This installment of the Search and Seizure Corner will discuss curtilage. Recently, I received an inquiry about curtilage and its impact on officers walking onto a driveway of a residence to check the VIN on a vehicle parked on the driveway. Officers knew the residence and had located stolen vehicles at the residence and on the driveway. The question concerned the officers’ ability to enter the driveway of the residence and check the vehicle’s VIN without a warrant.
As such, I felt compelled to write this training article to address all things curtilage. This article will define and discuss curtilage and provide relevant curtilage case law from the United States Supreme Court, the 6th, 7h, and 10th Circuit Court of Appeals, and the Colorado Supreme Court.
Disclaimer
I am not an attorney and make no claim to be an attorney. I developed these scenarios based on my 38 years of law enforcement experience, my professional application of the Fourth Amendment (based on case law) in the field as a law enforcement officer, and my extensive study of case law pertaining to search and seizure.
I developed and am providing this presentation for information only. I make no claim that my interpretations and perceptions of case law provided in the answers to the scenarios are correct in any or all circumstances. All government agents and any other person gathering information from this presentation should consult their respective law enforcement agencies, City Attorney’s Office, District Attorney’s Office, State Attorney General’s Office, or United States Attorney’s Office for their interpretation and application of this information.
How do the Court and courts define curtilage?
Below are excerpts from various Court opinions that define curtilage:
The United States Supreme Court, in its Oliver v. United States, 466 U.S. 170 (1984) opinion wrote:
The curtilage is the area to which extends the intimate activity associated with the “sanctity of a man’s home and the privacies of life…” and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. (Oliver v. United States, 466 U.S. 170 [1984])
The United States Supreme Court, in its California v. Ciraolo, 476 U. S. 207, 213 (1986) opinion stated, “curtilage is the area surrounding the home that is ‘intimately linked to the home, both physically and psychologically,’ and is where ‘privacy expectations are most heightened.’”
The Court, in its Florida v. Jardines (2013) wrote this about curtilage:
We therefore regard the area ‘immediately surrounding and associated with the home’—what our cases call the curtilage—as ‘part of the home itself for Fourth Amendment purposes’…. While the boundaries of the curtilage are generally ‘clearly marked,’ the ‘conception defining the curtilage’ is at any rate familiar enough that it is ‘easily understood from our daily experience.’ Here there is no doubt that the officers entered it: The front porch is the classic exemplar of an area adjacent to the home and ‘to which the activity of home life extends.’
The Court, in its Collins v. Virginia (2018) opinion provided further clarification concerning curtilage:
The “‘conception defining the curtilage’ is . . . familiar enough that it is ‘easily understood from our daily experience.’” Jardines, 569 U. S., at 7 (quoting Oliver, 466 U. S., at 182, n. 12). Just like the front porch, side garden, or area “outside the front window,” Jardines, 569 U. S., at 6, the driveway enclosure where Officer Rhodes searched the motorcycle constitutes “an area adjacent to the home and ‘to which the activity of home life extends,’” and so is properly considered curtilage, id., at 7 (quoting Oliver, 466 U. S., at 182, n. 12)…. So long as it is curtilage, a parking patio or carport into which an officer can see from the street is no less entitled to protection from trespass and a warrantless search than a fully enclosed garage. In physically intruding on the curtilage of Collins’ home to search the motorcycle, Officer Rhodes not only invaded Collins’ Fourth Amendment interest in the item searched, i.e., the motorcycle, but also invaded Collins’ Fourth Amendment interest in the curtilage of his home.
The United States Supreme Court, in its United States v. Dunn, 480 U.S. 294 (1987) opinion, provided four factors to help determine curtilage:
Extent-of-curtilage questions should be resolved with particular reference to the following four factors, at least to the extent that they bear upon whether the area claimed to be curtilage is so intimately tied to the home itself that it should be placed under the home’s “umbrella” of protection: (1) the proximity of the area to the home; (2) whether the area is within an enclosure surrounding the home; (3) the nature and uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by passersby. (United States v. Dunn, 480 U.S. 294 [1987])
U.S. v Knapp (10th Cir., 1993) applied the Dunn rationale when it found DEA officers who walked into the unfenced home of a backyard and smelled the odor of marijuana coming from inside the residence did not violate curtilage. Below is an excerpt of the 10th Circuit’s opinion.
Mr. Knapp next contends the drug enforcement agents violated his Fourth Amendment rights by going into the unfenced portion of Mr. Knapp’s yard without a warrant. Only the curtilage of the home warrants the Fourth Amendment protections that attach to the home itself. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984). “[C]urtilage is the area to which extends the intimate activity associated with the `sanctity of a man’s home and the privacies of life.'” Id. (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886)). The district court’s determination that the unenclosed area should not be considered curtilage was factual and therefore subject to a clearly erroneous standard of review. United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir. 1993).
Applying the Dunn factors, we hold the drug enforcement agents committed no violation of the Fourth Amendment by going into the unfenced and unenclosed portion of the yard. Although the agents made their observations from close proximity to the house, the other three Dunn factors tend to indicate the defendant did not have a reasonable expectation of privacy for this area. The unenclosed portion of the yard extended into an open field which, in turn, was fronted by a highway. There is no indication in the record that Mr. Knapp attempted to shield the unenclosed portion of the yard from public view, nor is there any evidence that Mr. Knapp had any particular use for this area. On balance, the area near Mr. Knapp’s utility meter was not so intimately tied to the uninhabited house that it enjoyed Fourth Amendment protection. See Swepston, 987 F.2d at 1513-15. Moreover, we are comfortable that probable cause to search the uninhabited house was present even without Agent Olachea’s observation of the odor. Thus, the denial of the motion to suppress was appropriate.
The Court made it clear curtilage extends to the immediate areas outside the home’s walls and has provided guidelines to determine curtilage, but what about the driveway and front yard of a residence, do these areas fall outside of curtilage?
We will first look at the driveway of a residence. Several courts have addressed driveways and front yards and have determined that, for the most part, such areas are not considered curtilage. For the California court of appeals, in People v. Mendoza (1981), found that a front yard was not curtilage even with a fence around it and that officers could contact people in the front yard when investigating a crime. Below is an excerpt of the opinion.
Fencing around the front yard of a residence is a common situation and ordinarily includes a gate at the point where a sidewalk leads to the front door. Such fences have obvious purposes other than excluding the public, such as discouraging dogs, children, handbill deliverymen and others from walking across the front lawn and flower beds. In the absence of a locked gate, a high solid fence blocking the front yard from view, a written notice to keep out or beware of dog,” or perhaps a doorbell at the front gate, anyone having reason to talk to the residents would be expected to open the front gate, walk up to the house and knock on the door. Likewise, if a resident was in the front yard too far away from the [122 Cal. App. 3d Supp. 15] fence to talk with easily, it would be entirely natural and appropriate to open the gate without asking permission and to approach the person in order to converse in normal tones. At least, this would be the case in the absence of a warning from the occupant that the visitor was unwelcome
[1] There is simply no reasonable expectation of privacy in the front yard of a residence under such conditions. It is no more closed off to the public, expressly or impliedly, than any other front yard with a sidewalk to the front door.Even without a fence the public is not expected nor encouraged to walk wherever desired through the front yard; that’s why a sidewalk is provided. The fact that a chain-link fence is installed is not commonly considered a deterrent to entering a front yard to the same extent as if unfenced, in the absence of other evidence to the contrary.
The situation is entirely different where a backyard entry is involved, with or without a fence. Here again, common sense and knowledge of our everyday customs tell us that members of the public, other than friends and relatives, are not normally expected nor invited to enter the backyard of a residence in the average community. fn. 1 Such conduct on the part of a stranger would be considered quite unusual and very likely resented. That portion of a residence is looked on by most home occupants as “private property,” not to be invaded lightly. Significantly, none of the cases cited by defendant or the trial judge refer to front yards, but only to backyards, where members of the public having business with the occupants are not normally invited.
The California Supreme Court recognized the test for determining reasonable expectation of privacy in the following language: “… we do not rest our analysis exclusively upon such abstractions as ‘trespass’ or ‘constitutionally protected areas’ or upon the physical differences between a telephone booth and the land surrounding a residence; we do, however, look to the conduct of people in regard to these elements. Taking into account the nature of the area surrounding a private residence, we ask whether that area has been opened to public use; if so, the occupant cannot claim he expected privacy from all observations of the officer who stands up on that ground; if not, the occupant does deserve that privacy.”Lorenzana v. Superior Court (1973) 9 Cal. 3d 626, 638 [108 Cal.Rp. 585, 511 P.2d 33].) [122 Cal. App. 3d Supp. 16]
When the officer approached defendant in the front yard of his home, he was not just “snooping” or acting on a “hunch” in calling on the latter. The officer had information that defendant was dealing in and using heroin. This was sufficient engender a reasonable suspicion of defendant’s involvement in criminal activity, justifying a temporary stop and questioning. (In re Tony C. (1978) 21 Cal. 3d 888, 894 ([148 Cal. Rptr. 366, 582 P.2d 957].) The arresting officer first became aware of defendant’s visible evidence of being under the influence of heroin after coming close to defendant and observing him. The officer was then in an area on to the public, where defendant could not “claim he expected privacy from all observations of the officer ….” (Lorenzana v. Superior Court, supra, p. 638). Accordingly, there was no violation of defendant’s constitutional right to be secure from unreasonable searches or seizures. (U. S. Const., Fourth Amend.; Cal. Const., art. I, § 13.)
The Colorado Supreme Court, in its People v. McGahey 500 P.2d 977 (1972) opinion found that an officer driving his patrol vehicle into the driveway of a residence and stopping in the driveway approximately 25 feet from the residence at which point the officer saw marijuana plants inside the residence through the residence’s living room picture window had not violated curtilage of the home and was lawfully in position to see the plants.
I believe everyone can understand and agree with the Court’s view that curtilage means, in most cases, the side garden, backyard, and breezeway (three-sided garage enclosure) between the garage and home, but I am sure many are wondering how curtilage extends to the front porch, since officers can walk up to and knock on the front door of many homes without having to have a warrant or consent to enter the porch area and knock.
The Court addressed this in its Kentucky v. King (2011) opinion when it opined,
When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.
The Court, in its Florida v. Jardines (2013) opinion further acknowledged an officer’s ability to enter the front porch and knock on the front door of a residence:
We have accordingly recognized that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.” Breard v. Alexandria, 341 U. S. 622, 626 (1951). This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.
The Colorado Supreme Court, in its People v. Baker (1991) opinion found officers “may constitutionally knock on the door of a residence and seek permission (i.e., consent) to enter to conduct a search of that residence.”
Does the Court contradict itself by saying a residence’s front porch is curtilage?
The answer is no, and is found in the Court’s Florida v. Jardines (2013) opinion in which the Court states,
Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.”
This same logic is what led to the 7th Circuit’s reasoning in U.S. v. Banks (2023) opinion:
The parallel and equivalency between a home and its curtilage means that law enforcement officers must have a war- rant to enter either, unless one of a few limited exceptions ap- plies. See Lange v. California, 141 S. Ct. 2011, 2017 (2021). The exceptions allow warrantless entry when, for example, exigent circumstances exist, the resident consents to entry, or the officers conduct a knock-and-talk… The police reacted to Banks’s Snapchat post by immediately heading to his home to arrest him for unlawful gun pos- session. But they never paused to request a warrant. And that omission matters because the Fourth Amendment very much concerns itself with place, and the location of the planned arrest—Banks’s front porch—is not one the police could enter without consent or exigent circumstances. Everyone agrees that neither existed before the police walked onto the porch, as Banks presented no imminent threat or flight risk in the circumstances. Nor did the police even attempt to conduct their encounter with Banks as a consensual knock-and-talk scenario. The officers needed a warrant to enter Banks’s porch, and their failure to obtain one resulted in a clear Fourth Amendment violation.
The unlawful entry onto the curtilage tainted the evidence they discovered. Through their “unlicensed physical intrusion” onto Banks’s porch, the officers created any exigent circumstances that might have developed during their ensuing struggle with Banks. See Jardines, 569 U.S. at 7. The officers, in short, were unable to rely on those exigent circumstances to authorize the entry onto Banks’s porch.
Is there a difference for single-family residences and multi-family residences concerning curtilage and the front porch?
The answer is yes.Florida v. Jardines (2013) and U.S. v. Banks (7th Cir., 2023) address the front porch area on single-family residences. Such residences have an expectation of privacy on the front porch based on curtilage. Multi-family locations do not enjoy the same expectation of privacy concerning the front porch.
United States v. Trice (6th Cir., 2020) applied the Dunn elements in determining the area around Trice’s front door did not constitute curtilage.
For the purposes of the Fourth Amendment, “the area ‘immediately surrounding and associated with the home’—what [the Supreme Court] call[s] the curtilage—[is regarded] as ‘part of the home itself.’” Jardines, 569 U.S. at 6 (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). “[W]hen it comes to the Fourth Amendment, the home is first among equals.” Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018) (alteration in original) (quoting Jardines, 569 U.S. at 6). Curtilage is the area that is “intimately linked to the home, both physically and psychologically, and is where privacy expectations are most heightened.’” Jardines, 569 U.S. at 6 (internal quotations omitted) (quoting California v. Ciraolo, 476 U.S. 207, 213 (1986)). It is “the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’” Ciraolo, 476 U.S. at 212 (quoting Oliver, 466 U.S. at 180).
Conducting a warrantless investigation by placing a camera in this constitutionally protected area would therefore be unlawful, either because it worked a physical intrusion into the curtilage, see Jardines, 569 U.S. at 9–10; Taylor, 922 F.3d at 333; accord United States v. Jones, 565 U.S. 400, 404–05 (2012), or because it would violate the owner’s reasonable expectation of privacy, see Jardines, 569 U.S. at 12–13 (Kagan, J., concurring). Yet, although we agree that Trice’s constitutional rights would have been violated had the camera been placed in the curtilage of his home, we find the search was lawful because the area in which the camera was placed—the wall opposite his apartment door—does not constitute curtilage.
Courts have identified four factors to determine whether an area falls within a home’s curtilage: (1) the proximity of the area to the home, (2) whether the area is within an enclosure around the home, (3) how that area is used, and (4) what the owner has done to protect the area from observation from passersby. Morgan, 903 F.3d at 561 (citing United States v. Dunn, 480 U.S. 294, 301 (1987)). “These factors are not to be applied mechanically; rather, they are ‘useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration—whether the area in question is so intimately tied to the home itself that it should be placed under the home’s “umbrella” of Fourth Amendment protection.’” May-Shaw,
955 F.3d at 569–70 (quoting Dunn, 480 U.S. at 301).
The first factor weighs in favor of Trice. The camera was placed in close proximity to his home, on the wall opposing his unit in between the door to his neighbor’s apartment and the door to a storage closet. Investigator Behnen estimated that the distance was “about ten or slightly under ten feet from door to door.” R. 49 at PageID 263–64. This distance is within the range that we have held falls within Fourth Amendment protections. See Morgan, 903 F.3d at 561 (area five to seven feet from home constitutes curtilage); see also Brennan v. Dawson, 752 F. App’x 276, 282 (6th Cir. 2018) (same for area arm’s length from home); Widgren v. Maple Grove Twp., 429 F.3d 575, 582 (6th Cir. 2005) (same for area four to six feet from home).
However, the other three factors weigh strongly against him. The area was not in an enclosure around the home, but instead in a common unlocked hallway. Similarly, Trice did not take any measures to protect the area from observation. Most important for this case, though, is how the area is used. See United States v. Jackson, 728 F.3d 367, 374 (4th Cir. 2013) (finding the third Dunn factor the “most telling” in holding that an outdoor common area did not constitute curtilage of an apartment). Simply put, there is nothing about the hallway wall to suggest that it was “an area adjacent to the home and ‘to which the activity of home life extends.’” Collins, 138 S. Ct. at 1671 (quoting Jardines, 569 U.S. at 7). The hallway in question was a common area open to the public to be used by other apartment tenants to reach their respective units. The exterior doors did not have locks and were at least sometimes ajar, so the hallway was accessible to any passersby. It was also used by other tenants as a passageway to the basement laundry unit.
Further, the camera was placed on a wall opposite Trice’s door, an area over which Trice does not claim to have any authority. We therefore conclude that the camera was not placed within the curtilage of Trice’s apartment. This is consistent with our previous cases holding that readily visible common areas do not constitute curtilage of an apartment.
The Colorado Supreme Court, in its People v. Shorty (1987) opinion, upheld the search of the front porch area near the front door of an apartment that had a separate walkway (steps) to the apartment.
While the Supreme Court has held that the curtilage surrounding one’s home may be protected under the Fourth Amendment, see Oliver v. United States, 466 U.S. 170 (1984), the fact that a search occurs within the curtilage is not dispositive if the area’s public accessibility dispels any reasonable expectation of privacy. United States v. Smith, 783 F.2d 648 (6th Cir. 1986). See also California v. Ciraolo, 106 S. Ct. 1809, 1812 (1986); State v. Seagull, 95 Wn.2d 898, 632 P.2d 44 (1981). In conducting a criminal investigation, a police officer may enter those residential areas that are expressly or impliedly held open to casual visitors. State v. Seagull, 95 Wn.2d 898, 632 P.2d 44 (1981). See generally 1 J. Cook, Constitutional Rights of the Accused § 3:44, at 673-74 (1985). Reasonable expectations of privacy are diminished in common areas of multi-family dwellings. People v. Shorty, 731 P.2d 679, 681-82 (Colo. 1987)
Summary
Curtilage is the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life. Curtilage as applied to single-family homes often includes side yards, back yards, breezeways between the home and garage, and the front porch. Curtilage is defined by the proximity of the area to the home, whether the area is within an enclosure surrounding the home, the nature and uses to which the area is put, and the steps taken by the resident to protect the area from observation by passersby. Curtilage areas receive the same expectation of privacy considerations as does the inside of a home, meaning officers cannot enter these areas without a warrant, consent, or an exigent circumstance, except for walking onto the front porch of a single-family residence to knock on the door.
Driveways and front yards are typically not found to fall within the curtilage of the home. In most cases, officers can enter driveways and front yards of residences, and walk onto the front porch of single-family residences to knock on the front door (of the residence) without violating the residents’ Fourth Amendment rights.
Front porch curtilage (expectation of privacy) is applicable to single-family residences and not to multi-family (apartment) areas.
Concerning officers entering a single-family residence driveway to check VIN numbers on vehicles parked in the driveway, it appears, based on the provided case law, that officers can do so without violating the residents’ Fourth Amendment rights so long as the driveway is not within the home’s curtilage. That stated, again, please consult with your respective law enforcement agency, City Attorney’s Office, District Attorney’s Office, State Attorney General’s Office, or United States Attorney’s Office for their interpretation and application of this information. I hope this article provides clarification on how to navigate curtilage issues. Please reach out with any comments or questions.