Defining the Amorphous World of Curtilage for Fourth Amendment Purposes

Often times officers, in their zeal to obtain evidence against a suspect, enter areas constitutionally protected by the Fourth Amendment. Officers may wrongfully enter upon property of the dwelling of a client, or enter upon protected property, in order to make contact with your client. Or, while illegally on your client's property; law enforcement may observe evidence that may then form the basis for probable cause for a warrant. Sometimes, the unlawful presence of law enforcement on your client's property results in the immediate seizure of property. And sometimes the presence of officers on your client's property results in your client consenting to a search of their residence, which then leads to the discovery of incriminating evidence. During these illegal entries, officers may also obtain incriminating statements from your client --- statements which may form the primary evidence in the case. Importantly, there are circum¬stances where a careful review of the facts, a close inspection of your client's property, and a well researched motion can result in the suppression of the evidence seized.

This article will examine whether an individual has a "subjective expectation of privacy" in certain areas surrounding his or her home or living quarters and whether that expectation of privacy is one that society is prepared to recognize as reasonable. Shapiro v. State, 390 So. 2d 344 (Fla. 1980); See also Dari v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576 (1967). Regarding the location of the police intrusion, it is a question of fact whether the area the officers entered is within the curtilage of the home. United States v. Berion § 712 F2d 1370, 1374 (11th Cin1983); Citing Hodges v. United States, 243 F.2d 281, 283 (5th Cit 1957); US. v. Seidel, 794 F.Supp. 1098, 1102 (S.D.FIa. 1992). It is difficult to find an exact definition of curtilage, The Florida Supreme Court addressed the varying definitions of curtilage and applied a different definition to the term in a Fourth Amendment context than that to be applied in the context of a burglary of a structure, dwelling or convey¬ance. State v. Hamilton, 660 So.2d 1038, 1042-1043 (Fla-1995). The Hamilton Court stared, "[A]s noted previously, in England a person's house with its cluster of outbuildings was usually enclosed by a wall or fence, and this enclosed area was referred to as the curtilage. 4 William Blackstone, Commentaries on the Laws of England 225 (1769). This concept of curtilage was part of the common law, and thus Florida law as well, since Florida incorporated the common law into its own body of laws. However, as the law of burglary has changed, Florida courts have been somewhat inconsistent and imprecise in defining curtilage. This lack of precision may be based, in part, upon the differing contexts in which the issue arises and the different purposes for which the term is used.

Specifically, the use of the common law concept of curtilage, which was used to identify those buildings intimately connected with the privacy of the home, makes good sense in search and seizure cases where expectations of privacy are paramount. On the other hand, utilizing the imprecise concept of curtilage to define the physical parameters of the premises protected by the burglary statute, which finds its theoretical basis and origin in the protection of a person's right of habitation, is awkward and invites inconsistency. See Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law §8.13(c), at 796 (2d ed. 1986); 4 William Blackstone, Commen¬taries on the Laws of England 223 (1769); See Hamilton, Id. at 1042-1043.

In the seventh edition of Black's Law Dictionary, curtilage is defined as "[t]he land or yard adjoining a house, usually] within an enclosure." Black's Law Dictionary 389 (7th ed.1999)_ A further definition provides, "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' ... and therefore has been considered part of the home itself[.]'' Oliver v. US., 466 U.S. 170, 180 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)); See also 25 CJ S. Curtilage, Section 25 (1966) ("The trend of modern decisions, and especially in the United States, has been to enlarge the original meaning of this word, and to include therein any house near enough to the dwelling house to be within its protection as part of the domestic economy of the family, and to consider the same as part of the dwelling house[-])"

If the area is within the property's curtilage, officers have no right to enter upon the property without a warrant. In State v. Parker, 399 So_2d 24, 28 (Fla. 3d DCA 1981), the court held that the expectation of privacy one has in their home has traditionally been extended to include the area surrounding, and related to, the dwelling. The Parker decision also cites a series of cases that may assist the defense practitioner in evaluating the issue of curtilage as a ground for suppression.

In seeking to define the limits of protection courts have afforded to a homeowner's property; State v. Morsman, 394 So.2d 408 (Fla. 1981), is instructive. In that case, the Florida Supreme Court found that a defendant's expectation of privacy extended to the rear, unenclosed yard of the residence. Id. (Note: The Morsman case is cited in many other cases defining curtilage for purposes of a Fourth Amendment evaluation). In Huffer v. State, 344 So.2d 1332 (Fla. 2d. DCA 1977), the court found that the defendant had a reasonable expectation of privacy in a hothouse located behind his home, notwithstanding the fact that it was constructed of clear plastic sheets. Accord State v. Johnson, 301 N.W.2d 625 (N.D.1981) (reasonable expectation of privacy in an unenclosed area to one side of defendant's home); Norman is State, 379 So.2d 643 (Fla. 1980) (tobacco barn within fenced farm was within property's curtilage).

The Morsman decision demonstrates that the courts continue to recognize the sanctity of the home as being "at the very core" of constitutional protection. See Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.ED.2d.94 (2001). This core constitutional protection extends to the outside area adjacent to the home, with the Supreme Court observing that, "the overruling respect for the sanctity of the home" has been "embedded in our traditions since the origins of the republic." Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) The Morsman holding described above, which extends constitutional protections to an unenclosed side and backyard area of a home, is also consis¬tent with the pronouncements of the United States Supreme Court. Perhaps the seminal U.S. Supreme Court case defining the extent of a home's curtilage is US. V. Dunn, 480 U.S. 294 (1987). Dunn lists four factors for courts to consider in defining the curtilage of a home:

  • 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 obser¬vation by people passing by.
    480 U.S. 294, 301, 107 S.Ct. 1134, 1139 (U.S. 1987).

The Dunn Court did not establish a bright line rule. Id at 301, FN. 4. Rather, the Court reasoned:

We do not suggest that combining these factors produces a finely tuned formula that, when mechan¬ically 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 beat 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.

Id at 301, 107 S.Ct. 1134 at 1139 -1140.

Importantly, not all four factors are necessary for the Court to find the area entered upon was curtilage. See US. v. Seidel, 794 F. Supp. 1098, 1103 (S.D.FIa.., 1992) (where three of the four Dunn factors were found to militate in favor of the defendant - the disputed area was only two and one-half acres in size and was located in close proximity to the house). Furthermore, in Katz v. United States, supra, the U.S. Supreme Court held that the Fourth Amendment protects people, not places. The Court observed that the reach of the amendment does not turn upon the presence or absence of a physical intru¬sion into any given enclosure. The Court added that what a person seeks to preserve as private may be constitutionally protected despite the fact that it is in an area acces¬sible to the public. (Emphasis added). 389 U.S. 347 at 351-352.

In addition to the Dunn factors outlined above, if your particular fact set involves multiple dwelling houses on one property (i.e. involves a main residence as well as other living quarters or build- ings), consider the following:

  • Are all utilities (water, sewer, electricity, etc.) monitored by meters located in front of the main home and/or on the side of the main home?
  • Is mail delivered to one mailbox located on the property?
  • Are there separate street numbers or letters designating that the living quarters are separate from the primary home?
  • Are there fences to curtail outside intrusion?
  • Does it appear as if the area intruded upon by law enforcement is clearly private property such that uninvited strangers, salesman and solicitors do not enter upon it?
  • Are the living quarters where officers entered in your case intimately associated with the main living quarters?
  • How close in proximity is the "outbuilding" to the primary residence?

These considerations may aid in your argument that the outbuildings found on the property enjoy the same constitutional protections as the main building" on the property.

Other Florida cases have expanded on the definition of curtilage. Recently, the First District Court of Appeals cited various cases for the premise that consti¬tutional protections pertaining to the side or backyard area of a home do not depend on whether someone might be home, or if invited visitors may sometimes be received at a location other than at the front door of the primary residence. Lollie v. State, So.3d , 2009 WL 1532965, 34 Fla. L. Weekly D1122, (Fla. 1st DCA, June 03, 2009). In Lollie, the prosecution argued there was no reasonable expectation of privacy in the backyard of a house because the rural area where the home was located adhered to a "local custom" where people occasionally would be "received" at the back door. Id. at 1. However, the Lollie court, in accordance with Morsman, held that officers were entitled to approach the front door of the residence, but deemed the warrantless entry into the owner's backyard an unlawful search. Id. at 2. The Morsman/Lollie cases clearly establish that residents have a constitu¬tionally-protected privacy interest in the side and backyard areas of their homes.

In State v. Maggard, 736 So. 2d 763 (Fla. 2d 1999), a deputy obtained information that a residence located next door to Maggard's home had been burglarized. The victim believed Maggard had committed the burglary. The deputy; after knocking on the front door and receiving no response, walked to the backyard of the home between the residence and the fence. The deputy then knocked on the back door. While waiting for a response, the officer saw a barbeque grill located five feet from the back door - evidence that incriminated Maggard in the burglary. The deputy seized the evidence, left, and came back with two other deputies. After some reluctance, Maggard agreed to allow the deputies to search her residence. Id. at 764. The court, citing Morsman, held that, "the trial court erred when it stated that it believed that the officer had a right to walk to the back door of a home just like it was the front door." Id.

Similarly, in Olivera v. State, 315 So.2d 487, 489 (Fla. 2nd DCA 1975), an older but still viable case, narcotics officers, after going to the front door and hearing voices inside an apartment, then went to the back of the apartment. In walking to the back of the apartment, the officers had to leave the sidewalk and walk across some grass in order to get to a window. One of the officers then listened through the window of the apartment and heard incriminating statements regarding drugs being manufactured by the occupants. The officers then knocked on the front door of the residence and barged in under the auspices of exigent circumstances, claiming a drug transaction was occurring. Id. at 488. The Olivera court held that by the officer leaving the sidewalk to stand on the lawn next to the window, the officer invaded Olivera's privacy. The officer's actions in unlawfully entering the property resulted in evidence being obtained which was tainted. Therefore, since the evidence was unlaw¬fully obtained, it could not constitute the probable cause necessary to sustain the state's position. The Court reversed the trial court's order denying Olivera's motion to suppress. Id at 491.

In Pixel v. Wainwright, the Fifth Circuit1 factored into the "privacy equation" the size of a small apartment complex as compared to a larger apartment complex. In Fixel, police entered the backyard area of a four unit apartment complex which was surrounded by a chain link fence and found contraband. The court opined:

While the enjoyment of [Pixel's) backyard is not as exclusive as the backyard of a purely private residence, this area is not as public or shared as the corridors, yards or other common areas of a large apartment complex or motel. Contemporary concepts of living such as multi-unit dwellings must not dilute Fixel's right to privacy any more than is absolutely required. We believe that the backyard area of Fixel's home is sufficiently removed and private in character that he could reasonably expect privacy...

Id. at 484.

What these cases point out is that your client's property rights are paramount. If the court finds that officers were in an area where they had no right to be when they either seized property; saw contraband in plain view or obtained consensual entry from your client when they were illegally on his or her property, all fruits of their illegal entry should be suppressed and excluded from admission into evidence. This includes any statement the State may argue your client subsequently made to officers, as well as all property unlawfully seized by the officers. Wong Sun, 371 U.S. 471,488, 83 S.Ct. 407 (1963); See also State v. Frierson, 926 So.2d 1139, 1143, 1150 (Fla. 2006). This appears to be one area of the law where police action is subject to various boundaries - this includes both property boundaries as well as constitutional boundaries.

1 In Bonnet v. City of Prichard 661 E.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.

Jim Jenkins practices federal and state criminal defense and has his office in Pensacola. He graduated with honors from Florida State University Law school, University of California, San Diego, and St. Petersburg Junior College. Jim has practiced criminal defense for 27 years, having served as an Assistant State Attorney, Assistant Public Defender and Assistant Federal Defender. He is a life member of FACDL and NACDL, and is an active alumnus of Gerry Spence's not-for-profit Trial Lawyers College in Dubois, Wyoming.