Privacy
Reasonable Expectation
Expectation of
Privacy
Defendant argues
argues that
that even
the walkway's
walkway’s extension
was not
not curtilage,
the
Defendant
even if
if the
extension was
curtilage, the
officer’s peering
peering through
through "a
“a one-inch
one-inch gap
gap in
in the
the otherwise-closed
otherwise-closed window
window curtain"
curtain” was
was
officer's
"the
“the type
type of
of highly
highly intrusive
intrusive snooping
snooping that
that invaded
invaded [his]
[his] reasonable
of
reasonable expectation
expectation of
privacy” and
and thereby
thereby violated
violated his
his Fourth
Fourth Amendment
Amendment rights.
Aplt. Br.
Br. at
at 32.
32. We
We disagree.
disagree.
privacy"
rights. Aplt.
We recognize
that even
when an
an officer
officer has
has not
not entered
the curtilage
curtilage of
of aa
We
recognize that
even when
entered the
dwelling, his
his observations
observations of
of people,
people, effects,
or activity
activity within
within the
the dwelling
dwelling may
may
dwelling,
effects, or
constitute aa Fourth
Fourth Amendment
Amendment search.
search. See
See Kyllo
Kyllo v.
States, 533
U.S. 27,
27, 33-34
33–34
constitute
v. United
United States,
533 U.S.
(2001). But
But that
that is
true only
only when
when the
the officer
officer uses
uses extraordinary
means to
to make
make the
the
(2001).
is true
extraordinary means
observations. See
See id.
at 29,
29, 34-35
34–35 (concluding
(concluding that
that an
an officer's
officer’s "use
“use of
of aa thermal-imaging
thermal-imaging
observations.
id. at
device aimed
aimed at
at aa private
private home
home from
public street"
street” constituted
constituted aa search).
search). Roughly
Roughly
device
from aa public
speaking, "[unaided]
“[unaided] visual
visual observation
observation is
no ‘search’
at all."
all.” Id.
Id. at
at 32.
32. "[T]he
“[T]he mere
mere fact
speaking,
is no
`search' at
fact
that an
an individual
individual has
has taken
taken measures
measures to
to restrict
some views
views of
of his
his activities
activities [does
[does not]
not]
that
restrict some
preclude an
an officer's
officer’s observations
observations from
public vantage
vantage point
point where
where he
he has
has aa right
to be
be
preclude
from aa public
right to
and which
which renders
renders the
the activities
activities clearly
clearly visible."
visible.” California
476 U.S.
U.S. 207,
207, 213
213
and
California v.
v. Ciraolo,
Ciraolo, 476
(1986). In
In other
other words,
words, aa person
person in
dwelling has
has no
no reasonable
of privacy
privacy
(1986).
in aa dwelling
reasonable expectation
expectation of
with respect
to what
what can
can be
be seen,
seen, heard,
heard, or
or smelled
smelled by
by someone
someone in
public place
place with
with
with
respect to
in aa public
one’s natural
natural senses.
senses. See
See Reeves,
Reeves, 484
484 F.3d
F.3d at
at 1254.
1254.
one's
Officer McNally
McNally made
made his
his observations
observations from
place freely
accessible to
to the
the
Officer
from aa place
freely accessible
public, the
the motel's
motel’s open-air
open-air walkway,
walkway, using
using only
only his
his unaided
unaided eyes.
Thus, his
his observations
observations
public,
eyes. Thus,
did not
not amount
amount to
to aa search
search under
under the
the Fourth
Fourth Amendment.
Amendment. See
See Reeves,
Reeves, 484
484 F.3d
F.3d at
at 1255
&
did
1255 &
n.20 (concluding
(concluding that
that aa detective's
detective’s "mere
“mere visual
visual observation
observation of
of objects
objects or
or people"
people” inside
inside
n.20
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an apartment—through
apartment—through aa window
window with
with bars
bars covered
in foliage—“was
not aa search
search under
under
an
covered in
foliage—"was not
the Fourth
Fourth Amendment").3
Amendment”). 3 That
is, he
he did
did not
not violate
violate Defendant's
Defendant’s reasonable
reasonable expectation
the
That is,
expectation
of privacy.
privacy. See
See United
States v.
Burns, 624
F.2d 95,
95, 100
100 (10th
(10th Cir.
Cir. 1980)
1980) (concluding
(concluding that
that
of
United States
v. Burns,
624 F.2d
an officer's
officer’s "eavesdropping"
“eavesdropping” outside
outside aa motel-room
motel-room door
door did
did not
not violate
violate defendants'
defendants’
an
reasonable expectations
of privacy,
privacy, because
because it
it is
is not
not "a
“a search
search when
when aa law
reasonable
expectations of
law enforcement
enforcement
officer makes
makes .. .. .. observations
observations from
vantage point
point he
he rightfully
occupies”).
officer
from aa vantage
rightfully occupies").
This
conclusion finds
robust support
support in
in the
the case
case law.
See Lewis,
Lewis, 38
38 F.4th
F.4th at
at 532,
This conclusion
finds robust
law. See
532,
536
(concluding that
that hotel
hotel guests
guests "could
“could [not]
[not] reasonably
reasonably expect
to be
be free
of dog
dog sniffs
sniffs
536 (concluding
expect to
free of
in the
the exterior
hallway,” because
because "[w]hile
“[w]hile it
it is
is true
true that
that hotel
hotel guests
guests have
have some
some legitimate
in
exterior hallway,"
legitimate
expectations
of privacy,
privacy, they
they cannot
cannot exclude
others from
hallway—particularly
expectations of
exclude others
from entering
entering aa hallway—particularly
where, as
as here,
here, an
an exterior
hallway is
accessible from
staircase leading
leading directly
directly to
to the
the
where,
exterior hallway
is accessible
from aa staircase
parking lot");
lot”); United
States v.
Mathias, 721
F.3d 952,
952, 954,
954, 958
(8th Cir.
Cir. 2013)
2013)
parking
United States
v. Mathias,
721 F.3d
958 (8th
(“[A]lthough Mathias
Mathias had
had aa subjective
subjective expectation
of privacy
privacy in
in the
the back
back yard,
yard, the
the
("[A]lthough
expectation of
[quarter-inch] gaps
gaps in
in the
the fence,
through which
which the
the back
back yard
yard could
could be
be seen
seen unaided,
unaided,
[quarter-inch]
fence, through
rendered the
the expectation
not one
one society
society is
is willing
willing to
to recognize
recognize as
as reasonable.");
reasonable.”); United
rendered
expectation not
United
States v.
Elkins, 300
300 F.3d
F.3d 638,
638, 643,
643, 654–55
(6th Cir.
Cir. 2002)
2002) (holding
(holding that
that an
an officer
officer did
did
States
v. Elkins,
654-55 (6th
not perform
perform aa search
search by
by peering
peering through
through an
an "exposed
“exposed gap
gap in
in the
the wall"—that
wall”—that was
was "less
“less
not
than an
an inch"
inch” wide—with
wide—with his
his "unaided
“unaided eye”
because the
the defendants'
defendants’ "reasonable
“reasonable
than
eye" because
3
Defendant argues
argues that
that Reeves
Reeves is
is "inapposite"
“inapposite” because
because it
concerned "officers
“officers
3 Defendant
it concerned
looking
looking in
in the
the windows
windows of
of aa dwelling
dwelling where
where the
the blinds
blinds had
had not
been closed."
closed.” Aplt.
Aplt.
not been
Br. at
at 35.
35. But
But that
that opinion
opinion is
still informative.
After all,
all, Defendant's
Defendant’s blinds
blinds were
were not
not
Br.
is still
informative. After
fully
and the
the window
window in
Reeves was
was partially
partially obscured
obscured by
by bars
bars covered
covered in
fully closed
closed and
in Reeves
in
foliage.
foliage.
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expectation
of privacy
privacy in
in the
the interiors
interiors of
of their
their businesses
businesses .. .. .. [did]
[did] not
not insulate
those
expectation of
insulate those
spaces against
against plain
plain view
view observation");
observation”); United
States v.
Fields, 113
113 F.3d
F.3d 313,
313, 318,
318, 321321–
spaces
United States
v. Fields,
22 (2d
(2d Cir.
Cir. 1997)
1997) (concluding
(concluding that
that defendants'
defendants’ reasonable
reasonable expectations
of privacy
privacy were
were
22
expectations of
not violated
violated when
when officers
officers observed
observed them
them bagging
bagging crack
crack cocaine
cocaine through
through aa "five“five- to
to sixsixnot
inch gap
gap beneath
beneath the
the venetian
venetian blinds"
blinds” from
an apartment
apartment "common
“common area,"
area,” because
because
inch
from an
“although the
the defendants
defendants could
could easily
have shielded
shielded their
their activities
activities from
public view,
view,
"although
easily have
from public
they failed
to take
take the
the simple
simple and
and obvious
obvious steps
steps necessary
necessary to
to do
do so");
so”); United
States v.
they
failed to
United States
v.
Pace, 955
F.2d 270,
270, 273,
273, 275-76
275–76 (5th
(5th Cir.
Cir. 1992)
(concluding that
that officers
officers were
were
Pace,
955 F.2d
1992) (concluding
“privileged to
to view
view the
the inside
inside of
of aa barn"
barn” because
because they
they were
were "standing
“standing in
in open
open fields,”
and
"privileged
fields," and
it was
was "of
“of no
no consequence"
consequence” that
that they
they needed
needed to
to "press
“press their
their faces”
up to
to aa "small
“small
it
faces" up
opening” to
to see
see inside);
inside); United
States v.
449 F.2d
F.2d 1355,
1356–59 (D.C.
(D.C. Cir.
Cir.
opening"
United States
v. Wright,
Wright, 449
1355, 1356-59
1971) (holding
(holding that
that "[t]here
“[t]here was
was no
no search"
search” where
where officers
officers saw
saw aa stolen
stolen transmission
transmission
1971)
through aa gap
gap in
in sliding
sliding garage
garage doors,
doors, because
because under
under the
the "plain
“plain view
view doctrine[],"
doctrine[],” "[t]he
“[t]he
through
police are
are free
to observe
observe circumstances
circumstances in
that are
are in
in ‘plain
view’ to
to the
the public"
public”
police
free to
in evidence
evidence that
`plain view'
(internal quotation
quotation marks
marks omitted));
omitted)); Ponce
Ponce v.
409 F.2d
F.2d 621,
623, 625
625 (9th
(9th Cir.
Cir.
(internal
v. Craven,
Craven, 409
621, 623,
1969) (holding
(holding that
that "officers
“officers did
did not
not intrude
intrude upon
upon any
any reasonable
reasonable expectation
of privacy
privacy ..
1969)
expectation of
by observing
observing with
with their
their eyes
the activities
activities visible
visible through
through the
the [partially
[partially open
open motel]
motel]
.. .. by
eyes the
window,” given
given that
that the
the officers
officers "were
“were lawfully
lawfully in
the parking
parking lot
of the
the motel,
motel, and
and
window,"
in the
lot of
merely observed
observed what
what was
was within
within their
their plain
plain view
view while
while standing
standing there");
there”); see
see also
also
merely
Minnesota v.
525 U.S.
U.S. 83,
104–05 (1998)
(1998) (Breyer,
(Breyer, J.,
concurring) (reasoning
(reasoning that
that
Minnesota
v. Carter,
Carter, 525
83, 104-05
J., concurring)
an
an officer
officer did
did not
not perform
perform an
an unreasonable
unreasonable search
search when
when he
he stood
stood in
“place used
used by
by the
the
in aa "place
public” and
and saw
saw respondents
respondents bagging
bagging cocaine
cocaine through
through aa "small
“small gap"
gap” in
the window
window
public"
in the
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blinds, because
because "[t]he
“[t]he precautions
precautions that
that the
the apartment's
apartment’s dwellers
dwellers took
took to
to maintain
maintain their
their
blinds,
privacy would
would have
have failed
in respect
respect to
to an
an ordinary
ordinary passerby
passerby standing
standing in
that place"
place”
privacy
failed in
in that
(internal quotation
quotation marks
marks omitted)).
omitted)).
(internal
Defendant’s counterarguments
counterarguments are
are again
again unconvincing.
unconvincing. He
He relies
relies on
on the
the leading
leading
Defendant's
Fourth Amendment
Amendment treatise,
treatise, which
which states
states that
that hotel
hotel dwellers'
dwellers’ "justified
“justified expectation
of
Fourth
expectation of
privacy” is
is "certainly"
“certainly” violated
violated when
when police
police engage
in "highly
“highly intrusive
intrusive snooping,"
snooping,” such
such
privacy"
engage in
as "keyhole-peeping,
“keyhole-peeping, transom-peeping,
transom-peeping, or
or looking
minute openings
openings in
covered
as
looking through
through minute
in covered
windows.” Wayne
Wayne R.
R. LaFave,
Search &
& Seizure:
Seizure: A
A Treatise
on the
Fourth Amendment
Amendment
windows."
LaFave, 1
1 Search
Treatise on
the Fourth
§§ 2.3(c)
2.3(c) at
at 793
(6th ed.
2020) (footnotes
(footnotes omitted
omitted and
and emphasis
added). But
But even
if the
the
793 (6th
ed. 2020)
emphasis added).
even if
author would
would consider
consider aa one-inch
one-inch gap
gap to
to be
be aa "minute"
“minute” opening,
opening, this
this appears
appears to
to be
be his
his
author
view of
of what
what the
the law
law should
should be
rather than
than aa summary
summary of
of the
the case
case law.
In particular,
particular, the
the
view
be rather
law. In
cases footnoted
to the
the "minute
“minute openings
openings in
in covered
covered windows"
windows” comment,
comment, see
see id.
at n.150,
n.150,
cases
footnoted to
id. at
were only
only aa 1997
1997 Minnesota
Minnesota Supreme
Court decision
decision reversed
reversed the
the next
next year
year by
by the
the
were
Supreme Court
and aa 1997
Circuit decision
decision holding
holding that
that there
there was
was
United States
Court 4 and
United
States Supreme
Supreme Court4
1997 Second
Second Circuit
no search
search when
when officers
officers looked
looked into
into an
an apartment
apartment through
through aa six-inch
six-inch opening
opening beneath
beneath
no
As shown
shown above,
above, all
all the
the federal
appellate authorities
authorities that
that we
we have
have found
some blinds.5
blinds. 5 As
some
federal appellate
found
point in
in the
the opposite
opposite direction
direction from
the minute-openings
minute-openings comment.
comment.
point
from the
4
See State v. Carter, 569 N.W.2d 169 (Minn. 1997), rev’d, 525 U.S. 83
4 See State v. Carter, 569 N.W.2d 169 (Minn. 1997), rev 'd, 525 U.S. 83
(1998).
(1998).
See Fields,
Fields, 113
113 F.3d
F.3d 313.
313. This
This case
case apparently
apparently was
was cited
by the
the treatise
treatise
55 See
cited by
because it
it cited
cited and
and distinguished
distinguished aa decision
by aa panel
panel of
of the
the Fifth
Fifth Circuit,
Circuit, United
because
decision by
United
States v.
Blount, 98
F.3d 1489,
1493, 1495
1495 (5th
(5th Cir.
Cir. 1996),
which held
held that
that there
there was
was
1996), which
States
v. Blount,
98 F.3d
1489, 1493,
search when
when the
the officers
officers looked
through aa "small
“small aperture"
aperture” in
in aa broken
broken window
window
aa search
looked through
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Next, Defendant
Defendant contends
contends that
that aa precedent
precedent of
of this
this court
court established
the broad
broad
Next,
established the
proposition that
that aa person
person has
has aa reasonable
reasonable expectation
of privacy
privacy if
if he
he "takes
“takes steps
steps .. .. .. to
to
proposition
expectation of
avoid snooping."
snooping.” Aplt.
Aplt. Br.
Br. at
at 34
34 (quoting
(quoting Pleasant
Pleasant v.
Lovell, 876
F.2d 787,
(10th Cir.
Cir.
avoid
v. Lovell,
876 F.2d
787, 802
802 (10th
1989)).
did not.
not. The
court said
said only
only that
that "one
“one who
who takes
takes steps
steps for
for the
secure disposition
disposition
1989)). It
It did
The court
the secure
of trash
by aa method
method reasonably
calculated to
to avoid
avoid snooping
snooping can
can have
have aa reasonable
reasonable
of
trash by
reasonably calculated
expectation
of privacy
privacy in
in the
the trash."
trash.” Pleasant,
Pleasant, 876
876 F.2d
F.2d at
at 802
(emphasis added).6
added). 6
expectation of
802 (emphasis
Because the
the situation
situation before
before us
us has
has nothing
nothing to
to do
do with
with trash—and
trash—and Defendant
Defendant left
left aa gap
gap in
in
Because
the curtains-this
curtains—this case
has no
no application
application here.
here.
the
case has
Finally,
Finally, Defendant
Defendant argues
argues that
that permitting
permitting this
this kind
of "late-night
“late-night peeping"
peeping” would
would
kind of
“invite much
much mischief,"
mischief,” paving
paving the
the way
way for
the government
government to
to "deploy
“deploy an
an army
army of
of drones
drones
"invite
for the
to hover
hover outside
outside the
the windows
windows of
of any
any hotel
hotel or
or motel
motel in
in the
the nation
nation in
in the
the middle
middle of
of the
the
.. .. .. to
night."
night.” Aplt.
Aplt. Reply
Reply Br.
Br. at
at 10.
We do
do not
not share
share that
that fear.
by drones,
drones, of
of course,
course, is
is
10. We
fear. Spying
Spying by
not aa use
use of
of the
the unaided
unaided senses.
senses.
not
pane covered
by plywood.
plywood. But
But that
that opinion
opinion was
was set
set aside
aside by
by the
the en
banc Fifth
Fifth Circuit,
Circuit,
pane
covered by
en banc
123 F.3d
F.3d 831
(5th Cir.
Cir. 1997).
1997).
123
831 (5th
6
that case,
case, aa confidential
confidential informant
informant provided
provided information
information from
from aa taxtax6 In
In that
protestor organization
organization to
to the
the Criminal
Criminal Investigation
Division of
of the
the IRS.
IRS. See
See
protestor
Investigation Division
Pleasant, 876
876 F.2d
F.2d at
at 789–91.
After the
the informant
informant was
was instructed
by the
the organization
organization
Pleasant,
789-91. After
instructed by
to take
take its
trash "to
“to her
her home
home and
and burn
burn it
in her
her fireplace”
so it
could not
not be
be searched
searched
to
its trash
it in
fireplace" so
it could
in the
the building
building dumpster,
dumpster, she
she let
let two
two IRS
agents "search
“search the
the trash
trash before
before she
she
in
IRS agents
destroyed it."
it.” Id.
Id. at
at 791,
(internal quotation
quotation marks
marks omitted).
omitted). Unlike
Unlike placing
placing trash
trash
destroyed
791, 802
802 (internal
“at curbside
curbside for
collection,” the
the court
court found
that this
this trash-disposal
trash-disposal method
method was
was
"at
for collection,"
found that
“purposely adopted
adopted for
privacy.” Id.
Id. at
at 802.
802. It
It therefore
therefore concluded
concluded that
that the
the "discarded
“discarded
"purposely
for privacy."
documents were
were entitled
to fourth
amendment protection."
protection.” Id.
Id.
documents
entitled to
fourth amendment
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Viewing the
the evidence
in the
the light
most favorable
to the
the government,
government, we
we conclude
conclude
Viewing
evidence in
light most
favorable to
that Officer
Officer McNally's
McNally’s conduct
conduct did
did not
not amount
amount to
to aa search
search under
under the
the Fourth
Fourth Amendment.
Amendment.
that
Therefore,
we do
do not
not reach
reach the
the parties'
parties’ harmless-error
harmless-error arguments.
arguments.
Therefore, we
C.
C.
The Dissent
Dissent
The
A few
words to
to respond
respond to
to the
the dissent.
dissent. The
The dissent
dissent asserts
asserts that
that this
this opinion
opinion breaks
breaks
A
few words
new ground
ground in
in permitting
permitting police
police surveillance.
surveillance. With
With all
all respect,
respect, it
it is
is the
the dissent
dissent that
that breaks
breaks
new
new ground.
ground. It
does not
not cite
cite aa single
single federal
appellate decision
decision holding
holding that
that aa police
police
new
It does
federal appellate
officer performed
performed aa search
search by
by making
making observations
observations using
using the
the officer's
officer’s natural
natural senses
senses
officer
while at
at aa place
place open
open to
to the
the public.
public. The
The dissent
dissent invokes
invokes the
the decision
decision in
in Katz
Katz v.
while
v. United
United
States, 389
389 U.S.
U.S. 347
347 (1967)
(1967) (holding
(holding that
that bugging
bugging aa public
public telephone
telephone booth
booth was
was aa search).
search).
States,
But as
as the
the Supreme
Court wrote
wrote in
in California
476 U.S.
U.S. 207,
207, 214
214 (1986)
(1986)
But
Supreme Court
California v.
v. Ciraolo,
Ciraolo, 476
(upholding visual
visual observation
observation from
airplane within
within navigable
navigable airspace),
airspace), Katz
Katz was
was "not
“not
(upholding
from airplane
aimed at
at simple
simple visual
visual observations
observations from
public place."
place.” That
That appears
appears to
to be
be the
the
aimed
from aa public
equivalent
of saying
saying that
that one
one has
has no
no reasonable
reasonable expectation
of privacy
privacy with
with respect
respect to
to
equivalent of
expectation of
visual observations
observations from
public place.
place. Katz
Katz would
would thus
thus be
be limited
limited to
to enhancements
to
visual
from aa public
enhancements to
our natural
natural senses.
senses.
our
To
be sure,
sure, the
the Supreme
Court may
may be
be willing
willing to
to apply
apply Katz
Katz to
to "public
“public places"
places”
To be
Supreme Court
that cannot
cannot be
be reached
reached with
with natural
natural human
human effort.
In Florida
Florida v.
Riley, 488
488 U.S.
U.S. 445
445
that
effort. In
v. Riley,
(1989), which
which upheld
upheld observations
observations of
of aa backyard
backyard from
helicopter at
at an
an altitude
altitude of
of 400
400
(1989),
from aa helicopter
feet
(within the
the navigable
navigable airspace
airspace for
helicopters), the
the plurality
plurality opinion
opinion noted
noted that
that there
there
feet (within
for helicopters),
was "nothing
“nothing in
in the
the record
record or
or before
before us
us to
to suggest
suggest that
that helicopters
helicopters flying
at 400
400 feet
are
was
flying at
feet are
sufficiently rare
rare in
in this
this country
country to
to lend
lend substance
substance to
to respondent's
respondent’s claim
claim that
that he
he reasonably
sufficiently
reasonably
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anticipated that
that his
his greenhouse
greenhouse would
would not
not be
be subject
subject to
to observation
observation from
that altitude,"
altitude,”
anticipated
from that
id.
at 451-52;
451–52; see
see also
also id.
at 454
454 (O'Connor,
(O’Connor, J.,
concurring) (indicating
(indicating that
that result
result would
would
id. at
id. at
J., concurring)
have been
been different
different if
if respondent
respondent had
had shown
shown that
that helicopter
helicopter flights
under 400
400 feet
are
have
flights under
feet are
sufficiently rare).
rare). The
police observation
observation in
this case,
case, however,
however, was
was from
place
sufficiently
The police
in this
from aa place
available to
to all.
all.
available
In
any event,
we are
are aware
aware of
of no
no appellate
appellate decision
decision that
that has
has suggested
suggested that
that data
data
In any
event, we
regarding the
the frequency
of passersby
passersby who
who look
look through
through gaps
gaps in
motel-room curtains
curtains or
or
regarding
frequency of
in motel-room
blinds could
reasonable expectation
of privacy.
privacy. And
And adopting
adopting that
that approach
approach
blinds
could establish
establish aa reasonable
expectation of
would raise
raise substantial
substantial questions.
questions. Curious
Curious youngsters
youngsters will
will always
always peer
peer in,
in, and
and adults
adults may
may
would
take aa peep
peep through
through the
the gap
gap to
to be
be sure
sure they
they are
are at
at the
the right
right room.
room. How
How often
often do
do such
such
take
observations occur?
occur? Does
Does the
the size
size of
of the
the gap
gap matter?
matter? Do
Do we
we need
need to
to collect
collect separate
separate
observations
statistics for
six-inch gaps
gaps and
and one-inch
one-inch gaps?
gaps? Even
with such
such data,
how are
are we
we to
to
statistics
for six-inch
Even with
data, how
determine what
what frequency
makes an
an expectation
of privacy
privacy unreasonable?
unreasonable? Of
Of particular
particular
determine
frequency makes
expectation of
importance, what
what are
are we
we supposed
supposed to
to tell
tell police
police officers
officers to
to give
give guidance?
guidance? As
As the
the
importance,
Supreme
Court stated
stated in
in New
New York
Belton, 453
453 U.S.
U.S. 454
454 (1981),
(1981), Fourth
Fourth Amendment
Amendment
Supreme Court
York v.
v. Belton,
protections "can
“can only
only be
be realized
realized if
if the
the police
police are
are acting
acting under
under aa set
set of
of rules
rules which,
which, in
in
protections
most instances,
makes it
it possible
possible to
to reach
correct determination
determination beforehand
beforehand as
as to
to
most
instances, makes
reach aa correct
whether an
an invasion
invasion of
of privacy
privacy is
is justified
justified in
in the
the interest
interest of
of law
at 458
458
whether
law enforcement,”
enforcement," id.
id. at
(internal
(internal quotation
quotation marks
marks omitted).
omitted). As
As the
the Court
Court explained:
explained:
A highly
highly sophisticated
sophisticated set
set of
of rules,
rules, qualified
qualified by
by all
all sorts
sorts of
of ifs,
ifs, ands,
ands,
A
and buts
buts and
and requiring
requiring the
the drawing
drawing of
of subtle
subtle nuances
nuances and
and hairline
hairline
and
facile minds
distinctions, may
may be
be the
the sort
sort of
of heady
heady stuff
stuff upon
upon which
which the
the facile
minds of
of
distinctions,
lawyers and
and judges
judges eagerly
but they
they may
may be
be literally
impossible of
of
lawyers
eagerly feed,
feed, but
literally impossible
field.
application by
by the
the officer
officer in
in the
the field.
application
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Id.
Id. (internal
(internal quotation
quotation marks
marks omitted).
omitted).
Perhaps there
there is
is aa way
way to
to draw
draw aa bright
bright line
line that
that would
would render
render the
the observation
observation in
Perhaps
in
this case
violation of
of the
the Fourth
Fourth Amendment
Amendment while
while providing
providing proper
proper consideration
consideration to
to
this
case aa violation
the balance
balance of
of the
the needs
needs of
of law
law enforcement
and the
the interest
privacy. But
But where,
where, or
or
the
enforcement and
interest in
in privacy.
even
how, to
to draw
draw this
this line
line is
is not
not obvious
obvious to
to us.
us. And
And anyway
anyway such
such aa standard
standard would
would be
be of
of
even how,
no help
help to
to Defendant.
Defendant. Under
Under the
the good-faith
good-faith exception
to the
the exclusionary
rule, we
we could
could
no
exception to
exclusionary rule,
not exclude
the evidence
obtained by
by the
the observation
observation in
this case,
case, where
where the
the officer's
officer’s
not
exclude the
evidence obtained
in this
observation was
was in
in compliance
compliance with
with ample
ample precedent
precedent permitting
permitting such
such an
an observation
observation
observation
from
public place
place and
and using
using only
only his
his natural
natural vision.
vision. See
See Davis
Davis v.
States, 564
from aa public
v. United
United States,
564
U.S.
U.S. 229,
229, 239-41
239–41 (2011)
(2011) (applying
(applying good-faith
good-faith exception
to the
the exclusionary
rule when
when
exception to
exclusionary rule
warrantless search
search was
was authorized
authorized by
by precedent
precedent at
at time
time of
of search).
search).
warrantless
III.
III.
CONCLUSION
CONCLUSION
We AFFIRM
AFFIRM Defendant's
Defendant’s convictions.
convictions.
We
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23-6210, United
States v.
23-6210,
United States
v. Watkins
Watkins
MORITZ,
MORITZ, Circuit
Circuit Judge,
Judge, dissenting.
dissenting.
Imagine you're
you’re taking
taking aa road
road trip
trip along
along Route
Route 66.
Weary after
after aa day
day of
of driving,
driving,
Imagine
66. Weary
from home.
you check
to aa motel
motel and
and finally
get to
to your
your room—your
room—your home
home away
away from
home.
you
check in
in to
finally get
You drop
drop your
your bags,
bags, shut
shut and
and lock
the door,
door, draw
draw the
the curtains,
curtains, and
and begin
begin to
to change
change
You
lock the
out of
of your
your dusty
dusty travel
travel clothes.
clothes. But
But you
you stop,
stop, alarmed,
alarmed, when
when you
you notice
notice an
an eye
out
eye
peering
peering through
through the
the small
small gap
gap you
you unknowingly
unknowingly left
left between
between the
the curtains.
curtains. Seeing
an
Seeing an
eye
pressed up
up to
to aa one-inch
one-inch gap
gap in
in the
the drapes
drapes "would
“would inspire
inspire most
most of
of us
us to—well,
to—well,
eye pressed
call the
the police."
police.” Florida
Florida v.
Jardines, 569
U.S. 1,
1, 99 (2013).
(2013). But
But according
according to
to the
the
call
v. Jardines,
569 U.S.
majority, that
that instinct
instinct is
is irrational
irrational because
because you
you have
have no
no reasonable
reasonable expectation
of
majority,
expectation of
privacy
privacy in
in your
your motel
motel room
room under
under these
these circumstances.
circumstances.
In my
my view,
view, Cameron
Cameron Watkins
Watkins reasonably
privacy in
the interior
of
In
reasonably expected
expected privacy
in the
interior of
his motel
motel room
room when
when he
he locked
locked the
the door
door and
and drew
the curtains.
curtains. So
when Officer
Officer
his
drew the
So when
Michael McNally
McNally positioned
positioned his
his face
close enough
to Mr.
Mr. Watkins's
Watkins’s motel-room
motel-room
Michael
face close
enough to
window to
to peer
peer through
through aa one-inch
one-inch gap
gap in
the curtains
curtains and
and see
see Mr.
Mr. Watkins
Watkins on
on the
the
window
in the
bed in
in aa state
state of
of undress,
undress, he
he conducted
conducted aa search.
search. The
The majority
majority claims
claims to
to apply
apply
bed
established
Fourth Amendment
Amendment principles
principles to
to reach
the opposite
opposite result.
result. But
But make
make no
no
established Fourth
reach the
mistake: the
the majority
majority breaks
breaks new
new ground,
ground, expanding
permissible surveillance
surveillance and
and
mistake:
expanding permissible
eroding
privacy. II respectfully
respectfully dissent.
dissent.
eroding privacy.
The
Fourth Amendment
Amendment guarantees
guarantees "[t]he
“[t]he right
right of
of the
the people
people to
to be
be secure
secure in
in
The Fourth
their persons,
persons, houses,
houses, papers,
papers, and
and effects,
against unreasonable
unreasonable searches
searches and
and
their
effects, against
seizures.” U.S.
U.S. Const.
Const. amend.
amend. IV.
IV. Rather
Rather than
than focus
on the
the curtilage
curtilage question
question under
under
seizures."
focus on
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formulation
the property-based
property-based approach
approach to
to the
the Fourth
Fourth Amendment,
Amendment, II apply
apply the
the Katz
Katz formulation
the
and start
start from
the premise
premise that
that "the
“the Fourth
Fourth Amendment
Amendment protects
protects people,
people, not
not places."
places.”
and
from the
Katz v.
States, 389
389 U.S.
U.S. 347,
347, 351
351 (1967);
(1967); see
see also
also United
States v.
Jones, 565
Katz
v. United
United States,
United States
v. Jones,
565
U.S. 400,
400, 409
409 (2012)
(2012) ("[T]he
(“[T]he Katz
Katz reasonable-expectation-of-privacy
reasonable-expectation-of-privacy test
test has
has been
been
U.S.
added to,
to, not
not substituted
substituted for,
the common-law
common-law trespassory
trespassory test."
test.” (cleaned
(cleaned up)).
up)). This
added
for, the
This
protection has
has limits,
limits, of
of course.
course. "What
“What aa person
person knowingly
to the
the public,
public,
protection
knowingly exposes
exposes to
even
his own
own home
home or
or office,
office, is
is not
not aa subject
subject of
of Fourth
Fourth Amendment
Amendment protection.
protection. But
But
even in
in his
what he
he seeks
seeks to
to preserve
preserve as
as private,
private, even
an area
area accessible
accessible to
public, may
may be
be
what
even in
in an
to the
the public,
constitutionally protected."
protected.” Katz,
Katz, 389
389 U.S.
U.S. at
at 351-52
351–52 (cleaned
(cleaned up)
up) (emphasis
(emphasis added).
added).
constitutionally
To ascertain
ascertain the
the scope
scope of
of this
this constitutional
constitutional protection,
protection, we
we apply
apply aa two-part
two-part
To
test. "The
“The first
is whether
whether the
the individual,
individual, by
by his
his conduct,
conduct, has
has ‘exhibited
an actual
actual
test.
first is
`exhibited an
(subjective) expectation
of privacy.'
privacy.’” Smith
Smith v.
Maryland, 442
442 U.S.
U.S. 735,
(1979)
(subjective)
expectation of
v. Maryland,
735, 740
740 (1979)
(quoting Katz,
Katz, 389
389 U.S.
U.S. at
at 361
361 (Harlan,
(Harlan, J.,
concurring)). "The
“The second
second question
is
(quoting
J., concurring)).
question is
whether the
the individual's
individual’s subjective
subjective expectation
of privacy
privacy is
is ‘one
that society
society is
is
whether
expectation of
`one that
prepared to
to recognize
recognize as
as reasonable.’”
Id. at
at 740–41
(cleaned up)
up) (quoting
(quoting Katz,
Katz, 389
389
prepared
reasonable.' Id.
740-41 (cleaned
U.S. at
at 361
361 (Harlan,
(Harlan, J.,
concurring)).
U.S.
J., concurring)).
Though not
not addressed
addressed by
by the
the majority,
majority, Mr.
Mr. Watkins
Watkins easily
satisfies the
the first
Though
easily satisfies
first
step. Even
Even the
the government
government acknowledges
acknowledges that
that "Mr.
“Mr. Watkins
Watkins may
may have
have had
had aa
step.
subjective expectation
of privacy
privacy in
in Room
Room 231
231 on
on account
account of
of its
and
subjective
expectation of
its locked
locked door
door and
attempted-to-be-covered window."
window.” Aplee.
Aplee. Br.
Br. 34.
34. Indeed,
Indeed, we
we have
have found
subjective
attempted-to-be-covered
found aa subjective
expectation
of privacy
privacy in
in an
an office
office where
where defendant
defendant "shut
“shut the
the door
door behind
behind him[]
him[] and
and
expectation of
covered the
the sidelight
sidelight window."
window.” United
States v.
Anderson, 154
154 F.3d
F.3d 1225,
1225, 1233
1233 (10th
(10th
covered
United States
v. Anderson,
22
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Cir.
Cir. 1998).
1998). Here,
Here, Mr.
Mr. Watkins
Watkins was
was inside
his motel
motel room,
room, behind
behind aa closed
closed and
and locked
locked
inside his
door, partially
partially unclothed
unclothed on
on aa bed
bed with
with the
the curtains
curtains drawn.
drawn. Having
Having clearly
clearly "sought
“sought to
to
door,
preserve [his
[his motel
motel room]
room] as
as private,"
private,” Bond
Bond v.
States, 529
U.S. 334,
334, 338
338
preserve
v. United
United States,
529 U.S.
740), Mr.
easily
(2000) (cleaned
(cleaned up)
up) (quoting
(quoting Smith,
Smith, 442
442 U.S.
U.S. at
at 740),
Mr. Watkins
Watkins easily
(2000)
demonstrated an
an actual
actual expectation
of privacy
privacy in
in his
his room.
room. On
On to
to step
step two.
two.
demonstrated
expectation of
Unlike the
the majority,
majority, II have
have no
no trouble
trouble concluding
concluding that
that Mr.
Mr. Watkins
Watkins also
also
Unlike
satisfies the
the second
second step
step of
of the
the Katz
Katz formulation.
court has
has recognized
recognized that
that
satisfies
formulation. This
This court
“[o]vernight guests
guests and
and joint
joint occupants
occupants of
of motel
motel rooms
possess reasonable
reasonable
"[o]vernight
rooms possess
expectations
of privacy
privacy in
the property
property on
on which
which they
they are
are staying."
staying.” United
States v.
expectations of
in the
United States
v.
Kimoana, 383
383 F.3d
F.3d 1215,
1221 (10th
(10th Cir.
Cir. 2004).
2004). To
be sure,
sure, motel
motel dwellers
dwellers can
can
1215, 1221
Kimoana,
To be
expect
less privacy
privacy in
in certain
certain respects
because they
they must
must share
share spaces
spaces with
with motel
motel
expect less
respects because
See United
States v.
Jackson, 588
F.2d 1046,
1046, 1052
employees
and other
other patrons.'
patrons. 1 See
employees and
United States
v. Jackson,
588 F.2d
1052
(5th Cir.
Cir. 1979)
1979) ("[D]espite
(“[D]espite the
the fact
that an
an individual['s]
individual[’s] Fourth
Fourth Amendment
Amendment rights
(5th
fact that
rights
do not
not evaporate
when he
he rents
motel room,
the extent
of the
the privacy
privacy he
he is
is entitled
do
evaporate when
rents aa motel
room, the
extent of
entitled
to reasonably
may very
very well
well diminish.").
diminish.”). But
But the
the existence
of common
spaces
to
reasonably expect
expect may
existence of
common spaces
outside of
of motel
motel rooms
rooms does
does not
not eliminate
all expectation
of privacy.
privacy. 11 Wayne
Wayne R.
R.
outside
eliminate all
expectation of
LaFave,
Search &
& Seizure
Seizure §§ 2.3(c)
2.3(c) (6th
(6th ed.
2024) ("[T]here
(“[T]here is
is no
no necessity
necessity to
to
LaFave, Search
ed. 2024)
conclude that
that apartment
apartment and
and hotel
hotel dwellers
dwellers must
must be
be deemed
deemed to
to have
have no
no justified
justified
conclude
expectation
of privacy
privacy against
against .. .. .. highly
highly intrusive
intrusive snooping
snooping merely
merely because
because they
they live
live
expectation of
under conditions
conditions requiring
requiring that
that others
others must
must be
be allowed
allowed to
to pass
pass their
their door.").
door.”).
under
this reason,
reason, the
the majority
majority finds
motel rooms
rooms "qualitatively
“qualitatively different
different
' Indeed,
Indeed, for
for this
finds motel
from typical
from
typical private
private homes"
homes” for
purposes of
of its
its curtilage
curtilage analysis.
analysis. Maj.
Maj. Op.
Op. 8.
for purposes
8.
1
3
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II consider
uncontroversial that,
that, because
because aa motel
motel room
temporary home
home
consider it
it uncontroversial
room is
is aa temporary
away from
home, you
you can
reasonably expect
privacy there.
there. See
See United
States v.
away
from home,
can reasonably
expect privacy
United States
v.
Hardy, 52
F.3d 147,
147, 149
(7th Cir.
Cir. 1995)
1995) ("The
(“The Fourth
Fourth Amendment
Amendment generally
generally forbids
149 (7th
forbids
Hardy,
52 F.3d
warrantless searches
searches of
of aa person's
person’s home.
home. A
A motel
motel room
occupied as
as aa temporary
temporary
warrantless
room occupied
residence receives
receives the
the same
same constitutional
constitutional protection."
protection.” (cleaned
(cleaned up));
up)); United
States v.
residence
United States
v.
Ramos, 12
F.3d 1019,
1019, 1023
1023 (11th
(11th Cir.
Cir. 1994)
(“Use of
of aa motel
motel room
Ramos,
12 F.3d
1994) ("Use
room for
for lodging
lodging
provides the
the same
same expectation
of privacy
privacy as
as does
does aa home.");
home.”); United
States v.
provides
expectation of
United States
v.
Baldacchino, 762
F.2d 170,
170, 175-76
175–76 (1st
(1st Cir.
Cir. 1985)
(“[W]e must
must assume
assume that
that
Baldacchino,
762 F.2d
1985) ("[W]e
[defendant] was
was aa [motel]
[motel] guest
guest and
and that
that he
he had
had the
the same
same right
right of
of privacy
privacy that
that one
one
[defendant]
would have
have against
against an
an intrusion
into one's
one’s private
private dwelling.").
dwelling.”). This
This is
true
would
intrusion into
is especially
especially true
given that
that the
the only
only portion
portion of
of aa motel
motel room
room typically
typically visible
visible from
window is
is the
the
given
from aa window
bedroom, unquestionably
unquestionably one
one of
of the
the most
most private
private areas
areas of
of aa home.
home. Society
recognizes
bedroom,
Society recognizes
that expectation
as reasonable
reasonable because
because "[w]e
“[w]e are
are at
at our
our most
most vulnerable
vulnerable when
when we
we are
are
that
expectation as
asleep”—“when we
we cannot
cannot sleep
sleep in
in our
our own
own home[,]
home[,] we
we seek
seek out
out another
another private
private
asleep"—"when
place to
to sleep,"
sleep,” like
like "a
“a hotel
hotel room."
room.” Minnesota
Minnesota v.
495 U.S.
U.S. 91,
(1990).
place
v. Olson,
Olson, 495
91, 99
99 (1990).
What’s more,
more, motel
motel rooms
generally comprise
comprise aa bathroom
bathroom and
and aa single
single room—a
room—a
What's
rooms generally
room that
that guests
guests typically
typically use
use for
some of
of the
the more
more intimate
intimate and
and private
private activities
activities of
of
room
for some
daily
daily life.
life. And
And so
so aa motel
motel room
room is
is "a
“a temporarily
temporarily private
private place
place whose
whose momentary
momentary
occupants’ expectations
of freedom
intrusion are
are recognized
recognized as
as reasonable."
reasonable.” Id.
Id.
occupants'
expectations of
freedom from
from intrusion
(quoting Katz,
Katz, 389
389 U.S.
U.S. at
at 361
361 (Harlan,
(Harlan, J.,
concurring)).
(quoting
J., concurring)).
Under the
the circumstances
circumstances presented
presented here,
here, II would
would hold
hold that
that society
society is
more than
than
Under
is more
prepared to
to recognize
Mr. Watkins's
Watkins’s subjective
subjective expectation
of privacy
privacy in
in his
his motel
motel
prepared
recognize Mr.
expectation of
4
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bedroom—with the
the door
door locked
locked and
and the
the curtains
curtains closed—as
closed—as reasonable.
See State
State v.
bedroom—with
reasonable. See
v.
Carter,
N.W.2d 169,
169, 177-78
177–78 (Minn.
(Minn. 1997)
(“People who
who close
close their
their doors
doors and
and
Carter, 569
569 N.W.2d
1997) ("People
window blinds
blinds .. .. .. do
do not
not knowingly
their activities
activities to
to the
the public."),
public.”), rev’d
on
window
knowingly expose
expose their
rev 'd on
other grounds
grounds sub
sub nom.
Minnesota v.
525 U.S.
U.S. 83
83 (1998).
(1998). It
It follows
that
other
nom. Minnesota
v. Carter,
Carter, 525
follows that
Officer McNally
McNally conducted
conducted aa search
search when
when he
he peered
peered through
through the
the one-inch
one-inch gap
gap in
in the
the
Officer
curtains. See
See 11 Wayne
Wayne R.
R. LaFave,
Search and
and Seizure
Seizure §§ 2.3(c)
2.3(c) (6th
(6th ed.
2024) ("To
(“To
curtains.
LaFave, Search
ed. 2024)
assert that
that the
the tenant
tenant in
in aa hotel
hotel .. .. .. has
has an
an expectation
of privacy
privacy in
in his
his place
place of
of
assert
expectation of
residence
to say
say very
very little
if that
that tenant
tenant is
is put
put to
to the
the choice
choice of
of papering
papering over
over his
his
residence is
is to
little if
else having
in.").
transom and
and stuffing
stuffing his
his keyhole
keyhole or
or else
having aa policeman
policeman look
look in.”).
transom
Resisting this
this conclusion,
conclusion, the
the majority
majority characterizes
characterizes the
the facts
here as
as requiring
Resisting
facts here
requiring
aa simple
simple application
application of
of plain-view
plain-view principles.
principles. That
Officer McNally
McNally visually
visually
That is,
is, Officer
observed Mr.
Mr. Watkins
Watkins from
public place
place without
without any
any kind
kind of
of aid,
aid, so
so no
no search
search
observed
from aa public
occurred. And
And relying
relying on
on aa lengthy
string cite,
cite, the
the majority
majority asserts
asserts that
that its
conclusion
occurred.
lengthy string
its conclusion
is
amply supported
supported by
by caselaw.
caselaw. Yet
Yet quantity
no substitute
substitute for
quality when
when
is amply
quantity is
is no
for quality
considering the
the reasonableness
of aa search.
search. Because
Because none
none of
of the
the cited
cited cases
cases present
present
considering
reasonableness of
factual
circumstances resembling
resembling the
the totality
totality of
of the
the facts
here, these
these cases
cases are
are not
not
factual circumstances
facts here,
persuasive. 22
persuasive.
At least two of the cited cases involved sounds and smells observed outside hotel
rooms. But
But sounds
sounds carry
carry and
and smells
smells waft,
waft, obviously
obviously justifying
justifying lowered
lowered expectations
of
rooms.
expectations of
privacy. See
See United
States v.
Burns, 624
F.2d 95,
100 (10th
(10th Cir.
Cir. 1980)
1980) (eavesdropping);
(eavesdropping);
privacy.
United States
v. Burns,
624 F.2d
95, 100
United
States v.
Lewis, 38
38 F.4th
F.4th 527,
(7th Cir.
Cir. 2022)
2022) (dog
(dog sniffs
sniffs in
in hotel
hotel room's
room’s
United States
v. Lewis,
527, 535–36
535-36 (7th
exterior
hallway). Several
cases involved
involved less-intimate
spaces that
that have
have aa lower
exterior hallway).
Several cases
less-intimate spaces
lower
expectation
of privacy
privacy than
than aa motel
motel bedroom.
bedroom. United
States v.
Mathias, 721
F.3d 952,
expectation of
United States
v. Mathias,
721 F.3d
952,
957–58
(8th Cir.
Cir. 2013)
2013) (fenced
(fenced backyard);
backyard); United
States v.
Elkins, 300
300 F.3d
F.3d 638,
653–55
957-58 (8th
United States
v. Elkins,
638, 653-55
(6th Cir.
Cir. 2002)
2002) (business
(business interior);
interior); United
States v.
449 F.2d
F.2d 1355,
1355, 1356-59
1356–59 (D.C.
(D.C.
(6th
United States
v. Wright,
Wright, 449
2
2 At least two of the cited cases involved sounds and smells observed outside hotel
55
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True, the
the Fourth
Fourth Amendment
Amendment does
does not
not "require
“require law
law enforcement
officers to
to
True,
enforcement officers
shield their
their eyes
when passing
passing by
by aa home
home on
on public
public thoroughfares."
thoroughfares.” Kyllo
Kyllo v.
shield
eyes when
v. United
United
States, 533
U.S. 27,
27, 32
32 (2001)
(2001) (quoting
(quoting California
476 U.S.
U.S. 207,
207, 213
213
States,
533 U.S.
California v.
v. Ciraolo,
Ciraolo, 476
(1986)). But
But this
this is
not aa plain-view
plain-view case—the
case—the drapes
drapes were
were closed.
closed. The
The Fourth
Fourth
(1986)).
is not
Amendment’s protection
protection should
should not
not depend
depend on
on one's
one’s ability
ability to
to perfectly
perfectly align
align pieces
pieces
Amendment's
of hanging
hanging fabric
to obscure
obscure the
the contents
contents of
of the
the room
someone pressing
pressing their
their
of
fabric to
room from
from someone
nose to
to the
the window.
window. Indeed,
if Mr.
Mr. Watkins
Watkins could
could have
have taken
taken some
some measure
measure that
that
nose
Indeed, even
even if
might have
have closed
closed the
the gap
gap in
in the
the window
window covering,
covering, the
the Fourth
Fourth Amendment
Amendment doesn't
doesn’t
might
require carrying
carrying clothespins
clothespins in
in carry-ons
carry-ons or
or similar
similar anticipatory
anticipatory actions.
actions. Plainly
Plainly
require
speaking, any
any reasonable
person would
would view
view aa stranger
stranger peering
peering through
through aa small
small crack
crack
speaking,
reasonable person
in the
the closed
closed curtains
curtains of
of their
their occupied
occupied motel
motel room
as aa Peeping
Peeping Tom,
not aa Curious
Curious
in
room as
Tom, not
simple
George. And
And although
although Officer
Officer McNally
McNally did
did not
not specifically
specifically testify
testify as
as such,3
such, 3 simple
George.
geometry dictates
dictates that
that he
he must
must have
have pressed
pressed his
his face
up to
to Mr.
Mr. Watkins's
Watkins’s window
window to
to
geometry
face up
room—
see both
both aa woman
woman in
and Mr.
Mr. Watkins
Watkins sitting
sitting on
on the
the bed—the
bed—the entire
see
in aa chair
chair and
entire room—
Cir. 1971)
1971) (garage).
(garage). Two
other cases
cases involved
involved police
police officers
officers looking
looking through
through window
window
Cir.
Two other
gaps larger
than the
the one-inch
one-inch gap
gap at
at issue
issue here,
here, putting
putting those
those cases
cases more
more firmly
plainfirmly in
in plaingaps
larger than
view territory.
territory. See
See United
States v.
Fields, 113
F.3d 313,
313, 318,
318, 321-22
321–22 (2d
(2d Cir.
Cir. 1997)
1997)
view
United States
v. Fields,
113 F.3d
(five(five- or
or six-inch
six-inch gap
gap in
in partially
partially raised
raised blinds
blinds that
that "was
“was sufficiently
sufficiently large
large to
to be
be clearly
clearly
visible from
the interior
interior of
of the
the room
room to
to anyone
anyone who
who cared
cared enough
about his
his privacy
privacy to
to
visible
from the
enough about
close the
the blinds");
blinds”); Ponce
Ponce v.
409 F.2d
F.2d 621,
624–25 (9th
(9th Cir.
Cir. 1969)
1969) (open
(open blinds).
blinds).
close
v. Craven,
Craven, 409
621, 624-25
Finally, another
another case
case said
said nothing
nothing at
at all
all about
about reasonable
of privacy
privacy and
and
Finally,
reasonable expectations
expectations of
instead addressed
addressed curtilage.
curtilage. See
See United
States v.
Pace, 955
F.2d 270,
270, 274-76
274–76 (5th
(5th Cir.
Cir.
instead
United States
v. Pace,
955 F.2d
1992) (concluding
(concluding barn
barn did
did not
not qualify
qualify as
as curtilage
curtilage or
or "business
“business curtilage").
curtilage”).
1992)
3
Officer McNally
McNally did
did not
not testify
testify at
at the
the suppression
suppression hearing
hearing at
at all;
all; by
by that
that
3 Indeed,
Indeed, Officer
leaving following
following his
point, the
the Oklahoma
Oklahoma City
City Police
Police Department
Department had
had placed
placed him
him on
on leaving
his
point,
arrest for
recording and
and possessing
possessing child
child pornography.
pornography. R.
R. vol.
vol. 1,
185–86 (citing
(citing Caroline
Caroline
arrest
for recording
1, 185-86
Sellers,
Arrested on
on Child
Porn Charge,
KFOR (Nov.
(Nov. 10,
10, 2022,
2022, 4:28
4:28
Charge, KFOR
Sellers, OKCPD
OKCPD Officer
Officer Arrested
Child Porn
PM), https://kfor.com/news/local/okcpd-officer-arrested-on-child-porn-charge/).
https://kfor.com/news/local/okcpd-officer-arrested-on-child-porn-charge/).
PM),
66
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through aa one-inch
one-inch gap
gap in
in the
the curtains.
curtains. For
a visual
visual representation
representation of
of how
how small
small this
this
through
For a
gap is,
here’s Officer
Officer McNally
McNally himself
at the
scene:
gap
is, here's
himself at
the scene;
32
11
Def.
Def. Ex.
Ex. 15
15 at
at 0;00:09-11.
0:00:09–11.
Beyond the
majority’s string
string cite,
cite, its
other caselaw
is no
no more
more helpful.
helpful. For
For
Beyond
the majority's
its other
caselaw is
relies on
instance, it
it relies
on Reeves
Reeves v.
v. Churchich,
where we
we found
found no
no Fourth
Fourth Amendment
instance,
Churchich, where
Amendment
violation when
when aa police
police officer
officer inserted
inserted aa rifle
through an
an open,
open, barred
barred window.
window. 484
484
violation
rifle through
F.3d 1244,1258-59
1244, 1258–59 (10th
(10th Cir.
Cir. 2007).
2007). But
But Reeves
Reeves is
is easily
distinguished, primarily
primarily
F.3d
easily distinguished,
because the
the plaintiffs
plaintiffs there
there alleged
alleged that
that aa search
search occurred
occurred when
when the
the officer's
officer’s rifle
rifle
because
“crossed the
the threshold
threshold of
of the
the home.”
Id. at
at 1253
1253 (cleaned
(cleaned up).
up). Because
Because the
the Reeves
Reeves
"crossed
home." Id.
77
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plaintiffs didn't
didn’t argue
argue that
that the
the officer's
officer’s observation
observation alone
alone qualified
qualified as
as aa search,
search,
plaintiffs
Reeves didn't
didn’t confront
confront the
the question
question presented
presented here.4
here. 4
Reeves
The majority
majority also
also invokes
invokes Ciraolo,
where the
the Supreme
Court held
held that
that law
law
The
Ciraolo, where
Supreme Court
enforcement’s
warrantless aerial
aerial observation
observation of
of marijuana
marijuana plants
plants inside
the
enforcement's warrantless
inside the
defendant’s fenced
backyard was
was not
not an
an unreasonable
unreasonable search.
search. 476
476 U.S.
U.S. at
at 209-10,
209–10,
defendant's
fenced backyard
213; see
see also
also Florida
Florida v.
Riley, 488
488 U.S.
U.S. 445,450-51
445, 450–51 (1989)
(1989) (plurality
(plurality opinion)
opinion)
213;
v. Riley,
(following
(following Ciraolo
and holding
holding that
that helicopter
helicopter flight
was not
not aa search
search because
because
Ciraolo and
flight was
defendant "could
“could not
not reasonably
have expected
that his
his greenhouse
greenhouse was
was protected
protected
defendant
reasonably have
expected that
from public
from
public or
or official
official observation
observation from
helicopter” flying
at an
an altitude
altitude commonly
commonly
from aa helicopter"
flying at
used by
by the
the public).
public). In
so holding,
holding, the
the Court
Court was
was unpersuaded
unpersuaded by
by "the
“the mere
mere fact
that
used
In so
fact that
an individual
has taken
taken measures
measures to
to restrict
some views
views of
of his
his activities,"
activities,” pointing
pointing
an
individual has
restrict some
out that
that the
the fence
at issue
issue "might
“might not
not shield
shield [the
[the backyard]
backyard] from
the eyes
of aa citizen
citizen
out
fence at
from the
eyes of
or aa policeman
policeman perched
perched on
on the
the top
top of
of aa truck
truck or
or aa two-level
two-level bus."
bus.” Id.
Id. at
at 213
213 (emphasis
(emphasis
or
added). Here,
Here, however,
however, Mr.
Mr. Watkins
Watkins took
took the
the only
only measures
measures available
available to
to restrict
restrict
added).
views of
of his
his activities
activities in
in his
his motel
motel bedroom:
bedroom: shutting
shutting the
the door
door and
and closing
closing the
the
views
curtains. Moreover,
Moreover, in
in relying
relying on
on Ciraolo,
the majority
majority ignores
ignores its
its noteworthy
noteworthy
curtains.
Ciraolo, the
Even if Reeves had concerned a plain-view issue, it is factually distinct. The
window was
was open,
open, and
and the
the plaintiff
plaintiff had
had left
the blinds
blinds open,
open, only
only shutting
shutting them
them after
after
window
left the
the officer
officer inserted
rifle through
through the
the open
open window.
window. Reeves,
Reeves, 484
484 F.3d
F.3d at
at 1248-49
1248–49
the
inserted aa rifle
(explaining that
that in
in response
response to
to seeing
seeing rifle
rifle barrel
barrel "through
“through the
the open
open but
but barred
barred
(explaining
window,” plaintiff
plaintiff "reached
“reached up[
up[ and]
and] closed
closed the
the blinds").
blinds”). There
was no
no allegation
allegation
window,"
There was
that the
the bars
bars on
on the
the window
window functioned
as anything
anything other
other than
than aa security
security mechanism.
mechanism.
that
functioned as
Id. And
And despite
despite mentions
mentions of
of foliage,
this court
court described
described the
the "bars
“bars covered
covered in
in
Id.
foliage, this
foliage,”
not the
the window
window covered
in foliage.
Id. at
at 1255
1255 n.20
n.20 (emphasis
(emphasis added).
added). Thus,
Thus,
foliage," not
covered in
foliage. Id.
despite the
the blinds,
blinds, bars,
bars, and
and foliage,
the interior
of the
the plaintiffs'
plaintiffs’ room
was "clearly
“clearly
room was
despite
foliage, the
interior of
visible” through
through the
the open
open window.
window. Id.
Id. (quoting
(quoting Ciraolo,
476 U.S.
U.S. at
at 213).
213).
visible"
Ciraolo, 476
4
4 Even if Reeves had concerned a plain-view issue, it is factually distinct. The
88
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limitations—not only
only did
did the
the officers
officers observe
observe the
the defendant's
defendant’s backyard
backyard from
the
limitations—not
from the
“public vantage
vantage point"
point” of
of "public
“public navigable
navigable airspace,"
airspace,” but
but they
they did
did so
so "in
“in aa
"public
physically nonintrusive
nonintrusive manner."
manner.” Id.
Id. II would
would conclude
conclude that
that aa "public
“public vantage
vantage point"
point”
physically
does not
not encompass
standing close
close enough
to aa motel
motel room
room window
window to
to peer
peer through
through aa
does
encompass standing
enough to
one-inch
one-inch crack
crack in
in the
the drapes.
drapes. And
And even
if it
it did,
did, any
any reasonable
person would
would be
be
even if
reasonable person
hard-pressed to
to characterize
characterize such
such aa stance
stance as
as "physically
“physically nonintrusive."
nonintrusive.”
hard-pressed
Thus, despite
despite the
the majority's
majority’s suggestion
suggestion to
to the
the contrary,
contrary, Katz
Katz is
is perfectly
perfectly
Thus,
relevant because
because what
what we
we have
have here
here is
is not
not aa "simple
“simple visual
visual observation[]."
observation[].” Id.
Id. at
at 214.
214.
relevant
Although he
he was
was present
present in
in aa public
public place,
place, Officer
Officer McNally
McNally broke
broke basic
basic privacy
privacy
Although
norms by
by placing
placing his
his face
to the
the window.
window. We
We have
have acknowledged
acknowledged that
that using
using such
such
norms
face to
“extraordinary methods"
methods” to
to observe
observe someone,
someone, even
in aa public
public space,
space, can
can infringe
infringe on
on
"extraordinary
even in
of privacy.
privacy. United
States v.
Billings, 858
858 F.2d
F.2d 617,
aa reasonable
reasonable expectation
expectation of
United States
v. Billings,
617, 618
618
(10th Cir.
Cir. 1988).
In Billings,
Billings, we
we allowed
allowed that
that aa person
person could
could have
have aa reasonable
(10th
1988). In
reasonable
expectation
of privacy
privacy "within
“within the
the enclosed
portion of
of [a
[a public
public bathroom]
bathroom] stall."
stall.” Id.
Id.
expectation of
enclosed portion
Although in
in that
that case
case we
we concluded
concluded that
that an
an officer
officer who
who saw
saw contraband
contraband taped
taped to
to the
the
Although
defendant’s leg
while the
the defendant
defendant was
was in
in aa public
public bathroom
bathroom stall
stall had
had not
not performed
performed
defendant's
leg while
search, we
we did
did so
so because
because the
the contraband
was "plainly"
“plainly” visible
visible "in
“in the
the one-foot
one-foot
aa search,
contraband was
open area
area between
between the
the stall
stall and
and the
the floor”
and the
the officer
officer observed
observed from
“a place
place
open
floor" and
from "a
where patrons
patrons are
are normally
normally found.”
Id. And
And we
we distinguished
distinguished cases
where "officer[s]
“officer[s]
where
found." Id.
cases where
us[ed] extraordinary
methods to
to peer
peer over
over aa partition
partition or
or down
down into
bathroom stall
stall in
in
us[ed]
extraordinary methods
into aa bathroom
order to
to see
see what
what no
no ordinary
ordinary observer
observer could
could otherwise
otherwise see."
see.” Id.
Id.
order
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We are
are not
not alone
alone in
drawing such
such distinctions.
distinctions. In
In United
States v.
the
We
in drawing
United States
v. White,
White, the
Eighth
Circuit relied
relied on
on the
the same
same principles
principles to
to analyze
analyze an
an officer's
officer’s "observations
“observations [of
[of
Eighth Circuit
the defendant]
defendant] from
the common
area of
of the
the [public]
[public] restroom
by looking
looking through
through the
the
the
from the
common area
restroom by
gap [between
[between the
the stall
stall door
and the
the wall]
wall] from
from aa distance."
distance.” 890
F.2d 1012,
1012, 1015
(8th
gap
door and
890 F.2d
1015 (8th
Cir. 1989)
1989) (emphasis
(emphasis added).
added). The
court stressed
stressed that
that the
the officer
officer "did
“did not
not peer
peer in
in
Cir.
The court
‘knothole
through the
the gap"
gap” or
or "look
“look under
under or
or over
over the
the bathroom
bathroom stall
stall door."
door.”
`knothole fashion’
fashion' through
Id.
Id. With
With that
that in
in mind,
mind, the
the Eighth
Circuit held
held that
that the
the officer
officer did
did not
not violate
violate the
the
Eighth Circuit
defendant’s reasonable
of privacy
privacy because
because "[s]he
“[s]he did
did not
not position
position herself
herself
defendant's
reasonable expectation
expectation of
in any
any way
way that
that would
would be
be unexpected
unexpected by
by someone
someone using
using the
the restroom."
restroom.” Id.
Id.
in
Just
as you
you wouldn't
wouldn’t expect
to see
see someone
someone standing
standing close
close enough
to aa gap
gap in
Just as
expect to
enough to
in
bathroom stall
stall to
to fully
observe the
the person
person inside,
inside, you
you wouldn't
wouldn’t expect
to see
see
aa bathroom
fully observe
expect to
someone standing
standing close
close enough
to aa motel-room
motel-room window
window to
to peer
peer through
through aa one-inch
one-inch
someone
enough to
gap in
in the
the curtains
curtains and
and see
see the
the entire
room. That
is not
not the
the behavior
behavior of
of an
an "ordinary
“ordinary
gap
entire room.
That is
patron,” Billings,
Billings, 858
F.2d at
at 618,
618, or
or something
something an
an "occupant
“occupant of
of the
the [room]
[room] would
would
patron,"
858 F.2d
reasonably expect,”
F.2d at
at 1015
1015 (quoting
(quoting People
People v.
Kalchik, 407
407 N.W.2d
N.W.2d
reasonably
expect," White,
White, 890
890 F.2d
v. Kalchik,
627, 631
631 (Mich.
(Mich. Ct.
Ct. App.
App. 1987)).
1987)).
627,
Before concluding,
concluding, we
we pause
pause to
to note
note that
that the
the majority's
majority’s list
list of
of rhetorical
rhetorical
Before
questions is
is beside
beside the
the point.
point. We
We need
need not
not consider
consider whether
whether it
it would
would be
be aa search
search to
to
questions
look through
through curtains
curtains that
that were
were slightly
slightly more
more open
open than
than the
the one-inch
one-inch gap
gap at
at issue
issue
look
here, let
let alone
alone whether
whether the
the curiosity
curiosity of
of children
children sufficiently
sufficiently undermines
undermines the
the
here,
otherwise-obvious expectation
that the
the public
public will
will not
not be
be peering
peering through
through small
small gaps
gaps
otherwise-obvious
expectation that
left in
in curtains.
curtains. Nor
Nor are
are we
we concerned
concerned with
with drawing
drawing bright-line
bright-line rules
rules to
to guide
guide police
police
left
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officers. "The
“The Court
Court has
has ‘consistently
bright-line rules,
rules, instead
officers.
`consistently eschewed
eschewed bright-line
instead
emphasizing
the fact-specific
nature of
of the
the reasonableness
reasonableness inquiry.'"
inquiry.’” United
States v.
emphasizing the
fact-specific nature
United States
v.
Morales, 961
961 F.3d
F.3d 1086,
1086, 1092
1092 (10th
(10th Cir.
Cir. 2020)
2020) (quoting
(quoting Ohio
Robinette, 519
U.S.
Morales,
Ohio v.
v. Robinette,
519 U.S.
33, 39
39 (1996)).
(1996)).
33,
In
In sum,
sum, by
by relying
relying almost
almost entirely
on the
the fact
that McNally
McNally peeped
peeped from
entirely on
fact that
from aa
public place,
place, the
the majority
majority seems
seems to
to have
have forgotten
that Mr.
Mr. Watkins
Watkins is
required to
to
public
forgotten that
is required
show only
only that
that his
his "subjective
“subjective expectation
of privacy
privacy is
is ‘one
that society
society is
prepared
show
expectation of
`one that
is prepared
to recognize
as reasonable.’”
Smith, 442
442 U.S.
U.S. at
at 740–41
(cleaned up)
up) (quoting
(quoting Katz,
Katz,
to
recognize as
reasonable.'" Smith,
740-41 (cleaned
389 U.S.
U.S. at
at 361
361 (Harlan,
(Harlan, J.,
concurring)). II would
would posture
posture that
that society
society is
is more
more than
than
389
J., concurring)).
prepared to
to recognize
recognize that
that no
no one
one (other
(other than
than the
the occupant)
occupant) should
should be
be that
that close
close to
to aa
prepared
motel room’s
window, let
alone close
close enough
to peer
peer between
between closed
closed curtains.5
curtains. 5 II
motel
room's window,
let alone
enough to
therefore reject
reject the
the majority's
majority’s characterization
of this
this case
case as
as being
being about
about plain
plain view
view
therefore
characterization of
5
The State
of Oklahoma
Oklahoma might
might be
be surprised
surprised to
to learn
learn that
that the
the majority's
majority’s opinion
opinion
5 The
State of
risks undermining
undermining its
its Peeping
Peeping Tom
statute. The
statute provides:
provides:
risks
Tom statute.
The statute
Every
person who
who hides,
hides, waits[,]
waits[,] or
or otherwise
otherwise loiters
loiters in
in the
the vicinity
vicinity of
of any
any
Every person
private dwelling
dwelling house,
house, apartment
apartment building,
building, any
any other
other place
place of
of residence,
or
private
residence, or
in the
the vicinity
vicinity of
of any
any locker
locker room,
room, dressing
dressing room,
room, restroom[,]
restroom[,] or
or any
any other
other
in
place where
where aa person
person has
has aa right
right to
to aa reasonable
reasonable expectation
of privacy,
privacy,
place
expectation of
with the
the unlawful
unlawful and
and willful
willful intent
intent to
to watch,
watch, gaze,
gaze, or
or look
upon any
any person
person
with
look upon
in aa clandestine
clandestine manner,
manner, shall,
shall, upon
upon conviction,
conviction, be
be guilty
guilty of
of aa
in
misdemeanor.
misdemeanor.
Okla. Stat.
tit. 21,
21, §§ 1171(A).
1171(A). Note
Note that
that the
the statute
statute does
does not
not explicitly
list hotel
hotel or
or motel.
motel.
Okla.
Stat. tit.
explicitly list
And, under
under the
the majority's
majority’s approach,
approach, aa hotel
hotel or
or motel
motel room
room can't
can’t qualify
qualify under
under the
the
And,
statute’s catch-all
catch-all as
as "any
“any other
other place
place where
where aa person
person has
has aa right
to aa reasonable
statute's
right to
reasonable
expectation
of privacy."
privacy.” Id.;
Id.; cf.
cf. also
also Durant
Durant v.
State, 188
P.3d 192,
194 (Okla.
(Okla. Crim.
Crim.
expectation of
v. State,
188 P.3d
192, 194
App. 2008)
2008) (holding
(holding that
that §§ 1171(B)
1171(B) does
does not
not "cover[]
“cover[] the
the clandestine
clandestine taking
taking of
of
App.
photographs of
of aa person
person who
who is
is in
in aa public
public place"
place” because
because criminal
criminal statute
statute was
was limited
limited to
to
photographs
places where
where there
there is
is aa reasonable
of privacy).
privacy).
places
reasonable expectation
expectation of
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and public
public access.
access. That
an unsupported
unsupported expansion
of
and
That characterization
characterization results
results in
in an
expansion of
permissible surveillance
surveillance and
and an
an erosion
beyond recognition
of Fourth
Fourth Amendment
Amendment
permissible
erosion beyond
recognition of
would reverse
reverse the
the district
district court's
court’s suppression
suppression ruling
based on
on the
the
privacy rights.6
rights. 6 II would
privacy
ruling based
common-sense view
view that
that Americans
Americans reasonably
reasonably expect
privacy while
while in
in their
their motel
motel
common-sense
expect privacy
rooms with
with doors
doors closed
closed and
and locked
and curtains
curtains drawn.?
drawn. 7
rooms
locked and
The majority
majority briefly
briefly posits
posits that
that even
if aa search
search occurred
occurred here,
here, suppression
suppression is
is not
not
66 The
even if
warranted under
under the
the good-faith
good-faith exception
to the
the exclusionary
rule. II do
do not
not address
address this
this
warranted
exception to
exclusionary rule.
speculative position
position except
to note
note that
that the
the government
government never
never raised
raised such
such an
an argument,
argument,
speculative
except to
either
below or
or on
on appeal,
appeal, and
and the
the district
district court
court did
did not
not discuss
discuss it.
it.
either below
7
Because II dissent
dissent from
the majority's
majority’s only
only holding,
holding, II need
need not
not reach
reach the
the other
other
7 Because
from the
issues Watkins
Watkins raises
on appeal.
appeal.
issues
raises on
12
12
28a
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Case 5:22-cr-00325-R
Appellate Case: 23-6210
Document 159 Filed 10/14/25 Page 29 of 29
Document: 75-2 Date Filed: 10/14/2025 Page: 1
UNITED
STATES
COURT
TENTH
CIRCUIT
UNITED S
TATES C
OURT OF APPEALS
APPEALS FOR THE T
ENTH C
IRCUIT
Christopher M.
M. Wolpert
Wolpert
Christopher
Clerk of
of Court
Clerk
Court
Byron White
White United
United States
Courthouse
Byron
States Courthouse
1823 Stout
1823
Stout Street
Street
Denver, Colorado
Colorado 80257
Denver,
80257
(303) 844-3157
844-3157
(303)
Clerk@ca10.uscourts.gov
Clerk@cal 0.uscourts.gov
Jane K.
K. Castro
Jane
Castro
Chief
Chief Deputy
Deputy Clerk
Clerk
October 14,
2025
October
14, 2025
Jonathan Reppucci
Reppucci
Jonathan
Reppucci Law
Law Firm
Firm
Reppucci
1544 Race
1544
Race Street
Street
Denver, CO
CO 80206
80206
Denver,
RE:
RE:
23-6210,
United States
States v.
v. Watkins
Watkins
23-6210, United
5:22-CR-00325-R-1
Dist/Ag
docket:
5:22-CR-00325-R-1
Dist/Ag docket:
Dear Counsel:
Counsel:
Dear
Enclosed is
copy of
of the
the opinion
opinion of
of the
the court
issued today
today in
in this
this matter.
matter. The
court has
has
Enclosed
is aa copy
court issued
The court
entered judgment
judgment on
on the
the docket
docket pursuant
pursuant to
to Fed.
Fed. R.
R. App.
App. P.
P. Rule
Rule 36.
36.
entered
filed within
14 days
Pursuant to
to Fed.
Fed. R.
R. App.
App. P.
P. 40(d)(1),
40(d)(1), any
any petition
petition for
for rehearing
must be
be filed
within 14
days
Pursuant
rehearing must
after entry
entry of
of judgment.
judgment. Please
Please note,
note, however,
however, that
that if
the appeal
appeal is
is aa civil
which the
the
after
if the
civil case
case in
in which
United States
or its
its officer
officer or
or agency
agency is
party, any
any petition
petition for
for rehearing
must be
be filed
United
States or
is aa party,
rehearing must
filed
within 45
45 days
days after
after entry
entry of
of judgment.
judgment. Parties
Parties should
should consult
consult both
both the
the Federal
Federal Rules
Rules and
and
within
local
rules of
of this
this court
court with
with regard
regard to
to applicable
applicable standards
standards and
and requirements.
particular,
local rules
requirements. In
In particular,
petitions
for
rehearing
may
not
exceed
3900
words
or
15
pages
in
length,
and
no
answer is
petitions for rehearing may not exceed 3900 words or 15 pages in length, and no answer
is
permitted unless
unless the
the court
court enters
an order
order requiring
requiring aa response.
response. See
See Fed.
Fed. R.
R. App.
App. P.
P. Rule
Rule 40
40
permitted
enters an
further information
and 10th
10th Cir.
Cir. R.
R. 40
40 for
for further
information governing
governing petitions
petitions for
for rehearing.
rehearing.
and
Please contact
contact this
this office
office if
you have
have questions.
Please
if you
questions.
Sincerely,
Sincerely,
---
6
Christopher M.
M. Wolpert
Christopher
Wolpert
Clerk of
of Court
Court
Clerk
cc:
cc:
Jacquelyn
Mather Hutzell
Hutzell
Jacquelyn Mather
CMW/mlb
CMW/mlb
29a
29a
/•___
APPENDIX B
APPENDIX
B
Case 5:22-cr-00325-R Document 56 Filed 01/18/23 Page 1 of 6
IN THE
THE UNITED
UNITED STATES
FOR THE
IN
STATES DISTRICT
DISTRICT COURT
COURT FOR
THE
WESTERN DISTRICT
DISTRICT OF
OKLAHOMA
WESTERN
OF OKLAHOMA
UNITED STATES
OF AMERICA,
UNITED
STATES OF
AMERICA,
)
)
)
)
)
)
)
)
)
Plaintiff,
Plaintiff,
vv..
CAMERON
WATKINS,
CAMERON WATKINS,
Defendant.
Defendant.
No. CR-22-325-R
CR-22-325-R
No.
ORDER
ORDER
On December
December 13,
2022, the
the Court
Court heard
heard argument
argument regarding
Defendant Cameron
Cameron
On
13, 2022,
regarding Defendant
Watkins’s Motion
Motion to
to Suppress
Evidence (Doc.
(Doc. No.
No. 32).
32). At
At the
the conclusion
of that
that hearing,
hearing,
Watkins's
Suppress Evidence
conclusion of
the undersigned
undersigned ordered
ordered the
the parties
parties to
to submit
submit supplemental
supplemental briefing
briefing addressing
addressing new
new
the
arguments that
that had
had been
been made
made during
during the
the hearing
hearing and
and the
the question
question of
of good
good faith,
and the
the
arguments
faith, and
parties have
have complied.
complied. (See
(See Doc.
Doc. Nos.
Nos. 48,
48, 51).
Upon consideration
consideration of
of the
the filings,
the Court
Court
parties
51). Upon
filings, the
DENIES Defendant's
Defendant’s Motions
Motions to
to Suppress
DENIES
Suppress Evidence.
Evidence.
In the
early morning
In
the early
morning hours
hours of
of October
October 8,
8, 2021,
2021, Oklahoma
Oklahoma City
City Police
Police Department
Department
officers arrived
arrived at
at the
the OakTree
OakTree Inn
and Suites—a
motel featuring
corridors with
with
officers
Inn and
Suites—a motel
featuring exterior
exterior corridors
direct car-to-room
car-to-room access—to
access—to investigate
investigate an
an alleged
alleged carjacking
carjacking that
that had
had taken
taken place
place hours
hours
direct
earlier
in the
the motel's
motel’s parking
parking lot.
(Doc. No.
No. 32,
32, at
at 1;
Doc. No.
No. 37-2,
37-2, at
at 5).
While visiting
visiting
earlier in
lot. (Doc.
1; Doc.
5). While
with motel
motel staff
staff members,
members, officers
officers were
were informed
that an
an individual
matching the
the suspect's
suspect’s
with
informed that
individual matching
description was
was in
in Room
Room 231.
231. When
When officers
officers arrived
arrived at
at Room
Room 231,
231, Officer
Officer Michael
Michael
description
McNally was
was able
able to
to observe
observe through
through aa window
window an
an individual
individual matching
matching the
the suspect's
suspect’s
McNally
extended magazine
lying
description as
as well
well as
as aa "black
“black semi-automatic
semi-automatic handgun
handgun with
with an
an extended
magazine lying
description
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Case 5:22-cr-00325-R Document 56 Filed 01/18/23 Page 2 of 6
next to
to the
the suspect."
suspect.” (Doc.
(Doc. No.
No. 37,
37, at
at 2).
2). That
That individual
was later
identified as
as Defendant
Defendant
next
individual was
later identified
Cameron Watkins,
Watkins, aa convicted
convicted felon.
(See Doc.
Doc. No.
No. 1,
1, at
at 5-6).
Among other
other counts,
counts,
Cameron
felon. (See
5-6). Among
Watkins is
is charged
charged with
with being
being aa felon
in possession
possession of
of aa firearm
in violation
violation of
of 18
U.S.C.
Watkins
felon in
firearm in
18 U.S.C.
§§ 922(g)(1).
(See Doc.
Doc. No.
No. 44).
44). His
His Motion
Motion to
to Suppress
concerns the
the handgun,
handgun,
922(g)(1). (See
Suppress Evidence
Evidence concerns
extended
magazine, and
and other
other evidence
by local
local law
law enforcement.
(See Doc.
Doc. No.
No.
extended magazine,
evidence recovered
recovered by
enforcement. (See
37-1, at
at 7).
37-1,
7).
Defendant contends
that the
the evidence
should be
be suppressed
suppressed because:
because: (1)
(1) Officer
Officer
Defendant
contends that
evidence should
McNally conducted
conducted an
an illegal
illegal search
search when
when he
he observed
observed Defendant
Defendant and
and the
the handgun
handgun
McNally
through an
an exterior
window; (2)
(2) the
the search
search warrant—issued
warrant—issued after
after Defendant's
Defendant’s arrest—was
arrest—was
through
exterior window;
based on
on Officer
Officer McNally's
McNally’s illegal
illegal search
search and
and material
material misrepresentations
misrepresentations to
to the
the court;
court; and
and
based
(3) the
the good
good faith
should not
not apply
apply to
to justify
justify the
the deficient
deficient search
search warrant
warrant because
because
(3)
faith exception
exception should
the warrant's
warrant’s affiant
affiant was
was grossly
grossly negligent
negligent in
in obtaining
obtaining the
the warrant.
warrant. (Doc.
(Doc. No.
No. 32;
32; Doc.
Doc.
the
No.
No. 48,
48, at
at 4).
4). Plaintiff
Plaintiff argues,
argues, in
part, that
that the
the evidence
should not
not be
be suppressed
suppressed because
because
in part,
evidence should
in aa publicly
Officer McNally
McNally legally
legally observed
observed Defendant
Defendant and
and the
the handgun
handgun while
while standing
standing in
publicly
Officer
accessible hallway.
hallway. (Doc.
(Doc. Nos.
Nos. 37,
37, at
at 6-8;
Doc. No.
No. 51,
accessible
6-8; Doc.
51, 7-8).
7-8).
There
is little
little doubt
that officers
officers acted
acted reasonably
in responding
responding to
to Room
Room 231.
231. They
They
There is
doubt that
reasonably in
were investigating
investigating aa carjacking
carjacking that
that had
had taken
taken place
place in
in the
the motel's
motel’s parking
parking lot,
and motel
motel
were
lot, and
staff members
members had
had directed
directed them
them to
to the
the room
room because
because an
an individual
individual matching
matching the
the suspect's
suspect’s
staff
description was
was inside.
inside. Even
Even if
if the
the Court
Court assumes
assumes that
that Defendant
Defendant had
had aa reasonable
reasonable
description
expectation
of privacy
privacy inside
inside the
the motel
motel room,
the Court
Court is
is satisfied
satisfied that
that Officer
Officer McNally
McNally
expectation of
room, the
did
did not
not perform
perform an
an illegal
illegal search
search in
in violation
violation of
of the
the Fourth
Fourth Amendment.
Amendment. The
The Tenth
Tenth Circuit
Circuit
Court of
of Appeals
Appeals has
has concluded
concluded that
that "no
“no Fourth
Fourth Amendment
Amendment search
search occurs
occurs if
if aa police
police
Court
2
2
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Case 5:22-cr-00325-R Document 56 Filed 01/18/23 Page 3 of 6
officer makes
makes observations
observations while
while in
public place
place .. .. .. even
if the
the objects
objects he
he observes
observes lie
officer
in aa public
even if
lie
within an
an area
area protected
protected by
by the
the Fourth
Fourth Amendment."
Amendment.” Reeves
Reeves v.
484 F.3d
F.3d 1244,
within
v. Churchich,
Churchich, 484
1244,
1254 (10th
(10th Cir.
Cir. 2007)
2007) (citing
(citing United
States v.
Dunn, 480
480 U.S.
U.S. 294,
294, 304
304 (1987)).
(1987)). Here,
Here, the
the
1254
United States
v. Dunn,
exterior
walkway leading
to Room
Room 231
231 was
was open
open to
to the
the public
public and
and undoubtedly
undoubtedly used
used by
by
exterior walkway
leading to
other motel
motel patrons
patrons and
and staff-officers
staff—officers were
were not
not required
required to
to pass
pass through
through aa fence
or barrier
barrier
fence or
other
to reach
reach the
the room.
room. Regardless
Regardless of
of whether
whether the
the window's
window’s curtains
curtains were
were completely
completely open,
open, or
or
to
partially open,
open, the
the Court
Court finds
that Officer
Officer McNally
McNally did
did not
not violate
violate the
the Fourth
Fourth Amendment
Amendment
partially
finds that
when he
he looked
looked through
through the
the window
window and
and observed
observed Mr.
Mr. Watkins
Watkins and
and the
the handgun
handgun inside
when
inside
Room 231
231 because
because he
he was
was standing
standing in
in aa public
public place.
place.
Room
In
contesting the
the veracity
veracity of
of the
the search
search warrant,
warrant, Defendant
Defendant contends
contends that
that Detective
Detective
In contesting
Vinny
Vinny Astrino
Astrino misrepresented
misrepresented in
in his
his affidavit
affidavit that
that an
an officer
officer had
had observed
observed Mr.
Mr. Watkins
Watkins
with aa handgun
handgun next
next to
to him
him "via
“via an
an open
open curtain,"
curtain,” because,
because, in
in fact,
the curtain
curtain was
was only
only
with
fact, the
“partially opened."
opened.” (Doc.
(Doc. No.
No. 33,
33, at
at 2).
2). The
The Court
Court finds
this distinction
distinction is
is immaterial
immaterial
"partially
finds this
because the
the search
search warrant
warrant would
would still
still have
have issued
issued had
had Detective
Detective Astrino
Astrino described
described the
the
because
curtains as
as "partially
“partially open."
open.” See
See United
States v.
Ingram, 720
F. App'x
App'x 461,
461, 470
470 (10th
(10th Cir.
Cir.
curtains
United States
v. Ingram,
720 F.
2017) ("If
(“If ‘a
warrant would
would have
have issued
issued in
but-for world
world where
where the
the attesting
attesting officer
officer
2017)
`a warrant
in aa but-for
faithfully
represented the
the facts,’
then we
we can
can dismiss
dismiss the
the contested
contested omission
omission as
as
faithfully represented
facts,' then
immaterial.”) (quoting
(quoting United
States v.
Herrera, 782
F.3d 571,
575 (10th
(10th Cir.
Cir. 2015)).
2015)).
immaterial.")
United States
v. Herrera,
782 F.3d
571, 575
Defendant alternatively
alternatively asserts
asserts that
that the
the search
search warrant
warrant was
was invalid
because
Defendant
invalid because
Detective Astrino
Astrino omitted
omitted from
his affidavit
affidavit that
that the
the victim
victim had
had not
not positively
positively identified
Detective
from his
identified
Mr.
Mr. Watkins
Watkins when
when officers
officers first
showed her
her aa photograph
photograph of
of aa suspect.
suspect. (Doc.
(Doc. No.
No. 33,
33, at
at 3).
3).
first showed
Plaintiff counters
that Detective
Detective Astrino
Astrino did
did not
not include
that information
information in
in his
his affidavit
affidavit
Plaintiff
counters that
include that
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because the
the suspect
suspect in
the photograph
photograph was
was not
not Mr.
Mr. Watkins,
Watkins, but
but rather
another individual
individual
because
in the
rather another
named Lamont
Montgomery. (Doc.
(Doc. No.
No. 37-2,
37-2, at
at 5;
5; Doc.
Doc. No.
No. 43,
43, at
at 10,
31-32; Doc.
Doc. No.
No.
named
Lamont Montgomery.
10, 13,
13, 31-32;
51,
at 5;
5; Doc.
Doc. No.
No. 51-3,
between officers
officers from
22:00-22:30 ("we
(“we showed
showed her
her
51, at
51-3, exchange
exchange between
from 22:00-22:30
Montgomery, we
we have
have not
not shown
shown her
her Watkins")).
Watkins”)). In
In his
his affidavit,
affidavit, Detective
Detective Astrino
Astrino states
states
Montgomery,
that the
the victim
victim "positively
“positively identified
Cameron as
as the
the male
male who
who had
had kidnapped
kidnapped her
her and
and
that
identified Cameron
taken the
the vehicle."
vehicle.” (Doc.
(Doc. No.
No. 37-1,
37-1, at
at 4).
4). This
positive identification
identification is
is documented
documented on
on
taken
This positive
body camera
camera footage
(see Doc.
Doc. Nos.
Nos. 51-4,
as well
well as
as in
in the
the Oklahoma
Oklahoma City
City Police
Police
body
footage (see
51-4, 52-6)
52-6) as
Incident Report
Report (Doc.
(Doc. No.
No. 37-2,
37-2, at
at 5).
the Court
Court finds
that Detective
Detective Astrino's
Astrino’s
Incident
5). Therefore,
Therefore, the
finds that
omission
omission of
of the
the initial
initial negative
negative identification—wherein
identification—wherein the
the victim
victim was
was shown
shown aa photograph
photograph
of someone
someone other
other than
than Cameron
Cameron Watkins—was
Watkins—was not
not aa material
material misrepresentation
misrepresentation to
to the
the
of
court.
court.
Finally, Defendant
Defendant suggests
suggests that
that Detective
Detective Astrino
Astrino acted
acted recklessly
recklessly and
and with
with gross
gross
Finally,
negligence
negligence
in obtaining
obtaining the
the search
search warrant
warrant because
because he
he swore
swore "that
“that all
all the
the information
in
information in
in
the warrant
warrant [was]
[was] accurate,"
accurate,” but
but "never
“never interacted”
with Officer
Officer McNally
McNally or
or read
read the
the
the
interacted" with
reports. (Doc.
(Doc. No.
No. 48,
48, at
at 4).
4). In
the hearing,
hearing, Detective
Detective Astrino
Astrino was
was asked
asked by
by Defendant's
Defendant’s
reports.
In the
counsel:
counsel:
Q. Would
Would you
you say
say Officer
Officer McNally
McNally is
is aa trustworthy
trustworthy person?
person?
Q.
A. Never
Never interacted
interacted with
with him.
him.
A.
(Doc. No.
No. 43,
43, at
at 50:1-2).
This exchange
does not
not definitively
definitively imply
imply that
that Detective
Detective Astrino
Astrino
(Doc.
50:1-2). This
exchange does
never had
had any
any interaction
interaction with
with Officer
Officer McNally.
McNally. Rather,
Rather, it
it could
simply mean
mean that
that
never
could simply
Detective Astrino
Astrino did
did not
not know
McNally well
well enough
to vouch
vouch for
his trustworthiness.
trustworthiness.
Detective
know McNally
enough to
for his
Nevertheless, at
at the
the Motion
Motion to
to Suppress
Evidence hearing,
hearing, Detective
Detective Astrino
Astrino explained
Nevertheless,
Suppress Evidence
explained
4
4
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Case 5:22-cr-00325-R Document 56 Filed 01/18/23 Page 5 of 6
that he
he was
was on
on the
the scene—hours
scene—hours after
after Mr.
Mr. Watkins's
Watkins’s arrest—when
arrest—when he
he learned
that Officer
Officer
that
learned that
McNally had
had observed
observed aa handgun
handgun in
in Room
Room 231:
231:
McNally
Long
story short,
short, there
there was
was aa standoff
standoff and
and eventually
both people
people inside
the
Long story
eventually both
inside the
room were
were taken
taken into
custody. Both
Both were
were transported
transported to
to Oklahoma
Oklahoma County
County
room
into custody.
jail and
and booked
booked in,
in, but
but no
no firearm
at that
that point
point had
had been
been recovered
recovered when
when the
the
jail
firearm at
two had
had stepped
stepped out
out of
of the
the apartment—or
apartment—or the
the hotel
hotel room.
as the
the
two
room. So
So as
investigators,
we
showed
up
on
scene.
Like
I
said,
we
were
briefed
on
it,
took
investigators, we showed up on scene. Like I said, we were briefed on it, took
description of
of it,
and went
went back
back to
to the
the Oklahoma
Oklahoma City
City police
police headquarters,
headquarters,
description
it, and
drafted aa search
search warrant
warrant for
the motel
motel room,
No. 231.
231. II went
went to
to the
the chambers
chambers
drafted
for the
room, No.
of Judge
Hammond and
and presented
presented the
the search
search warrant
warrant to
to Judge
Hammond.
of
Judge Hammond
Judge Hammond.
(Doc. No.
No. 43,
43, at
at 42:21
42:21 —
– 43:7).
43:7). When
When asked
asked whether
whether he
he "principally
“principally rel[ied]
rel[ied] on
on testimony
testimony
(Doc.
and reports
officers at
at the
the scene,"
scene,” Detective
Detective Astrino
Astrino answered
answered "[c]orrect."
“[c]orrect.” (Doc.
(Doc. No.
No.
and
reports from
from officers
43, at
at 45:17-19).
45:17-19). On
On cross-examination,
cross-examination, defense
defense counsel
counsel questioned
questioned Detective
Detective Astrino
Astrino as
as
43,
to whether
whether he
he relied
on information
information provided
provided by
by Officer
Officer McNally
McNally as
as the
the basis
basis for
the search
search
to
relied on
for the
warrant:
warrant:
Q. Mr.
Mr. McNally
McNally was
was purely
purely the
the main
main determinate
of who
who you
you
Q.
determinate of
relied on
on for
this
warrant;
is
that
correct?
relied
for this warrant; is that correct?
A. As
As far
as seeing
seeing the
the handgun
handgun inside
inside of
of the
the room,
room, yes.
yes.
A.
far as
(Doc. No.
No. 43,
43, at
at 50:
(Doc.
50: 7-10).
7-10).
Under the
the collective
collective knowledge
knowledge doctrine,
also known
as the
the "fellow
“fellow officer"
officer” rule,
rule,
Under
doctrine, also
known as
the Tenth
Tenth Circuit
Circuit has
has held
held "that
“that law
officers may
may pool
pool their
their information
and
information and
the
law enforcement
enforcement officers
that reasonable
reasonable suspicion
suspicion is
is to
to be
be determined
on the
the basis
basis of
of the
the collective
collective knowledge
of
that
determined on
knowledge of
all
all the
the officers
officers involved."
involved.” United
States v.
Hinojos, 107
F.3d 765,
(10th Cir.
Cir. 1997)
1997)
United States
v. Hinojos,
107 F.3d
765, 768
768 (10th
(citation omitted).
omitted). In
short, the
the doctrine
doctrine allows
allows the
the "reasonable
“reasonable suspicion
suspicion or
or probable
probable cause
(citation
In short,
cause
of one
one officer
officer [to]
[to] be
be imputed
imputed to
to the
the acting
acting officer."
officer.” United
States v.
Pickel, 863
863 F.3d
F.3d 1240,
of
United States
v. Pickel,
1240,
1249
(10th Cir.
Cir. 2017).
2017). While
While it
it is
is not
not clear
clear which
which officer,
officer, or
or officers,
officers, told
told Detective
Detective Astrino
Astrino
1249 (10th
55
34a
34a
Case 5:22-cr-00325-R Document 56 Filed 01/18/23 Page 6 of 6
about the
the gun,
it is
that Detective
Detective Astrino
gathered information
the officers
officers at
at
about
gun, it
is evident
evident that
Astrino gathered
information from
from the
the scene.
scene. There
There is
no evidence
that any
any officers
officers involved
the
is no
evidence that
involved in
in this
this investigation
investigation distrusted
distrusted
Officer
McNally or
had any
to believe
believe he
he was
was lying
his observation
observation of
of the
the
Officer McNally
or had
any reason
reason to
lying regarding
regarding his
handgun.
handgun.
At the
the time
time that
that Detective
Detective Astrino
Astrino drafted
drafted his
his affidavit,
affidavit, officers
officers had
had informed
him
At
informed him
that: (1)
(1) the
the individual
individual they
they had
had arrested
arrested was
was Cameron
Cameron Watkins;
(2) Watkins
Watkins was
was aa
that:
Watkins; (2)
Room 231.
convicted felon;
and (3)
(3) aa handgun
handgun had
had been
been observed
next to
to Watkins
Watkins inside
inside Room
231.
felon; and
convicted
observed next
The Court
Court is
satisfied that
that by
by visiting
visiting the
the scene
scene and
and conversing
conversing with
with fellow
The
is satisfied
fellow officers,
officers,
probable cause
was imputed
imputed to
to Detective
Detective Astrino
Astrino in
in requesting
the search
search warrant.
warrant.
probable
cause was
requesting the
Moreover, upon
upon execution
of the
the search
search warrant,
warrant, aa handgun
handgun matching
matching the
the description
Moreover,
execution of
description
provided by
by Officer
McNally was
was located
Room 231.
231.
Officer McNally
in Room
provided
located in
Accordingly, the
the Court
Court finds
finds that
the evidence
evidence seized
seized in
Room 231
231 is
is admissible
admissible
Accordingly,
that the
in Room
against Defendant
Defendant at
at trial.
trial. For
For the
the reasons
set forth
forth herein,
Defendant’s Motions
Motions to
to
herein, Defendant's
against
reasons set
Suppress
(Doc. Nos.
Nos. 32,
32, 48)
and "Motion
“Motion for
for Franks
Franks Hearing"
Hearing” (Doc.
(Doc. No.
No. 33)
33) are
are DENIED.
DENIED.
Suppress (Doc.
48) and
IT IS
day of
of January
January 2023.
2023.
IS SO
SO ORDERED this 18d'
18th day
----(0
c
DAVID L. RUSSELL
UNITED STATES DISTRICT JUDGE
6
6
35a
35a
APPENDIX C
APPENDIX
C
ÿÿÿÿÿÿÿDocument:
ÿ87
ÿÿÿÿÿDate
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ÿ05/11/2026
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))*""**ÿ
ÿÿÿÿÿÿÿÿÿÿPlaintiff
!"#$%&$''ÿ-(ÿAppellee,
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No.
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ORDER
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Before
PHILLIPS,
McHUGH,
A*'71*ÿHARTZ,
7 BÿTYMKOVICH,
CDEF57ÿDMATHESON,
7 69ÿ175
44516ÿDG
72H7ÿMORITZ,
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Appellate Case: 23-6210
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LMMNOOPQNÿSPTNUÿVWXYVZ[ÿÿÿÿÿDocument:
\]^_`NaQUÿ87
bcÿÿÿÿÿDate
\PQNÿFiled:
deONfUÿ05/11/2026
[ghZZhV[VYÿÿÿÿÿPage:
iPjNUÿ5gÿ
Appellate Case: 23-6210
01230456ÿ89 ÿ ÿÿ9ÿÿ
MORITZ,
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already
23-6210, United States v. Watkins
40a
40a
&''())*+(ÿ-*.(/ÿ0123045ÿÿÿÿÿDocument:
6789:(;+/ÿ87
<=ÿÿÿÿÿDate
6*+(ÿFiled:
>?)(@/ÿ05/11/2026
5AB44B0503ÿÿÿÿÿPage:
C*D(/ÿ63ÿ
Appellate Case: 23-6210
2345ÿ4564ÿ7468969ÿ4 ÿ ÿ389ÿ4537ÿ67ÿÿ48ÿ8ÿ45ÿ 8787ÿ
73438ÿthat
4564ÿAmericans
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9 7ÿand
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677ÿplain
638ÿview,
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37 69ÿconcern
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64ÿbright-line
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45 "5ÿthe
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its
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# 9ÿgrant
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5638"ÿen8ÿbanc.
68ÿ
protections.
With that standard top of mind, this case should turn on the common-sense
ÿ
0ÿ
2
41a
41a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.