Hackers Underworld 2: Forbidden Knowledge/Hackers Underworld 2: Forbidden Knowledge.iso/LEGAL/LEBMAY08.TXT

Text File | 1990-05-21 | 28KB | 515 lines

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