Curtilage

The term curtilage refers to the immediate land and buildings, such as a shed or barn, that surround a home. Curtilage is the land between the home and the fence, should a fence exist, and is considered private property. Curtilage is meant to define the boundaries of a property so that a homeowner can enjoy a reasonable level of privacy. It is the area where the homier and more intimate activities take place, before the land meets public property. To explore this concept, consider the following curtilage definition.

Definition of Curtilage

Noun

  1. The immediate land and buildings surrounding a home.

Origin

1250-1300       Middle English courtelage

What is Curtilage

Curtilage is the area of someone’s property where the daily activities of the home take place. An example of curtilage includes such areas as the yard between the front door and the sidewalk, where children and pets play outside, and the area beside the house, where trash cans and other items are stored. Other examples of curtilage include the buildings that are located on the property, such as a shed in the backyard, or a barn that is located on a farm. In the simplest terms, curtilage is the area in and around someone’s home, where he can expect to have “reasonable privacy” from governmental intrusion.

The concept of curtilage becomes important when considering the resident’s Fourth Amendment rights against unreasonable search and seizure. When police officers are expected to have a warrant before searching a premises, the warrant gives them permission to enter the curtilage, or privacy, of someone’s home.

However, if someone does not take steps to keep their private matters private, and if the public can readily access the person’s curtilage, then that person may not be entitled to the same protection under the law. An example of curtilage that does not fall under this protection occurs when someone leaves his gate open to allow members of the public, such as the mail man, or visitors, to come into his yard. Police officers would be allowed to go where others go freely.

Can the Police Search the Curtilage of a Home

In most situations, police are not permitted to search the curtilage of a home without a warrant. This is because the home, and its surrounding yard and buildings, are considered private. However, there are exceptions to this rule. Police do not need a warrant to enter the curtilage of a home if they have to conduct official police business, such as responding to a 9-1-1 call, or to speak with the occupant.

The reason why this is legal, is because the owner or occupant of the property can be reasonably expected to be within his home and curtilage. Therefore, in order for a police officer to respond to the 9-1-1 call or conduct some other official police business, he needs to be able to enter the property. Having the right to enter does not give police the right to search the curtilage of a home.

In the case of Hester v. United States (1924), the “open fields doctrine” was established. Here, the Court held that the Fourth Amendment did not apply to “open fields,” such as pastures, wooded areas, or vacant lots. Therefore, should police need to conduct a search in one of these areas, they do not need to have a warrant, or properly establish probable cause before-hand, in order to search the premises, even if it is technically “private property.”

It is important to note that not every search and seizure falls under the protections of the Fourth Amendment. The Fourth Amendment only protects people from those searches and seizures that are either conducted by, or directed by, the government. People who are operating in a strictly private sense, such as private investigators or meddling neighbors, are not governed or restricted by the Fourth Amendment, unless they are working directly with law enforcement.

Expectation of Privacy in Curtilage

Fourth Amendment protections cannot be taken advantage of unless the person who was allegedly violated can demonstrate what is called a “reasonable expectation of privacy.” A reasonable expectation of privacy applies to whatever a person may try to keep private, in his home or other personal place. However, should that person knowingly expose any section of his home or business to the public, then the courts are not obligated to apply Fourth Amendment protections for that section.

The Supreme Court has ruled, and it is generally assumed, that an individual is entitled to privacy when it comes to his body, clothes, and personal belongings. Those things are a given insofar as an individual’s “reasonable expectation of privacy.” Similarly, homeowners are granted the expectation of privacy when it comes to the interior and exterior of their homes, with the exterior extending to the immediate area surrounding the home.

However, if the home is bordered by woods or a vacant lot, then the activities that take place in either of those areas are not included in the “reasonable expectation of privacy,” because these are considered public locations that extend beyond the curtilage. Similarly, any items or activities that are “in plain view,” are not protected by the Fourth Amendment. Those who own automobiles can also claim a limited kind of curtilage, expecting privacy in inside their cars.

Business owners cannot enjoy the same expectation of privacy that homeowners can. This is because their premises are subject to both state and federal searches in order to ensure they comply with the law. Health, safety, and security inspectors are all permitted access to the business’ curtilage, for inspection purposes.

If someone puts his property on display in plain view of the public eye, he should not expect to be granted the same protections he would receive under the law, as it negates any reasonable expectation of privacy. This is because there cannot really exist privacy when someone is legitimately offering up his property for public view.

For example:

Tommy has placed his pipe, still containing marijuana, in plain view on the passenger seat of his car. It can be seen by anyone who passes by, or walks up to the car, so they are not considered to fall within Tommy’s reasonable expectation of privacy.

When a police officer walks up to Tommy’s car to see why he is parked in a strange spot, he immediately asks Tommy to step out of the car, and places him under arrest. The officer does not need a search warrant, as Tommy is clearly in possession of drug paraphernalia.

Similarly, if Tommy’s neighbor places items that prove she committed a crime in the trash, out on the curb, she cannot claim a reasonable expectation of privacy.

Curtilage Example in DEA Drug Sting

In 1987, Ronald Dunn was at the center of a court case that concerned the curtilage of his ranch property. DEA agents had tracked drug-making supplies to Dunn’s ranch after suspecting that he was involved in something illicit. The agents tracked Dunn back to his ranch, and witnessed him moving the drug-making supplies into his barn.

The agents peeked into the barn, without actually entering, and saw the supplies, and laboratory equipment, inside. They returned a few more times to do the same thing. After confirming that the drug laboratory existed inside the barn, the agents obtained a search warrant, seized the chemicals and laboratory equipment, and arrested Dunn.

At trial, Dunn’s attorney moved to have the evidence seized from the barn be suppressed, claiming that it had been obtained in violation of Dunn’s Fourth Amendment rights. The ranch, as it turned out, was surrounded by a fence, and there were several interior fences. Dunn claimed that the barn existed on the curtilage of his property, and that passing fences to peer into the barn was illegal. The trial court denied that motion, allowing the evidence to be presented, and Dunn was ultimately convicted on federal drug charges upon the conclusion of his criminal trial.

On appeal, the appellate court reversed Dunn’s conviction, holding that the barn was “within the curtilage” of his house. Therefore, the police officers’ multiple visits to Dunn’s property without a warrant constituted a violation of the Fourth Amendment. The court also found that these warrantless searches constituted a violation of what Dunn could expect to be a reasonable level of privacy.

When the matter ultimately reached the U.S. Supreme Court, the question was whether or not a warrant was indeed necessary for the DEA agents to look into the barn through an opening. This was especially controversial when considering that the barn was located on a field that was considered private property.

Ultimately, the Supreme Court ruled that no, a warrant had not been necessary for the search. First of all, the Court determined that Dunn’s barn, and the land immediately surrounding it, were placed apart from what would be considered the curtilage around Dunn’s home.

The fact that the barn was separated from the house by a fence and, even then, was located significant distance from the house, highlighted this fact. Additionally, the police were privy to information that already made Dunn a suspect, and Dunn did little (if anything) to hide his operation from outside observers.

As a result, the Court concluded that the officers could not have violated the Fourth Amendment because they never did, in fact, go into the barn until they had their warrant. Justice Scalia in particular noted that what was more important was how the barn was actually being used, rather than how the officers thought the barn was being used. Justices Brennan and Marshall disagreed, saying that the barn was protected as part of Dunn’s curtilage, and that the officers violated his privacy because the barn was a crucial feature of Dunn’s business.

Related Legal Terms and Issues

  • Warrant – A writ issued by a court or other legal official authorizing law enforcement or other agency to make an arrest, search a premises, or take some other action related to the administration of justice.

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