Found at: 0x1bi.net:70/textfiles/file?law/lebmay08.law

May 1990                                                          


                     John Gales Sauls                           
                       Special Agent
                     Legal Instructor
                        FBI Academy     

     Suppose a police officer, executing a search warrant 
authorizing the seizure of cocaine, is searching a residence in 
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 
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 

     These officers are grappling with the concept of curtilage. 
The first officer needs to determine whether the outbuilding is 
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 
boundaries of a particular residence's curtilage so as to 

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 
``unreasonable searches and seizures.'' (3)  Determining the 
boundaries of curtilage, however, is considerably more 

     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 
curtilage.  Fortunately, other U.S. Supreme Court and lower court 

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, 
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 

     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 
the fourth amendment warrant requirement. (8)  If no search or 
s unnecessary for an officer to factually justify his actions. (9)

     A search, for fourth amendment purposes, occurs when 
expectation of privacy.'' (10)  As will be hereafter discussed, 
assessing whether a particular action by the government intrudes 
nto 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 
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 
curtilage. (12)                                                      

     Where necessary, an officer may take steps to improve his 
view without his actions constituting a search, so long as he 
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 
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 
that could not be viewed from a closer public vantage point.  For 
example, officers who concealed the existence of their 
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 
addition to the barn and unusually wide tire tracks leading to 
the barn.  These actions were held not to constitute a search 

     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 
     The information that officers gather by seeing what has been 
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 
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 
marijuana plants was held to be illegal.  Even though the 
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, 
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 
access areas of the residence's curtilage without a warrant 
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 

     In United States v. Smith, (24) for example, an officer drove 
nto the driveway of the defendant's 70-acre farm and saw from
Although there was a wire fence along the highway, the court in 
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 
mplied 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 
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 
United States v. Van Dyke, (27) officers began a surveillance of a 
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 
Although quite distant from the house, this area was held to be 
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 
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 
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 
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, 
``premises,'' officers should understand this to include the 
curtilage and outbuildings (that are clearly not other 

     Three circumstances have been identified where the concept 
of curtilage has legal significance to police officers.  First, 
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 
This is because if the area is curtilage their enhanced viewing 
s 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 
curtilage, the officers should, absent emergency circumstances, 
officer mentioned in the beginning of this article is faced with 
nto are likely within a nonaccess portion of the curtilage, and
the officer would need a warrant in order to lawfully view his 
     Finally, officers executing search warrants, such as the 
first officer mentioned in the beginning of this article, need to 
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 

     Where a determination regarding curtilage is required, 
officers should make a common sense assessment using the factors 
from the residence; (2) whether the area is included with the 
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 
constitute curtilage.  If the area is farther away, the other 
factors will also be of significance.  In a close case, it is  
This will serve as a safeguard that the officers' actions are 


(1) 480 U.S. 294 (1987).                                        
(2) Id., at 300 (quoting Oliver v. United States, 466 U.S. 
(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 
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 
(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 

(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 
nformation 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. 

(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).  
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 
view or it's not.  The court was not required to decide the issue 
n Cuevas-Sanchez since the officers in that case got prior
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. 
trash bags which were just inside a knee-high chain fence 
States v. Reed, 733 F.2d 492 (8th Cir. 1984) (officer entered 
fenced back parking lot of commercial establishment through open 
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), cert. denied, 432 U.S. 

(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 
cert. denied 449 U.S. 903 (1980) (warrant describing residential 

(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. 
noting that the ``better practice'' would be to specifically 
nclude the car in the warrant where possible).

(33) See United States v. Frazin, 780 F.2d 1461 (9th Cir. 
based upon curtilage, stating ``[w]e have upheld searches of all 
the property at a listed street address under warrants that 
a multiunit building or collection of separate buildings is used 
as a single entity, where the defendant is in control of the 
accord, United States v. Alexander, 761 F.2d 1294 (9th Cir. 
cert. denied, 465 U.S. 1100 (1984) (approving the search of a 
large stucco house where the house and the adjacent cottage 
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 
either within the curtilage and thus within the warrant's 
authorization, or in an ``open field,'' thus requiring no 

(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 
adviser.  Some police procedures ruled permissible under Federal 
constitutional law are of questionable legality under State law 
or are not permitted at all.