Search & Seizure: Do you have privacy on your balcony?

policeman frowning

policeman frowningOn September 7, 2011, the Court of Special Appeals decided, in the criminal law case of McGurk v. Maryland, that an overnight guest has a reasonable expectation of privacy on the balcony of her host’s house.  Ms. McGurk was on a balcony in Ocean City in the early morning hours when an Ocean City police officer, having smelled the odor of marijuana, spotted her and walked up to the balcony, uninvited.  She was arrested and searched.  The search incident to the arrest revealed marijuana and cocaine and immediately found herself in the criminal law system.

Normally, a home is a constitutionally protected area that the police need a search warrant to enter and search for evidence of a crime. The issues before the court were whether the balcony is part of that protected area and whether McGurk, as a guest, was entitled to claim that protection. This is a good case to illustrate when the police can search your property, and what having a “reasonable expectation of privacy” means in criminal law.

The Supreme Court in Minnesota v. Olson, 495 U.S. 91 (1990) has ruled that an overnight guest has a reasonable expectation of privacy in the host’s home.  In McGurk, the Court held that the balcony was considered part of the home itself, which gave rise to a reasonable expectation of privacy. The court considered the placement of furniture on the balcony, its visibility from the street, and how it was customarily used by the owner and his guests.  The court concluded that the balcony was not open to the public and hence there was a subjective expectation of privacy.

In McGurk, the Court stated that a delivery person would not come onto the balcony unless invited. The court examined where on the property a casual visitor might be expected to enter uninvited.  For instance, the homeowner impliedly consents to have members of the public enter onto a front porch to reach a doorbell. There is no reasonable expectation of privacy in those areas. The court will consider whether there are physical barriers, such as fences, or signs such as “No Trespassing” or “Private Property” in making its determination. The court also took into consideration that the police entered at 3:15 a.m. stating that one wouldn’t expect to have uninvited visitors on the balcony at that hour. Ultimately the Court held there was a reasonable expectation of privacy for Mr. McGurk. 

Therefore, the evidence against her cannot be used in her criminal trial.  Deciding whether one has a reasonable expectation of privacy is often a threshold question in criminal law to decide if the police can search or not. The State argued that there were exigent circumstances.  Exigent circumstances, such as a fleeing felon, imminent destruction of evidence or danger, are often important in criminal law cases.  They can create an exception to the requirement that the police obtain a search warrant prior to entry into a protected area.  Here the state argued that the marijuana would be destroyed prior to the issue of a warrant.  The court held that the exigent circumstances exception was not applicable in this case because the officer didn’t learn of any exigent circumstances until after he entered into the constitutionally protected area. The Court of Special Appeals held that the motion to suppress should have been granted. This keeps the evidence obtained as a result of the illegal search out and will likely lead to an acquittal of the defendant. There won’t be much evidence to use in her criminal trial, so she will likely go free.

Next Steps

Want to know more? Discover what you need to know about Maryland criminal defense cases. Click here to see our Free Legal Consumer Guide to Criminal Law in Maryland and get answers to your questions today. Know your options. Be informed. Protect yourself.

Need a criminal defense attorney? Please contact us for a consultation today if you need an experienced criminal defense lawyer in Waldorf and Lexington Park for your criminal charge.

Like our blog? Subscribe to our email newsletter and stay informed!

policeman frowning

About Southern Maryland Law


Andrews, Bongar, Gormley & Clagett is one of the oldest and largest law firms in Southern Maryland. We have been serving clients here for over 50 years. 


We have more attorneys and a larger staff than most other local law firms, so we can handle a wider variety of legal matters. Each attorney concentrates his or her practice in a few key areas, so you can be assured of the expertise you need.


But we are not so big that we forget about personal service! Your legal matter is unique, and requires a personalized approach. We will always remember that. If you have a legal issue, contact us today to schedule your consultation.