NOTE: Welcome to the first post in our other new alliteratively-titled weekly blog post series, Fourth Amendment Fridays. With this series we hope to highlight aspects of search and seizure law that may not be widely-known. Our hope is that an informed citizenry armed with this knowledge can assert as robust a protection of their constitutional rights as the law allows. This first post deals with the important concept of the “curtilage.”
“Get off my lawn!” is a phrase we associate with an old codger hollering at young ruffians. What you may not know is that it is also a phrase young ruffians can employ when hollering at law enforcement (although it is probably always advisable to use a measured tone and volume when addressing armed individuals). The reason police may have to get off your lawn is because at least parts of your lawn are likely considered to be part of the “curtilage” of your home. This vaguely gross-sounding word, and the concept it embodies, extends the constitutional protection of your house to the private areas immediately outside your home.
The Fourth Amendment protects against unreasonable searches and seizures. One of the things explicitly protected by this amendment is “houses.” Thus, absent exigent circumstances, police cannot enter and search a home without a warrant. Conversely, police have a right to be in public places and make observations from such places. Thus, it is not an impermissible search for police to stand on a public sidewalk and look through a big picture window into someone’s home. The concept of “curtilage” and its constitutional protection lies in the grey area between these two poles.
In two cases, US v. Dunn and Florida v. Jardines, the US Supreme Court has provided guidance about how curtilage should be defined. They have settled on four factors: proximity, enclosure by a fence, nature of the use and protection from observation. Thus, an area is most likely to be found to be curtilage when it it close to the house, enclosed by a fence, used for a private purpose and protected from observation. Imagine a hot tub immediately outside a back door, surrounded by a tall and opaque fence and used primarily for skinny-dipping and associated activities. This would seem to be the textbook definition of curtilage. Contrast this hypothetical with a play structure, in a front yard, 30 yards from the house, not enclosed by a fence and freely used by neighborhood children in addition to the residents of the house. This gives an example of an area that is unlikely to be found to be curtilage. Hypotheticals in between these two poles would present much more difficult questions.
Both Dunn and Jardines are drug cases (because of course they, as the War on Drugs drives so much of what ails our criminal justice system). In Dunn a barn was found to be outside of the curtilage, and the resulting search upheld, while in Jardines the Court held that the use of a drug dog at the front door of a house without a warrant violated the Fourth Amendment. The question this line of cases raises is: “What can an individual do to develop as expansive a curtilage as possible?” Jardines stands for the proposition that not much need be done to establish one’s front stoop as curtilage, while the defendant in Dunn took many steps to shield his property from the public but was ultimately unsuccessful in his curtilage claim.
My first piece of (boring) advice is that the best thing one can do to avoid police intrusion is scrupulously obey all laws. But, for some, that is easier said than done. For those people, building an large, opaque fence close to their home (while still encompassing the area they desire to claim as curtilage) is a good start. Then, establishing a consistent private use of this area would bolster the claim (nude sun-bathing anyone?). A sign indicating that this is a private area where private activities take place couldn’t hurt.
The concept of curtilage appears to exist chiefly to deter police officers from behaving like peeping toms. Random men can’t cross your fence and come up to your windows, peering between the curtains. This should be true even if these men aren’t so random and have a badge. However, it is never worth it to get into a legal argument with a cop. If you’ve asked an officer to leave the curtilage of your home, and they refuse, don’t get in a fight with them. As always, assert that you don’t consent to a search, would like them to leave and wish to speak with a lawyer. If this doesn’t work, you’ve done everything you can to preserve the issue for your attorney to argue later in court.
In short, the Fourth Amendment’s protection of your home doesn’t end at your front door, but extends beyond it to some unclear and fact-specific degree. Taking steps to ensure your privacy from prying eyes can help to protect your constitutional rights as well.