Collins v. Virginia and "the Conception Defining the Curtilage"

A familiar idea "easily understood from our daily experience" -- or is it?

|The Volokh Conspiracy |

The Supreme Court handed down Collins v. Virginia today, ruling 8-1 that the Fourth Amendment doesn't permit the police to go onto the curtilage around a home to search a car using the lower standard of the automobile exception. The decision was 8-1, with Justice Sotomayor writing for the majority and Justice Alito dissenting. I think the majority was exactly right: The automobile exception allows a search of a car once you're at the car, but it doesn't allow entrance onto the curtilage (treated as the home for Fourth Amendment purposes) to get to the car to then apply the automobile exception. And I think Justice Sotomayor wrote a strong opinion on it, too.

To my mind, the most interesting aspect of Collins concerns a brief preliminary part of the decision, the Court's identification of the curtilage. As Fourth Amendment nerds know, curtilage is the space immediately around the home that gets treated as an extension of the home for Fourth Amendment purposes. As I teach the concept in class, the law needs curtilage because otherwise the police could go right up to someone's windows and peer inside without it being a Fourth Amendment "search." Curtilage creates a sort of buffer around the home to make sure the home is fully protected fro observation.

This raises a puzzle, how do you identify the curtilage? The Court seems to go back and forth between thinking it's easy and thinking it's hard. Recent cases suggest the concept is easy and intuitive, but I wonder if that is true. I thought I would explain the basis for my sketpicism.

Here's a history of the curtilage concept to bring us up to speed. The Court first hinted at the idea of curtilage in Hester v. United States, 265 U.S. 57 (1924), a short and breezy opinion by Justice Holmes. Officers found booze on land not far from the suspect's house. Held: This was a search of an "open field" not protected by the Fourth Amendment, as by its text the Fourth Amendment only protects "persons, houses, papers and effects"":

This evidence was not obtained by the entry into the house, and it is immaterial to discuss that. The suggestion that the defendant was compelled to give evidence against himself does not require an answer. The only shadow of a ground for bringing up the case is drawn from the hypothesis that the examination of the vessels took place upon Hester's father's land. As to that, it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the people in their "persons, houses, papers and effects" is not extended to the open fields. The distinction between the latter and the house is as old as the common law. 4 Bl.Comm. 223, 225, 226.

The citation to Blackstone was to Blackstone's discussion of the substantive crime of burglary. It included at page 225 the following sentence:

And if the barn, ftable, or warehoufe be parcel of the manfionhoufe, though not under the fame roof or contiguous, a burglary may be committed therein; for the capital houfe protects and privileges all it's branches and appurtenants, if within the curtilage or homeftall.

The bafic idea—um, I mean, basic idea—was that you were still guilty of burglary if you broke into a barn, stable, or warehouse that was a part of the house area even if not under the same roof as the home. Hester then suggests that Fourth Amendment law has a similar concept, with some area around the home being protected as part of the home but not open fields.

The Court then reaffirmed Hester after Katz in Oliver v. United States, 66 U.S. 170 (1984), incorporating and expanding upon the distinction between open fields and curtilage in the era of the "reasonable expectation of privacy: test:

The historical underpinnings of the open fields doctrine also demonstrate that the doctrine is consistent with respect for "reasonable expectations of privacy." As Justice Holmes, writing for the Court, observed in Hester, 265 U. S., at 59, the common law distinguished "open fields" from the "curtilage," the land immediately surrounding and associated with the home. See 4 W. Blackstone, Commentaries *225. The distinction implies that only the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home. At common law, 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," Boyd v.United States, 116 U. S. 616, 630 (1886), 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. See, e. g., United States v. Van Dyke, 643 F. 2d 992, 993-994 (CA4 1981); United States v. Williams, 581 F. 2d 451, 453 (CA5 1978); Care v. United States, 231 F. 2d 22, 25 (CA10), cert. denied, 351 U. S. 932 (1956). Conversely, the common law implies, as we reaffirm today, that no expectation of privacy legitimately attaches to open fields.

In Oliver, the police observed marijuana growing in a secluded field surrounded by wood and fences with "no trespassing" signs put up: The field could not be seen from any point of public access. The Court ruled that the field was still an "open field" for Fourth Amendment purposes:

The test of legitimacy is not whether the individual chooses to conceal assertedly "private" activity. Rather, the correct inquiry is whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment. As we have explained, we find no basis for concluding that a police inspection of open fields accomplishes such an infringement.

The Oliver court added in a footnote that the distinction should be relatively easy to draw in most cases:

The clarity of the open fields doctrine that we reaffirm today is not sacrificed, as the dissent suggests, by our recognition that the curtilage remains within the protections of the Fourth Amendment. Most of the many millions of acres that are "open fields" are not close to any structure and so not arguably within the curtilage. And, for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage — as the area around the home to which the activity of home life extends — is a familiar one easily understood from our daily experience. The occasional difficulties that courts might have in applying this, like other, legal concepts, do not argue for the unprecedented expansion of the Fourth Amendment advocated by the dissent.

Three years after Oliver, in United States v. Dunn, the Court offered a rather challenging 4-factor test to draw the line between protected curtilage and unprotected open fields:

Drawing upon the Court's own cases and the cumulative experience of the lower courts that have grappled with the task of defining the extent of a home's curtilage, we believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. See California v. Ciraolo, 476 U. S. 207, 476 U. S. 221(1986) (POWELL, J., dissenting) (citing Care v. United States, 231 F.2d 22, 25 (CA10), cert. denied, 351 U.S. 932 (1956); United States v. Van Dyke, 643 F.2d 992, 993-994 (CA4 1981)). We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a "correct" answer to all extent-of-curtilage questions. Rather, these factors 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.

Dunn applied those factors to hold that the area near a barn, located approximately 50 yards from a fence surrounding a ranch house, on a rural property itself surrounded by fences and some barbed wire, was part of open fields and not curtilage.

Contrast that with the more recent discussions of curtilage, which treat it as easy and intuitive. In Florida v. Jardines (2013), the Court held that the front porch of a home is curtilage rather than open fields. Writing for the Court, Justice Scalia suggested that this was obvious:

We . . . 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." Oliver, supra, at 180. That principle has ancient and durable roots. Just as the distinction between the home and the open fields is "as old as the common law," Hester, supra, at 59, so too is the identity of home and what Blackstone called the "curtilage or homestall," for the "house protects and privileges all its branches and appurtenants." 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769). This area around the home is "intimately linked to the home, both physically and psychologically," and is where "privacy expectations are most heightened." California v. Ciraolo, 476 U. S. 207, 213 (1986) . 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." Oliver, 466 U. S., at 182, n. 12. 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." Ibid.

That brings us to today's decision, Collins, which applies the concept of curtilage to a driveway. Here's the relevant part of the opinion:

According to photographs in the record, the driveway runs alongside the front lawn and up a few yards past the front perimeter of the house. The top portion of the driveway that sits behind the front perimeter of the house is enclosed on two sides by a brick wall about the height of a car and on a third side by the house. A side door provides direct access between this partially enclosed section of the driveway and the house. A visitor endeavoring to reach the front door of the house would have to walk partway up the driveway, but would turn off before entering the enclosure and instead proceed up a set of steps leading to the front porch. When Officer Rhodes searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house.

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).

Googling around, I found a news story that appears to include one of the photographs Justice Sotomayor describes:

Especially looking at the photograph, the Court's result seems clearly right. Seeing the photo, the space seems, well, private: It wasn't just a driveway, but rather was a space that happened to be paved that was right up aginst the house in an area enclosed by walls. (As an aside, I think all curtilage decisions should include a photograph if one is availbale in the record: It makes these cases much easier to understand.)

I go through all of this because I wonder if curtilage is as easy as the Court suggests. Here, I agree it's pretty easy. But what about other common cases? For example, imagine the more routine case of a car parked in a driveway in front of a house. Maybe the car is parked in front of an attached garage, or perhaps it is in front of a detached garage some yards from the house. Should that be an easy curtilage issue under Collins, or should it get a complex 4-factor analysis under Dunn? Is Collins just about the special case of a space enclosed by walls right up to the house that happens to be a driveway, or is it a general ruling that applies to driveways?

More broadly, I wonder if curtilage is really "easily understood from our daily experience." Here's the question: If you showed people pictures of different houses, and asked if a particular spot near any particular house was curtilage—explaining the test to them, not giving them the label—would there be rough consensus or would opinions be all over the map? It wouldn't be all that hard to come up with such an experiment, and it would be really interesting to know whether the Court's assumptions about what "daily experience" teaches are widely shared.

NEXT: Another Devastating Review of "Democracy in Chains"

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  1. “As we have explained, we find no basis for concluding that a police inspection of open fields accomplishes such an infringement.”

    Yeah, the problem there was pretending that a fenced in field surrounded by high hedges and trees, and numerous “no trespassing” signs, was an “open” field.

    What do you need to “close” a field, sentry guns and landmines?

    1. The UA 571-C Automated Sentry Gun. When only the best property closure will do… 😀

    2. You need an expectation of privacy that society deems reasonable. The current caselaw is that there is no REP in a field, and no amount of razor wire changes that.

      This might be ‘wrong’ as an interpretive manner, but at least try to clearly state the position you believe is incorrect rather than misconstruing it.

      1. “The current caselaw is that there is no REP in a field, and no amount of razor wire changes that.”

        That’s part of it. But the first rationale in Oliver was simply that open fields aren’t included in the “persons, houses, papers, and effects” protected by the Fourth Amendment. Which is even harder for Brett Bellmore to argue against.

        1. Indeed, I stand corrected. Thank you sir.

  2. Just a bit of help on the “s”/”f” confusion. Antique typography distinguished two forms of the letter “s,” with use varying according to placements in words. If you look closely at an old document which shows both forms, and then compare the one that looks like an “f” to an actual “f”?which you can distinguish by usage?you usually discover that the actual “f” and the alternative “s” are subtly different characters, with the difference shown in the length of the crossbar. For that reason, when transcribing antique type, it is always correct to substitute a modern “s” for the antique alternative. Also, nobody in the 18th century pronounced the alternative “s” as if it were an “f.” Whichever form was used, it was always an “s” for pronunciation.

    One possible confusion comes because typographers were not always punctilious, and used the alternative “s” interchangeably with its near-lookalike “f.” So sometimes you look at an old document and find no discernible difference.

    1. I’m glad someone noted this. If you want to see examples of this, look for a photo of the title page to “Common Sense” by Thomas Paine. The f/s switch occurs in several places.

      Here’s a link to the image on Wikipedia.

      1. Published in Philadelphia in 1776! How appropriate!!

    2. Isn’t that f the long s?

    3. Computers actually have a character for the “long s”: ? The quote should read:

      And if the barn, ?table, or warehou?e be parcel of the man?ionhou?e, though not under the ?ame roof or contiguous, a burglary may be committed therein; for the capital hou?e protects and privileges all it’s branches and appurtenants, if within the curtilage or home?tall.

      The typography rule was to use an “?” except at the end of a word, when you use an “s”. For anyone who has learned cursive, you’ll know that the printed “s” shape is really hard to connect to a following character. Most styles of cursive have a different shape for an “?” that has a following letter; some styles use a modified shape even for terminal “s”, but most use something pretty close to the printed “s”. Typographers followed that rule for some time, but having fewer letters makes moveable type easier, and there really was no reason to have two different lower-case “s”s in type (the capital letter was always the “S” form). By about 1800, typographers had mostly switched to just using the “s” in print.

      1. That is mostly correct, but I’d like to point that, if I’m not mistaken, “?” rarely (if ever) appeared twice in succession, and that it was usually typeset as “?s.” A ligature of “?s” (or “?z”) is what gave rise to the German Esszett character (?), for example.

        1. I thought the German Esszett character (?) was primarily to remove any usage of SS after WWII?

    4. I would have to look for the 18th century versions however my 1622 version of the King James Bible uses the weird ?.

  3. My neighbor and I both access our garages from a dead-end alley owned by the City of Los Angeles. The actual end of the alley, however, is my on property, not city property. It has space to park one car. As a result, my wife and I usually park one of our cars in the dead end.

    This dead end is immediately past the entrance to our garage, which in turn is a few steps from the kitchen door of our house. So would that be considered curtilage? Seems like a hard call under the cases you’ve described, Orin.

  4. The Alito opinion is painful.

    To me, at least.

    1. Yup. In fact reading his opinion it would suggest he is ok opening a connected garage to get to the automobile as long as there is probable cause that it is in there.

      What he has ignored is that the automobile exception is an exception to the “effects” prong not the “house” prong and the Court has routinely noted that the “house” is the most sacrosanct area of privacy for liberty. So relying solely on there being the same concerns with the car meaning you can cross the “house” line is absurd.

      1. “In fact reading his opinion it would suggest he is ok opening a connected garage to get to the automobile as long as there is probable cause that it is in there.”

        I’m extremely skeptical that would satisfy the case-specific inquiry about the degree of privacy intrusion that he says would still be required.

      2. Nah, like jph notes, Alito concludes his opinion by stating “intrusion on privacy” is a relevant factor that would necessitate a warrant, and says entering a house to check a motorcycle represented a greater intrusion on privacy: —

        “This does not mean, however, that a warrant is never needed when officers have probable cause to search a motor vehicle, no matter where the vehicle is located. While a case-specific inquiry regarding exigency would be inconsistent with the rationale of the motor-vehicle exception, a case-specific inquiry regarding the degree of intrusion on privacy is entirely appropriate when the motor vehicle to be searched is located on private property. After all, the ultimate inquiry under the Fourth Amendment is whether a search is reasonable, and that inquiry often turns on the degree of the intrusion on privacy. Thus, contrary to the opinion of the Court, an affirmance in this case would not mean that officers could perform a warrantless search if a motorcycle were located inside a house. See ante, at 7. In that situation, the intrusion on privacy would be far greater than in the present case, where the real effect, if any, is negligible.”

        Because opening a garage is not too much different than opening a house, I don’t suspect his opinion would be much different between the two cases.

        1. “Because opening a garage is not too much different than opening a house, I don’t suspect his opinion would be much different between the two cases.”

          Is it? That would be a case-specific inquiry for Alito. Given his tendencies, I have a strong suspicion as to how he would come out (probably by mis-citing some statute from the late 1700s).

          I’d rather know that the police can’t go in my garage, thank you very much. It keeps me from parking my vehicles in my house.

    2. Honestly, I thought this was a difficult case until I read his opinion. If that’s the best he came up with, it doesn’t seem hard at all. It seems he was very much in favor of a wishy washy “because I feel like it” test for the Fourth Amendment and hardly justifies at all the distinctions he made.

      The majority cited Scher, which I thought was the strongest case on point for him. He doesn’t even cite it once. Instead, he cited cases that have nothing to do with this to excuse a warrant requirement. Essentially, he cites cases involving exigent circumstances to suggest a more relaxed approach. Then he says that it’s OK that the entire fundamental basis of that exception doesn’t apply in this situation because the Carroll Doctrine applies. The Carroll Doctrine may or may not apply but, if it does, those cases provide no support. In trying to anticipate the counterargument, he completely undermines his own argument.

    3. I don’t know, I was sympathetic to it if you view the 4A as nothing more than an exercise in reasonableness. Judging by the photo, there really was no meaningful invasion of privacy to look at the motorcycle’s VIN from under that cover.

      I still agree with the majority that caselaw constrains reasonableness and that curtilage is a thing and so forth. I wouldn’t sign on with him. But it’s not nearly as painful to me as Thomas’ serial-dissent-from-Mapp nonsense.

      1. “But it’s not nearly as painful to me as Thomas’ serial-dissent-from-Mapp nonsense.”

        Well, I dunno. That is painful in a completely different way. More of a Don Quixote way.

        TBH, I’d rather have a crazy concurrence like Thomas than a painful dissent like Alito. Thomas is just fundamentally wrong, but I understand it. Alito … many, he must be taking a lot of yoga for the amount of stretching he is doing.

        1. I’m going to be generous here, but I’m pretty sure you understand Alito.

          It might not be the best framework, but it is very far from incomprehensible. Reasonableness is a function of intrusion and, in this very specific case, we all seem to agree the intrusion on privacy was basically non-existent and so the search was reasonable. You’re not nearly dumb enough not to be able to hold this idea in your mind while simultaneously disagreeing with it.

          That’s not to say there aren’t objections to this logic: that reasonableness is not an untethered inquiry into intrusion or than curtilage is protected or that case-by-case analysis is disfavored when there is a workable general rule. But he’s not stretching, he’s just plain wrong.

          Meanwhile, Thomas is out in la-la-land imagining a world where the entire analysis doesn’t even matter because the police can just admit it was a 4A violation and jail him anyway.

          1. Nope. Disagree. Because there’s a difference between understanding the law as it is, and wishing it were different (a la Thomas) and just completely refusing to apply it (a la Alito).

            So here’s the thing. I think Mapp is important. I think it is right. And, to the extent that it is was neither right nor important, I think it is embedded in our national culture (see, inter alia, Dickerson). That said, I can understand, if not agree with, the tilting at Windmills while still applying it. I don’t approve or condone it, but I understand crazy.

            Alito is much worse. Because curtilage is a pretty tried and true concept. And it’s not like Alito, in ALMOST ANY OTHER CONTEXT, would be a big fan of SEP/OREP for the Fourth Amendment. It’s the horrible pretzel logic he is using to get to his position- even going so far as to completely mangle history. It’s atrocious.

            You can be crazy and okay, like Thomas. But this opinion by Alito IMO is so much worse.

            1. This is not a steel man reading of his dissent. He never denied that curtilage is real, only that the analysis of curtilage goes to whether a search was conducted, not whether the search was reasonable.

              1. “He never denied that curtilage is real,”

                Perhaps the reason that he is alone in his dissent is that to deny the fenced-in area next to the house the same protection would be to effectively deny the curtilage.

                Spin it however you want; this is an atrocious opinion.

  5. It would seem so much simpler to say that if you have trespassed to get the evidence, it is inadmissable. The cynic in me thinks that doesn’t allow enough scope for quibbles and wiggles, so very few lawyers and no prosecutors would ever approve.

    1. That was my reaction as well. If you’d be justified in running off some random passerby who’s poking around your house or stuff, it seems like the police should be held to the same standard, unless they have a warrant or are in hot pursuit or something. “Just wanted to” shouldn’t be sufficient for trespassing.

      1. It’s all about making it look like there are limits, but pushing them out far enough that they generally won’t inconvenience the police.

        Yes, the general principle was, if the police were going to do something an ordinary citizen couldn’t legally do, they needed a warrant. Because they WERE just ordinary citizens, paid to do full time what ordinary citizens were entitled to do, but lacked time to.

    2. That sounds to reasonable for lawyers although basically what I was thinking. If the motorcycle had been uncovered then the evidence would have been in open sight. Same for the vehicle parked in driveway out front; if it’s covered like the motorcycle then there is no evidence in sight.

    3. The space he crossed would be no different than one crossed by door-flyer-hanger or Jehovah’s Witness, neither of which would have been trespassing.

  6. Nice first step. Next, eliminate the automobile exception, because it doesn’t make any sense.

  7. So I’m guessing that, say, a car parking in an apartment or townhouse parking lot or on the street wouldn’t count? That seems like driveway privilege to me. If you are too poor to afford a driveway you don’t get privacy rights.

    1. The same could be said for Jardines. There’s no curtilage in an apartment or long-term stay motel, so the police are free to use drug-sniffing dogs in those cases. My only response is there’s so much negative case law out there that, sometimes, it’s OK that it only claws things back a little bit.

    2. It’s really hard to come up with an operational view of the 4A that eliminates all forms of this privilege. You can try, but fundamentally protection for one’s home & stuff comes for those with a home & stuff.

      Heck, in this case the $100 motorcycle cover was instrumental. If the VIN was uncovered, the officer could have read it off with binoculars from the street without any 4A consequence.

      1. Edit: Just to be sure he was on the right side of Kyllo, a set of binoculars in “commonly available to the public”.

  8. “The citation to Blackstone was to Blackstone’s discussion of the substantive crime of burglary. It included at “…page 225 the following sentence:

    And if the barn, ftable, or warehoufe be parcel of the manfionhoufe, though not under the fame roof or contiguous, a burglary may be committed therein; for the capital houfe protects and privileges all it’s branches and appurtenants, if within the curtilage or homeftall.”

    —————–
    …”it’s branches…”

    Interesting to read. When did the modern usage (ie, “it’s” only when used as a contraction for ‘it is.’) start? Have my years of red-lining “incorrect” usage by law students been off-base??? Given that, today, it’s and its are widely used; I do not know how to use nGrams to check my own question. Any linguists out there with the answer?

    1. On base. But nGram would probably be next to useless, because those kinds of distinctions were treated almost as a matter of happenstance or writer’s preference in the 18th century. Unlikely that a search full of near-random variations would give you much to go on.

    2. …”it’s branches…”

      Interesting to read. When did the modern usage (ie, “it’s” only when used as a contraction for ‘it is.’) start? Have my years of red-lining “incorrect” usage by law students been off-base??? Given that, today, it’s and its are widely used; I do not know how to use nGrams to check my own question. Any linguists out there with the answer?

      Blackstone’s iPhone mis-autocorrected his essay.

  9. Defining curtilage doesn’t always seem obvious. Likening this case to Powell v Florida would seem proper to me, although that case was not referenced in today’s opinion.

    The fact that it was not Collins’ girlfriend’s home and he probably shouldn’t have had standing (had the state not conceded it!) reminded me of a dynamic in Epic Systems from last week.

    In Epic Systems, arbitration agreements were presented mid-employment with consent shown by employees continuing employment. Those facts undermined the majority’s narrative of a freedom to contract. But those facts were irrelevant to resolution of the questions before the court. Justice Ginsburg implicitly recognized that and relegated those facts to a footnote but that still made too much of them. Those facts ran straight to her view that there was a lack of freedom to contract. Subsequent commentators have seized upon those facts to explain why Ginsburg was unquestionably correct.

    In Collins, the justices properly accepted that Collins had 4th Amendment standing notwithstanding the actual facts and the impact that would have had on application of the exclusionary rule. Even Thomas didn’t make hay of it. This makes sense as Thomas wasn’t questioning the fundamental wisdom of the exclusionary rule, but he could have gone that route to try to delegitimize the rule in pursuit of what he thinks the case should have been.

    1. *meant to say “it was Collin’s girlfriend’s home”

  10. I’m going to disagree with Dunn and start with saying if the police have to cross onto your property to see it from the ground, it’s curtilage. We can have that as the starting point.

    1. Asking the justices to reverse precedent rather than fitting your desired result in with existing caselaw is a really bad tactic. At the very least, it does your argument a huge disservice.

  11. Curtilage is an easy concept if you live in suburbia or an urban environment, but if you live in a rural area I think it’s much more difficult concept. What if you have 600 acre farm and let livestock roam? Is curtilage the whole fenced in area? After all, if I steal a pig, or sheep, its clearly a crime. Maybe there is some difference between an “open” field and a not so open field. If so, its easy to spot curtilage ina rural area- someone has fenced it or put up no trespassing (or no hunting) signs?

    1. A fence does not create curtilage in a field (and the “open” part of fields does not denote openness to the outside, it denotes the lack of structures commonly associated with the home). See Oliver v. United States.

      In a rural area, just as anywhere else, the curtilage is the area around the house that are commonly associated to home-like activities.

  12. If, “for most homes, the boundaries of the curtilage will be clearly marked,” except in rural areas I would have to think that the entire property is curtilage. That’s about the only thing that’s clearly marked on a typical suburban home, but that seems like a much more expansive definition than what I was led to believe qualifies as curtilage.

    1. You’d have to read Oliver first then.

      1. Oliver doesn’t say much at all about the limits of curtilage around a typical home. It was about the application of the open fields doctrine to a farm.

        This is footnote 12, where I got the quote from. “The clarity of the open fields doctrine that we reaffirm today is not sacrificed, as the dissent suggests, by our recognition that the curtilage remains within the protections of the Fourth Amendment. Most of the many millions of acres that are “open fields” are not close to any structure, and so not arguably within the curtilage. And, for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage — as the area around the home to which the activity of home life extends — is a familiar one easily understood from our daily experience. The occasional difficulties that courts might have in applying this, like other, legal concepts do not argue for the unprecedented expansion of the Fourth Amendment advocated by the dissent.”

        That seems to me like it’s the entire yard for a typical suburban home.

        1. I misread your post. You are absolutely right.

  13. Question: “This raises a puzzle, how do you identify the curtilage?”

    Answer : “It is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters”
    (the late Justice Scalia meant appropriate behavior while in the curtilage, but I think the same principle can be extended to identifying the curtilage)

  14. I’ve always felt the Supreme Court got privacy wrong but I never knew quite where they went off the rails. Based on the article above, I think it was in Oliver.

    The issue should never have been curtilage or proximity to the house. The relevant issue should have been whether a non-police member of the public would have a right to be there. We have a long tradition that hikers and other pedestrians may cross open fields as long as they reclose farm gates, don’t damage the crops and generally behave responsibly. Of course police could go those same places. The same tradition says you can’t make your treking pass right under the homeowner’s bedroom window.

    And the presumption of permission is completely cancelled by posted “No Trespassing” signs. Oliver was clearly a space where privacy was expected and where non-police would not have been allowed.

    The simple rule should be that if non-police can freely go to X, then so can the police. But if non-police can’t go there, then neither can the police without a warrant.

    1. So let’s assume that the Roassmi-rule is in place. Let’s also assume that a State narrows their trespassing statute to allow hikers to cross open fields at least 100′ away from structures in all cases. That is, they simply remove the criminal prohibition on cross a ‘no trespassing’ sign if certain conditions are met.

      What happens now? Is the scope of 4A protections really determined by the extent of the trespass statute?

      I guess the point is that “whether a non-police member of the public would have a right to be there” is subject to manipulation by the States. And if they learn that they can narrow the scope of the 4A protection by narrowing trespass, some cynical lawmaker might do it for just that reason.

  15. The photograph can be found on page JA 140 of the Joint Appendix. It seems to me that one should read all of the filings in a case before pontificating on the meaning of the decision.

    As to Justice Thomas’ concurrence, the exclusionary rule is written into the California Constitution and is constrained by Federal law. However, California’s state constitutional section which is analogous to the Fourth Amendment (Article I, Section 13) is much more expansive in scope.

    Up until the Jardines decision, the Federal “definition” of curtilage was as clear as mud. This decision goes a long way towards a bright line rule.

    Justice Alito’s dissent was just sad. Given the antipathy expressed by the author of this article toward the Fourth Amendment, I am surprised that he did not embrace the dissent.

    1. Given the antipathy expressed by the author of this article toward the Fourth Amendment,

      Uh, what?

      1. David Nieporent – He has written many articles through the years. I would suggest that you read his briefs in City of Los Angeles v. Patel but I remember you from WAPO. Your levels of reading and comprehension are that of a nematode, so we both know that just ain’t gonna happen.

        1. Spend a lot of time hanging out with nematodes, do you?

        2. You know that a lawyer writing a brief on behalf of a client is not their personal view right? Please tell me you know this. Please please please.

        3. He has written many articles through the years.

          He has indeed written many articles through the years; not a single one expressed antipathy toward the Fourth Amendment.

          but I remember you from WAPO.

          Uh, congratulations, I guess, on not forgetting things from a few months ago?

          1. You came quite close to owing me a new keyboard there 😛

  16. I think both are right. The curtilage itself is an easily understood concept that most people accept. However, the exact boundaries of the curtilage are confused and often unclear. But there are many easy cases like the porch or the part of the driveway in this case and that shouldn’t be forgotten just because there are hard cases (what if the motorcycle was five feet farther away?).

    The good news is the curtilage isn’t a new concept. There should hopefully be a body of case law that helps clear things up.

    1. Would it matter where the motorcycle was sitting? It was covered so no evidence could be observed by the officer which should make it clear that it will be a search requiring a warrant.

      1. After reading the opinion, I don’t think that answer was addressed. If it was in the street under a tarp, it’s possible there would have been a different result. I think the case law is clear you could not search under the tarp if you didn’t have Probable Cause, but it’s less clear whether you can do it with Probable Cause but not warrant.

  17. While the Fourth Amendment doesn’t seem to forbid all trespassing by agents of the government, the 9th Amendment suggests that’s irrelevant, since the people have other rights not written down in the Bill of Rights.

    If the right of private property in land, and the right to exclude trespassers, isn’t one of the rights mentioned in the 9th Amendment, what *would* be protected?

    Of course, a warrant would supersede the right against trespass, or maybe a hot pursuit or whatever, but otherwise, what authority does a government agent have to trespass on you land that a random bum doesn’t have?

    1. Oh, I see that some other commenters have made this point already.

      IIRC, in Blackstone’s time the difference between burglary and stealing something off of an open field was that burglary was a capital crime, so the definition of curtilage was a matter of life and death for the defendant.

      But even if it wasn’t burglary, the defendant could still be punished for going onto someone’s open field and stealing something.

    2. Would a Jehovah’s Witness or door-flyer-guy be guilty of criminal trespass in the same physical space?

      1. I dunno, I thought that without a “no trespassing” sign you implicitly permit people to ring your doorbell, but not to wander around your land looking for stuff.

        1. Here’s what it’s like in Nevada, at least according to a Nevada lawyer.

          My guess would be other states are similar.

        2. This does not appear to apply to Jehovah’s Witnesses in all cases, so which rule applies to the police?

          Also, doesn’t it seem like making the application of the 4A depend on some obscure municipal code seem, uh, a bit odd?

          1. Not all of the link was applicable.

            If an alleged trespasser wants to allege consent, go for it, otherwise I’d say get a warrant or an exigent circumstance etc.

  18. Good decision.

    The power govt officials have over individuals is so enormous and lopsided that every protection a person can have is precious.

  19. I invoke the loki13 rule: whatever Roberts and Kagan agree on is right.

    1. Yeah, that rule may not be 100%, but it’s pretty reliable. Specifically, the rule is, if the two agree, it’s right and, if they disagree, whichever one Justice Alito is not on is right. Even though we didn’t have to reach step 2, it still would have worked.

  20. Determining what qualifies as “curtilage” at an apartment complex proved difficult for the Court in Minnesota v. Carter at oral argument. In Carter, an officer went behind some shrubs to look thru an upturned slat in closed venetian blinds to observe conduct in an apartment.
    While the curtilage issue was not within the question presented, nearly 1/4 of the transcript is dedicated to the issue, including Justice Souter’s pointed question about whether apartments are different:

    QUESTION: Isn’t there something passing strange about the conclusion that the officer was not within the curtilage?
    As I understand the facts, although you speak of common areas and areas open to the public, the officer had gone up next to the building between — in effect between the building and the shrubbery — and was standing there, and I would suppose that if we were dealing with the usual one-family house we would say, well, of course that’s within the curtilage. Why don’t we say it in the case of an apartment building?
    Transcript at 30 (available at https://www.supremecourt.gov/ pdfs/transcripts/1998/97-1147_10-06-1998.pdf). (discussion from page 26-39)

  21. The Thomas concurrence deserves attention for its authoritarian purity: it attacks the exclusionary rule.

    The Alito dissent provides the authoritarian right-wing bookend: It would be unreasonable to require the police to obtain a warrant.

    Unprincipled police and those who disdain liberty couldn’t ask for a more enthusiastic pair of cop succors.

    1. I don’t think it’s fair to lump Thomas in with Alito — Thomas is just arguing that rules and procedures in state constitutional privacy provisions rather than the Fourth Amendment should control. While one can quarrel with that, it’s not necessarily authoritarian — in states like Washington, the constitutional privacy protections are much stronger than the 4th Amendment.

      1. Justice Thomas’ position would whittle the Fourth Amendment. Seems authoritarian enough for government work.

  22. They may look like they are F’s, but they really are S’s, so why transliterate them improperly?

    1. Becaufe it lookf funny.

  23. How does this square with a Florida incident from a number of years back, where police officers serving a restraining order (no warrant of any kind) decided to look in the windows of a house and got butt-hurt when the wife closed the blinds? The officers eventually made illegal entry through the garage, used excessive force on the wife, and were nearly shot by the husband.

    1. I think Florida v. Jardines should be made a required daily reading for the law enforcement personnel.

    2. I won a case based on Jardines where the officer walked to the side of the house and saw a bong in the window. It was complicated by the fact that they had an arrest warrant but no reason to believe the suspect was present (in fact, it was a stale warrant where the individual hadn’t lived there for several years and the police had previously been notified no longer lived there). I argued that they couldn’t rely on the warrant without reason to believe the person was there, they could knock on the front door based on the implied privilege to do that, but they couldn’t wander away from the front door while on the curtilage to look in a window.

      1. This (the suspect’s presence and a reasonable belief it was his residence) would be Payton v. New York, right?

        1. Going strictly from memory, I would say yes – although they only need a reasonable belief he’s present rather than know for a fact that he is. That second prong is an interesting one. They need an arrest warrant, not a search warrant if it is his residence. If it’s not his residence, best practice would be a search warrant, but that’s only because they might want to use any evidence found in the house against the owner. When it comes to the person they’re actually arresting, he wouldn’t have standing to challenge the absence of a search warrant anyway.

  24. Isn’t there an abortion method called “dilution and curtilage”?

    Or am I thinking of curtilage, a kind of connuctive tussue?

    1. Dilation and curettage.

  25. This raises a puzzle, how do you identify the curtilage? The Court seems to go back and forth between thinking it’s easy and thinking it’s hard.

    Lawyer Barbie: “Curtilage is hard.”

  26. If you have 600 acres with roaming livestock you need something (such as a fence or hedge) to keep the livestock out of what might be described in the south as the “dooryard.” That fence or hedge would then probably define the curtilage.

    The remainder of the 600 acres would be open fields (even though they were surrounded by a fence).

    1. ^ Puck is correct.

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