Document Type


Publication Date



Defendant-appellant Derrick Hayes ("Hayes") appeals from a January 10, 2007 judgment of conviction and sentence entered in the United States District Court for the District of Vermont (Sessions III, C.J.), following a guilty plea to one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The court imposed a sentence of time served, a term of home confinement of 6 months, and a term of supervised release of 3 years.

Prior to Hayes's guilty plea, the District Court had denied, in a May 5, 2006 Amended Opinion and Order, Hayes's motion to suppress evidence seized by police officers in and near his residence and to dismiss the indictment. The District Court's ruling resulted from its conclusions, inter alia, that (1) the police canine's initial sniff and alert to the possible presence of narcotics was not an unreasonable search because Hayes did not possess a reasonable privacy interest in the air in front of his residence containing the scent of narcotics; (2) Hayes did not have a reasonable expectation of privacy in a vegetated area approximately 65 feet from the rear of his residence, where a black bag containing narcotics was detected and seized by the police canine; and (3) the police officer's inspection and opening of the black bag containing narcotics was not a search and seizure implicating the protections of the Fourth Amendment because Hayes lacked a reasonable expectation of privacy in the bag's contents.

On appeal, Hayes challenges these conclusions. Hayes's principal claim is that the area of scrub brush where the black bag containing cocaine was discovered by the police canine was within the "curtilage" of his home, and the canine's search of that area constituted an unlawful search for purposes of the Fourth Amendment. For 141*141 the reasons that follow, we agree with the District Court's denial of Hayes's motion to suppress and therefore will not disturb the judgment of conviction and sentence.


551 F.3d 138 (2008)

UNITED STATES of America, Appellee, v. Derrick HAYES, Defendant-Appellant.

Docket No. 07-0063-cr.

United States Court of Appeals, Second Circuit.

Argued: May 14, 2008.

Decided: December 24, 2008.

New York Law School location: FIle #3678, Box #153