In recent articles (see here, here and here) I’ve discussed some of the issues around curtilage. Curtilage is that invisible legal boundary that stretches Fourth Amendment protections for a home beyond the brick-and-mortar walls of the home to the area that the property owner reasonably claims as part of “living space” or an area of private control. Courts traditionally defined the curtilage as the area extending 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 (1886)). Relegated to the margins of Fourth Amendment jurisprudence for many years, the concept of curtilage took on new vitality in United States v. Jones (132 S. Ct. 945 (2012)).
In Jones, Justice Scalia’s majority opinion held that a search occurs when officers trespass on personal property (in the Jones case, the trespass occurred when officers attached a GPS tracking device to a car). In Florida v. Jardines (133 S. Ct. 1409 (2013)), the Supreme Court pumped even more life into the curtilage doctrine, holding that a sniff by a specially trained detector dog was a search when conducted on the curtilage of a home. A clear majority of the justices in Jones and Jardines expressed interest in more intently exploring the collision of technology developments and trespass doctrines.
After United States v. Jones, defense attorneys considered new ways to claim Fourth Amendment protection for criminal defendants. With the development and proliferation of new technologies—such as automated license plate readers; drones with high-definition cameras; facial recognition readers; surveillance cameras on street corners, bus stations, toll booths and subways; gunfire recognition and location tools; and aural surveillance in public—I expect to see even more creative curtilage arguments in the courts.
In this case, officers received a tip that Patterson was selling drugs from his residence. Officers obtained a search warrant that described the place to be searched as “premises of 2720 N. Erie.” The warrant authorized a search of the “premises” for items related to the sale of illegal drugs, evidence of occupancy or ownership of the residence, firearms connected with the sale of drugs, scanners or radios used in the sale, and indicia of gang affiliation or membership, including clothing. The affidavit stated that Patterson’s juvenile son also resided at the location. Patterson’s juvenile son had a criminal record and was identified as a criminal street gang member.
As officers approached to execute the warrant, they saw Patterson’s juvenile son sitting behind the wheel of a white Mercedes backed into the driveway. The officers ordered him to get out. They searched the Mercedes—which was not included in the search warrant—and found a glass container with white crusty residue, a box of sandwich bags, a digital scale with powdery residue and a handgun.
Patterson claimed that the search of the Mercedes was outside the scope of the search authorized by the warrant. He asserted that the Mercedes was outside the curtilage when parked in the driveway. The court declined to apply a curtilage analysis, reasoning that defining curtilage “is a complex legal exercise and risks ‘hypertechnical’ warrant interpretations which, at a minimum, will interfere with the ability of law enforcement officers to clearly understand the extent of the warrant.”
The court stated that the better analytical approach is to consider whether the Mercedes was on the “premises” described in the warrant. The court explained that “premises” describes more than just the “building.” A search of “premises” extends the lawful scope of the search to include those areas that are typically defined as being within the curtilage. The word “premises” sets the outer boundary of a warrant’s scope at “the totality of the unit of property ownership.”
The court offered an alternate basis to search the Mercedes, explaining that the car was a mobile container that could have (and, in fact, did) contain the items sought in the warrant. Patterson countered that the car could have been driven to the home by an innocent third party, and thus should have been protected from the search. The court disagreed, reasoning that the officers reasonably believed that the Mercedes was under the control of one of the home’s occupants: “The position of the car in the driveway, the manner in which it was parked, and its nearness to the house all suggested that the car belonged to a resident of the household and not a visitor.”
Although the court ruled in favor of the officers in this case, whenever possible, the better course is to include in the warrant the description of the vehicles likely to be at the home at the time of search. Of course, that may not always cover a car that drives up to the premises at the time of the search. In such a case, officers should note any factors connecting the vehicle, driver and any occupants to the place to be searched and the items named in the warrant.
