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May 1990
CURTILAGE: THE FOURTH AMENDMENT IN THE GARDEN
By
John Gales Sauls
Special Agent
and
Legal Instructor
FBI Academy
Suppose a police officer, executing a search warrant
authorizing the seizure of cocaine, is searching a residence in
his jurisdiction. As the search proceeds, an outbuilding is
discovered at the rear edge of the residence's backyard. The
officer ponders whether he may search the outbuilding under the
authority of the warrant he is executing.
Across town, another officer is conducting an unrelated
surveillance of a drug trafficker. He follows the suspect to a
residence that the suspect enters. The suspect and the resident
of the house, who is unknown to the police, are heard talking on
a fenced patio behind the house. If the officer crawls into the
bushes at the side edge of the residence's lawn, he will be able
to see the men on the patio without revealing his presence. He
wonders whether such an entry will be lawful.
These officers are grappling with the concept of curtilage.
The first officer needs to determine whether the outbuilding is
within the curtilage of the residence and therefore within the
scope of the search warrant. The second officer needs to
determine whether the bushes he is considering crawling into are
within the curtilage of the residence, and if so, whether his
contemplated entry is a lawful one.
This article will discuss curtilage. It will first discuss
the legal standards used in defining the physical limits of
curtilage. Then, it will examine protections associated with
curtilage and the limitations placed upon law enforcement
officers by these protections. Finally, it will set forth
guidelines that may be used by officers who need to determine the
boundaries of a particular residence's curtilage so as to
restrict their actions to those allowed under the Constitution.
CURTILAGE DEFINED
As the U.S. Supreme Court noted in United States v. Dunn, (1)
curtilage is the area immediately surrounding a residence that
``harbors the `intimate activity associated with the sanctity of
a man's home and the privacies of life.''' (2) Curtilage, like a
house, is protected under the fourth amendment from
``unreasonable searches and seizures.'' (3) Determining the
boundaries of curtilage, however, is considerably more
problematic than fixing the limits of a house.
In Dunn, the Court identified four factors that should be
considered when determining the extent of a home's curtilage:
1) The distance from the home to the place claimed to be
curtilage (the nearer the area to the home, the more likely that
it will be found to lie within the curtilage);
2) Whether the area claimed to be curtilage is included
within an enclosure surrounding the home (inclusion within a
common enclosure will make it more likely that a particular area
is part of the curtilage);
3) The nature of use to which the area is put (if it is the
site of domestic activities, it is more likely to be a part of
the curtilage); and
4) The steps taken by the resident to protect the area from
observation by people passing by (areas screened from the view
are more likely a portion of the curtilage).
The Court urged the use of these four factors as a guide in
assessing 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.'' (4)
Since the Court in Dunn held that the area in question in
that case was outside the curtilage, no guidance was provided
regarding what protections the fourth amendment provides to
curtilage. Fortunately, other U.S. Supreme Court and lower court
decisions have delineated these protections in some detail.
PROTECTIONS AFFORDED CURTILAGE
Application of the Fourth Amendment
The fourth amendment to the U.S. Constitution protects the
``right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and
seizures....'' (5) As earlier noted, this protection extends to
the area surrounding a residence that is known as curtilage. (6)
Often, the area outside the curtilage is properly classified as
``open fields'' and is subject to no fourth amendment
protection. (7)
Whether a particular action in relation to the curtilage is
controlled by the fourth amendment depends on whether the action
constitutes a ``search or seizure'' for fourth amendment
purposes. If the action is a search or seizure, officers are
generally required to obtain a warrant prior to conducting the
search or seizure, or to justify a warrantless action by
demonstrating that it was lawful under one of the exceptions to
the fourth amendment warrant requirement. (8) If no search or
seizure is involved, the fourth amendment will not apply, and it
is unnecessary for an officer to factually justify his actions. (9)
A search, for fourth amendment purposes, occurs when
government action intrudes into a person's ``reasonable
expectation of privacy.'' (10) As will be hereafter discussed,
assessing whether a particular action by the government intrudes
into a person's ``reasonable expectation of privacy'' is a
critical component in the determination of what law enforcement
officers may lawfully do in and around curtilage.
Examination of the Curtilage from a Point Outside
An officer, positioned in a place where he has a right to be
outside the curtilage of a residence, may generally look into the
curtilage without performing a ``search.'' This is true because
the officer is observing nothing more than any other member of
the public might see from the same viewpoint, and ``[w]hat a
person knowingly exposes to the public, even in his own home or
office, is not subject to Fourth Amendment protection.'' (11) For
example, when agents of the Internal Revenue Service hid in a
cornfield adjacent to a residence's backyard and observed illicit
whiskey transactions therein, their actions did not constitute a
search, even though the backyard was clearly part of the
curtilage. (12)
Where necessary, an officer may take steps to improve his
view without his actions constituting a search, so long as he
does nothing that might not be done by some other ordinarily
curious member of the public. Standing on a rock in order to see
over a 6-foot fence, for example, has been held not to constitute
a search since the resident ``...had reasonably to expect that
his neighbors might glance into his backyard....'' (13) Similarly,
when officers saw marijuana plants growing in a person's
backyard, by standing on tiptoes on a neighbor's back porch to
look over the person's 6-foot high stake fence that was
overgrown by vines and bushes, they did not conduct a search. (14)
Use of an airplane or helicopter flying in lawful airspace
as a platform to view what a person has exposed, in his
curtilage, to air view will also not constitute a search. (15) When
the officer is observing nothing more than some other member of
the public flying over the residence might see, those
observations are not intruding into any expectation of privacy
that society is willing to recognize as reasonable. (16)
Consequently, the viewing is not a search. (17)
Similarly, use of devices that optically or mechanically
enhance an officer's view into curtilage does not constitute a
search as long as the device does not reveal significant details
that could not be viewed from a closer public vantage point. For
example, officers who concealed the existence of their
surveillance by hiding in woods and using binoculars and a
spotting scope to observe the yard, garage, barn and exterior of
a rural home were not conducting a search since these things were
also visible from a public highway closer to the house. (18) In
another case, officers used a telephoto lens while on a
helicopter overflight to photograph a barn adjacent to a
suspect's rural home and thereby observed a newly constructed
addition to the barn and unusually wide tire tracks leading to
the barn. These actions were held not to constitute a search
since the things observed could have been seen with the naked eye
during a closer, lawful overflight. (19)
However, use of sophisticated devices to enhance the
officers' observation powers to reveal things not visible with
the naked eye from some lawful vantage point will likely
constitute a search. Thus, when police used a 600-millimeter
camera lens from a distance of 100 yards (the nearest point the
officers had a right to be) to glimpse through the fan louvers of
an opaque greenhouse surrounded by brush and two fences, their
observations of marijuana plants were held to be a search. (20)
Therefore, if the use of enhancement devices is contemplated
during a surveillance, absent emergency circumstances, a valid
search warrant should be obtained prior to its institution.
The information that officers gather by seeing what has been
placed in the view of the public may be used as component facts
of probable cause to search or arrest. However, mere possession
of facts amounting to probable cause will not necessarily justify
further warrantless action by the officers. As will be
discussed, absent the applicability of some recognized exception
to the warrant requirement, a search warrant may be required
before officers enter curtilage and seize evidence.
Entry into Curtilage
Determining whether an entry into curtilage by law
enforcement officers constitutes a search or seizure for fourth
amendment purposes necessitates a second ``reasonable expectation
of privacy'' analysis. While citizens may have no reasonable
expectation that police officers will not look into their
curtilage from vantage points where the officers have a right to
be, they may reasonably expect that the same officers will not
enter their curtilage.
In United States v. Whaley, (21) a deputy sheriff driving
along a road crossing an 11,000-acre farm saw what he thought to
be marijuana growing adjacent to a house that was near the road.
The deputy later entered the property and seized the marijuana
plants without first obtaining a warrant. The seizure of the
marijuana plants was held to be illegal. Even though the
deputy's view of the plants from the road was not a search, his
entry onto the property to seize the plants was an intrusion into
the curtilage. Since no emergency had been shown to exist, and
no other exception to the warrant requirement was apparently
applicable, the court ruled the warrantless entry and seizure
violated the fourth amendment.
All warrantless entries into curtilage do not, however,
violate the fourth amendment. In assessing the constitutionality
of an entry, courts look to the nature of the particular area
entered to assess whether the entry intruded into some reasonable
expectation of privacy. In that regard, areas of the curtilage,
such as walkways and driveways, that members of the public would
be expected to enter are not private. As one court expressed,
``In conducting a criminal investigation, a police officer may
enter those residential areas that are expressly or impliedly
held open to casual visitors.'' (22) Officers may generally enter
access areas of the residence's curtilage without a warrant
since it is reasonable to expect members of the public, such as
neighbors and salespersons, to enter such areas. The court
noted, ``If one has a reasonable expectation that various members
of society may enter the property in their personal or business
pursuits, he should find it equally likely that the police will
do so.'' (23)
In United States v. Smith, (24) for example, an officer drove
into the driveway of the defendant's 70-acre farm and saw from
his car a large marijuana plant growing beside the house.
Although there was a wire fence along the highway, the court in
holding that no search had occurred noted that the driveway was
unobstructed, and that it was not reasonable to expect that
members of the public wouldn't drive in.
In United States v. Roberts, (25) an officer drove into a road
marked ``private'' that the defendant shared with other neighbors
and walked up to the defendant's front door. His view of
evidence from that point was held not to be the product of a
search. An unobstructed driveway or sidewalk carries with it an
implied invitation to both neighbors and the police.
Officers may also deviate somewhat from the straight path to
the front door. In United States v. Johnson, (26) officers stepped
2 or 3 feet off the sidewalk leading to the front door of an
urban residence and thereby gained a view into the lighted
basement through an uncurtained window. Their view of drugs
being packaged in the basement was held not to be the product of
a search.
However, entry by officers into private areas of curtilage
will constitute an intrusion into fourth amendment rights. In
United States v. Van Dyke, (27) officers began a surveillance of a
rural home from a neighbor's property. As darkness fell the
officers moved in closer to obtain a better vantage point. ``The
officers walked through trees growing along the boundary between
the two properties, climbed a fence, and moved 15 feet beyond the
fence to a location 150 feet from the residence. There they lay
down in a patch of honeysuckle bordering the mowed lawn.'' (28)
Although quite distant from the house, this area was held to be
within the curtilage in part due to its proximity to the large,
manicured lawn. This entry into curtilage was held to constitute
a search, and the information obtained from surveillance at this
location was suppressed.
Searches Made Pursuant to a Search Warrant
Officers executing a search warrant that authorizes them to
search a residence for evidence of crime have authority to enter
the curtilage area in order to gain access to the residence. But
that is not the end of their powers under the search warrant.
Many warrants include a specific authorization to search the
curtilage and any outbuildings therein. Even without this
specific authorization, officers may, pursuant to the warrant,
search portions of the curtilage that might conceal the evidence
they are empowered to seize. (29) This is because the ``...word
`premises' in a search warrant includes the land, the buildings,
and the appurtenances thereto.'' (30) Thus, in United States v.
Griffin, (31) a warrant that described a residence as ``premises
known as'' followed by the street address and a description of
the house gave authority to search and seize soil and rock in the
backyard, the contents of a tool shed and the contents of an
automobile parked in the driveway.
An officer who knows prior to applying for a search warrant
that there are outbuildings or automobiles on the premises to be
searched should seek a warrant that includes a specific
authorization to search the curtilage, outbuildings and
automobiles. (32) This is especially true where defendants might
claim that the outbuildings are separate residences. (33) However,
where the warrant merely authorizes the search of specified
``premises,'' officers should understand this to include the
curtilage and outbuildings (that are clearly not other
residences) located therein. (34)
CONCLUSION
Three circumstances have been identified where the concept
of curtilage has legal significance to police officers. First,
where officers contemplate observing an area from a lawful
vantage point using a device to enhance their senses to an extent
that they will be able to observe details not visible with the
naked eye from any other lawful vantage point, the officers must
determine whether the area is part of a residence's curtilage.
This is because if the area is curtilage their enhanced viewing
is likely a search under the fourth amendment, and absent
emergency circumstances, a search warrant is required in order
for their viewing to be lawful.
Second, when contemplating entering areas near a residence
that are not access areas or that are access areas with public
access either blocked or discouraged in a significant way, (35)
officers should determine whether the area to be entered is
within the curtilage. Again, if the area is part of the
curtilage, the officers should, absent emergency circumstances,
seek a search warrant before making the entry. The second
officer mentioned in the beginning of this article is faced with
such a circumstance. The bushes he is contemplating crawling
into are likely within a nonaccess portion of the curtilage, and
the officer would need a warrant in order to lawfully view his
suspect from that location.
Finally, officers executing search warrants, such as the
first officer mentioned in the beginning of this article, need to
determine the bounds of the curtilage when contemplating the
search of a structure arguably beyond the curtilage. The same
holds true when they encounter what is likely a separate dwelling
not specified as a place to be searched in the search warrant.
The search of separate dwellings and structures beyond the
curtilage will require seeking additional warrants specifically
directing the search of those structures.
Where a determination regarding curtilage is required,
officers should make a common sense assessment using the factors
set forth in the Dunn decision: (1) The distance of the area
from the residence; (2) whether the area is included with the
residence in a common enclosure; (3) the nature of the use of
the area; and (4) what steps the resident has taken to screen the
view of the area. If the area in question is very close to the
residence, that fact alone will likely cause the area to
constitute curtilage. If the area is farther away, the other
factors will also be of significance. In a close case, it is
recommended that officers seek a search warrant prior to acting.
This will serve as a safeguard that the officers' actions are
within the bounds of Constitutional constraints.
FOOTNOTES
(1) 480 U.S. 294 (1987).
(2) Id., at 300 (quoting Oliver v. United States, 466 U.S.
170, 180 (1984) [internal quotation marks omitted]).
(3) United States v. Dunn, supra note 1; United States v.
Oliver, supra note 2.
(4) United States v. Dunn, supra note 1, at 301.
(5) U.S. Const. Amend. IV.
(6) See Oliver v. United States, supra note 2.
(7) Id. The ``open fields'' doctrine is not limited to rural
settings, but can also include undeveloped urban property. See
State v. Stavricos, 506 S.W.2d 51 (Mo. App. 1974).
(8) Katz v. United States, 389 U.S. 347 (1967).
(9) Id. See also, United States v. Jacobsen, 104 S.Ct. 1652
(1984).
(10) Id.
(11) Katz v. United States, supra note 8, at 351.
(12) United States v. Campbell, 395 F.2d 848 (4th Cir. 1968),
cert. denied, 393 U.S. 834 (1968).
(13) State v. Corra, 745 P.2d 786, 788 (Or. App. 1987), review
denied, 752 P.2d 842 (Or. 1988).
(14) United States v. McMillon, 418 F.2d 1150 (D.C. Cir.1969).
(15) California v. Ciraolo, 476 U.S. 207 (1986); Florida v.
Riley, 109 S.Ct. 693 (1989). See also, United States v.
Broadhurst, 805 F.2d 849 (9th Cir. 1986). As noted in State v.
Bridges, 513 A.2d 1365 (Me. 1986), the means used to gather the
information will not be relevant as long as what was observed
could have been seen from a legitimate, public vantage point.
(16) Id.
(17) Id.
(18) United States v. Lace, 669 F.2d 46 (2d Cir. 1982), cert.
denied, 459 U.S. 854 (1982).
(19) United States v. Allen, 675 F.2d 1373 (9th Cir. 1980),
cert. denied, 102 S.Ct. 133 (1981).
(20) Wheeler v. State, 659 S.W.2d 381 (Tex. Crim. App. 1983).
See also, United States v. Taborda, 635 F.2d 131 (2d Cir. 1980);
United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987).
In Cuevas-Sanchez, the court in dicta indicated that the use of a
video camera to obtain a full-time view of the defendant's
backyard (which was fenced but visible to a number of his
neighbors) constituted a search due to the pervasive nature of
the surveillance. The reasoning that it is reasonable to expect
that persons will not gaze constantly into one's backyard but
unreasonable to expect that persons will not look occasionally
seems significantly flawed. A place is either open to public
view or it's not. The court was not required to decide the issue
in Cuevas-Sanchez since the officers in that case got prior
judicial authorization to conduct the video surveillance.
Consequently, their actions would have been reasonable for fourth
amendment purposes even if the video surveillance had constituted
a search.
(21) 781 F.2d 417 (5th Cir. 1986).
(22) People v. Shorty, 731 P.2d 679, 682 (Colo. 1987). See
also, United States v. Ventling, 678 F.2d 63 (8th Cir. 1982)
(officer drove into driveway and walked to front door, observing
evidence); United States v. Kramer, 711 F.2d 789 (7th Cir.
1983), cert. denied, 104 S.Ct. 397 (1983) (officers removed
trash bags which were just inside a knee-high chain fence
running along street curb 30 feet from front of house); United
States v. Reed, 733 F.2d 492 (8th Cir. 1984) (officer entered
fenced back parking lot of commercial establishment through open
gate). Cf. Maryland v. Macon, 472 U.S. 463 (1985) (detective in
plain clothes entered book store, which was open to the public,
and purchased magazine later used as evidence.
(23) State v. Corbett, 516 P.2d 487, 490 (Or. App. 1973).
(24) 783 F.2d 648 (6th Cir. 1986).
(25) 747 F.2d 537 (9th Cir. 1984).
(26) 561 F.2d 832 (D.C. Cir. 1977), <MI>cert. denied, 432 U.S.
907 (1977).
(27) 643 F.2d 992 (4th Cir. 1981).
(28) Id. at 993.
(29) See United States v. Bonner, 808 F.2d 864 (1st Cir. 1986),
cert. denied, 107 S.Ct. 1632 (1987) (detached garage included in
term ``premises'' for purposes of describing the place to be
searched); United States v. Penn, 647 F.2d 876 (9th Cir. 1980),
cert. denied 449 U.S. 903 (1980) (warrant describing residential
premises included the residence's yard).
(30) State v. Trujillo, 624 P.2d 44 (N.M. 1981).
(31) 827 F.2d 1108 (7th Cir. 1987).
(32) See United States v. Percival, 756 F.2d 600 (7th Cir.
1985) (approving of a search of a suitcase in the trunk of a car
parked in a detached garage during the execution of a search
warrant authorizing the search of the residential premises, but
noting that the ``better practice'' would be to specifically
include the car in the warrant where possible).
(33) See United States v. Frazin, 780 F.2d 1461 (9th Cir.
1986), cert. denied sub. nom. Miller v. United States, 107 S.Ct.
142 (1986) (noting the outer limits of authorization of search
based upon curtilage, stating ``[w]e have upheld searches of all
the property at a listed street address under warrants that
recite probable cause as to only a portion of the premises where
a multiunit building or collection of separate buildings is used
as a single entity, where the defendant is in control of the
whole premises, or where the entire premises is suspect.'');
accord, United States v. Alexander, 761 F.2d 1294 (9th Cir.
1985) (approving the search of a house trailer located on a
ranch pursuant to a warrant authorizing a search of the entire
ranch); United States v. Whitten, 706 F.2d 1000 (9th Cir. 1983),
cert. denied, 465 U.S. 1100 (1984) (approving the search of a
large stucco house where the house and the adjacent cottage
where the probable cause statement indicated the illegal
activity was occurring shared the same street address and were
occupied in common by the defendants).
(34) United States v. Long, 449 F.2d 288 (8th Cir. 1971),
cert. denied, 405 U.S. 974 (1972); United States v. Asselin, 775
F.2d 445 (1st Cir. 1985) (which notes that a defendant is often
placed in a ``no win'' situation where the area in question is
either within the curtilage and thus within the warrant's
authorization, or in an ``open field,'' thus requiring no
warrant).
(35) It is noteworthy that fences and ``no trespassing'' signs
are not a barrier to an officer's entry into ``open fields.''
See Oliver v. United States, supra note 2; United States v.
Dunn, supra note 1.
____________
Law enforcement officers of other than Federal jurisdiction
who are interested in this article should consult their legal
adviser. Some police procedures ruled permissible under Federal
constitutional law are of questionable legality under State law
or are not permitted at all.