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
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
CONCLUSION
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
FOOTNOTES
(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
(1984).
(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.
