Curtilage

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In common law, the curtilage of a house or dwelling is the land immediately surrounding it, including any closely associated buildings and structures, but excluding any associated "open fields beyond". In feudal times every castle with its dependent buildings was protected by a surrounding wall, and all the land within the wall was termed the curtilage. [1] The term excludes any closely associated buildings, structures, or divisions that contain the separate intimate activities of their own respective occupants, with those occupying residents being persons other than those residents of the house or dwelling of which the building is associated. [2]

Contents

In some legal jurisdictions, the curtilage of a dwelling forms an exterior boundary, within which a home owner can have a reasonable expectation of privacy and where "intimate home activities" take place. It is a basic legal concept underlying the concepts of search and seizure, conveyancing of real property, burglary, trespass, self-defense, and land use planning.

In urban properties, the location of the curtilage may be self-evident from the position of fences or walls. For larger, more rural properties, it may be a matter of debate as to where the private area ends and the "open fields" start. [3]

Etymology

The word derives from Middle English : courtelage; Old French : cortillage or cortil ("court, yard, garden"); cort (court) + -il (diminutive suffix) + -age (-age).

Curtilage in United States law

Common law

At common law, which derives from English law, curtilage has been defined as "the open space situated within a common enclosure belonging to a dwelling-house." [4] Black's Law Dictionary of 1891 defined it as:

"The enclosed space of ground and buildings immediately surrounding a dwelling-house. In its most comprehensive and proper legal signification, it includes all that space of ground and buildings thereon which is usually enclosed within the general fence immediately surrounding a principal messuage and outbuildings, and yard closely adjoining to a dwelling-house, but it may be large enough for cattle to be levant and couchant therein."

Where American homes are generally less likely than their English counterparts to include fenced or walled enclosures, the courts have not strictly held to such a requirement. In practice, determining the boundaries of curtilage has proven to be imprecise and subject to controversy.[ citation needed ]

Fourth Amendment

General definition

The U.S. Supreme Court has held that for the purposes of the Fourth Amendment, an area immediately surrounding a house or dwelling is curtilage if it harbors the "intimate activity associated with the 'sanctity of a man's home and the privacies of life.'" [6]

In United States v. Dunn (1987), [7] the Court provided guidance, saying that, "curtilage questions should be resolved with particular reference to four factors: 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 observation by people passing by."

In Florida v. Jardines (2013), [8] [9] the Court held, in a 5–4 decision by Justice Antonin Scalia, that the curtilage is protected from police dogs sniffing for marijuana: [10]

We therefore regard the area "immediately surrounding and associated with the home"—what our cases call the curtilage—as "part of the home itself for Fourth Amendment purposes." ... That principle has ancient and durable roots. Just as the distinction between the home and the open fields is "as old as the common law," ... so too is the identity of home and what Blackstone called the "curtilage or homestall," for the "house protects and privileges all its branches and appurtenants." ... This area around the home is "intimately linked to the home, both physically and psychologically," and is where "privacy expectations are most heightened."

Florida v. Jardines (2013), citations placed in the endnote [11]

In Collins v. Virginia (2018), the Court ruled that motor vehicles parked within the curtilage do not qualify for the motor vehicle exception for a warrantless reasonable search.

In Caniglia v. Strom [12] (2021), the Court noted only a "... few permissible invasions of the home and its curtilage. Perhaps most familiar, for example, are searches and seizures pursuant to a valid warrant." [13] The court rejected the standalone doctrine that police "caretaking" duties justify warrantless searches and seizures in the home and its curtilage.

First factor: distance

In Dunn, the Court said that the location of a barn, being 60 yards (55 m) from the home and 50 yards (46 m)outside of the fence which completely encircled the home, suggested that it was outside the home's curtilage.[ citation needed ]

In Jardines, the Court found that a porch right in front of a private house is part of the curtilage. [9] [14]

Second factor: enclosure by fence

In Dunn, the Court said that although the area was surrounded by a fence, the home was surrounded by a different fence and that fence was obviously intended to demark a specific area of land immediately adjacent to the house that is readily identifiable as part and parcel of the house.[ citation needed ]

Third factor: nature of use

In Dunn, the Court said that law enforcement officials had evidence that the area was not being used for intimate activities of the home, namely that it was being used to store large amounts of phenylacetic acid (used in the illegal manufacture of drugs) and that it had a very, very strong smell.[ citation needed ]

In Jardines, the Court specifically named a front porch as a prime example of curtilage; even though Girl Scouts or salespersons can knock on the front door, they must leave immediately if there is no answer. [9]

Fourth factor: protection from observation

In Dunn, the Court said the area was not protected at all from observation by those standing in open fields. Although agents did peer into a barn that was arguably protected by the Fourth Amendment, any such observation from open fields was not protected. (This is the "plain view doctrine", though it is not labeled as such in Dunn.)[ citation needed ]

In Jardines, the Court noted that, while police can stop a person on an open highway, they are prohibited from peering into the windows of a private home from the front porch, absent probable cause. [9]

History

The Fourth Amendment protects "persons, houses, papers, and effects". In modern cases, the Supreme Court interprets "a house" to mean "a home and its curtilage". It is not obvious when the Court first equated "house" with "home", though Prigg v. Pennsylvania (1842) seems to assume that "house" means "home".

The first uses of the term "curtilage" by the Supreme Court appeared in the decisions of two unrelated cases from 1864. United States v. Stone (1864), [15] involved a boundary dispute over Fort Leavenworth, as to "what lands properly belonged to this military post, and the proper curtilage necessary for the use and enjoyment of it".

In Sheets v. Selden's Lessee (1864), [16] the Court referred to "a grant of a messuage or a messuage with the appurtenances will carry the dwelling-house and adjoining buildings, and also its orchard, garden, and curtilage."

Application

The Supreme Court holds that the Fourth Amendment protects homes and their curtilage from unreasonable searches without a warrant. However, curtilage is afforded less protection than a home. Absent "No Trespassing" signs or fences with locked gates, it is considered reasonable for a person (including a police officer) to walk from a public area to the obvious main entrance to the home using the most obvious path in order to "knock and talk" with a resident. But otherwise, government agents need consent, a warrant, or probable cause of exigent circumstances to enter a home's curtilage.

Many state constitutions have clauses similar to the Fourth Amendment of the U.S. Constitution, and many have "castle laws" which use the term "curtilage". Although states are entitled to interpret their definitions different from (and subordinate to) the U.S. Fourth Amendment, they generally interpret "houses" the same way as does the Supreme Court, including its definition of "curtilage".

In UK listed-building legislation

The concept of curtilage is relevant to town and country planning in the United Kingdom, particularly as it relates to listed building legislation. The consideration afforded to a listed building may extend to other structures or landscape within the curtilage of the primary structure, if the item(s) in the curtilage is old enough, and physically attached to the main building or otherwise important to the setting of the structure. Current legislation uses a cut-off date of 1947, so that later additions, while they may be within the curtilage, are not included in the listing designation. [17]

The listing of a building or structure does not define its specific curtilage, and so this can become a matter of interpretation and contention. Various factors need to be taken into account, such as the way that the setting works with the primary object, the ownership of the land, the historic use of the land, and physical or visual boundaries, such as fences, walls and hedges.

Curtilage is frequently undefined until someone wishes to make a change to a structure or landscape in the immediate vicinity of a listed building. Some Local Planning Authorities (such as Bournemouth Borough Council) publish provisional curtilages, to assist property owners; but frequently the curtilage is left undefined until such time as it may be challenged in the planning process or in law. [18]

See also

Related Research Articles

Fourth Amendment to the United States Constitution 1791 amendment prohibiting unreasonable searches and seizures

The Fourth Amendment to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures. In addition, it sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must particularly describe the place to be searched and the persons or things to be seized.

In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or formulation for probable cause. One traditional definition, which comes from the U.S. Supreme Court's 1964 decision Beck v. Ohio, is when "whether at [the moment of arrest] the facts and circumstances within [an officer's] knowledge and of which they had reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that [a suspect] had committed or was committing an offense."

In law, a dwelling is a self-contained unit of accommodation used by one or more households as a home - such as a house, apartment, mobile home, houseboat, vehicle, or other "substantial" structure. The concept of a dwelling has significance in relation to search and seizure, conveyancing of real property, burglary, trespass, and land-use planning.

Open-fields doctrine U.S. legal rule allowing warrantless searches of private property not near houses

The open-fields doctrine, in the U.S. law of criminal procedure, is the legal doctrine that a "warrantless search of the area outside a property owner's curtilage" does not violate the Fourth Amendment to the United States Constitution. However, "unless there is some other legal basis for the search," such a search "must exclude the home and any adjoining land that is within an enclosure or otherwise protected from public scrutiny."

Katz v. United States, 389 U.S. 347 (1967), was a landmark decision of the U.S. Supreme Court in which the Court redefined what constitutes a "search" or "seizure" with regard to the protections of the Fourth Amendment to the U.S. Constitution. The decision expanded the Fourth Amendment's protections from the right of search and seizures of an individual's "persons, houses, papers, and effects", as specified in the U.S. Constitution, to include as a constitutionally protected area "what [a person] seeks to preserve as private, even in an area accessible to the public".

Florida v. Riley, 488 U.S. 445 (1989), was a United States Supreme Court decision which held that police officials do not need a warrant to observe an individual's property from public airspace.

California v. Greenwood, 486 U.S. 35 (1988), was a case in which the Supreme Court of the United States held that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home.

Kyllo v. United States, 533 U.S. 27 (2001), was a decision by the Supreme Court of the United States in which the Court held, 5–4, that the use of thermal imaging devices from a public vantage point to monitor the radiation of heat from a person's home is considered a "search" within the meaning of the Fourth Amendment, and therefore requires a warrant. In the majority opinion authored by Justice Antonin Scalia, the Court argued that because the government was using FLIR devices to "explore details of the home that would previously have been unknowable without physical intrusion", then the scan is to be considered unreasonable surveillance unless a warrant is obtained.

Expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. It is related to, but is not the same as, a right to privacy, a much broader concept which is found in many legal systems. Overall, expectations of privacy can be subjective or objective.

Illinois v. Caballes, 543 U.S. 405 (2005), was a decision by the Supreme Court of the United States in which the Court held, 6–2, that the use of a drug-sniffing police dog during a routine traffic stop did not violate the Fourth Amendment if the use of the dog does not unreasonably prolong the duration of the stop. Chief Justice William Rehnquist took no part in the consideration of this case, and did not vote nor author an opinion. According to Justice John Paul Stevens, who authored the majority opinion, the Constitution does not require the police to have reasonable suspicion to use a police dog on a car during a legal traffic stop.

Oliver v. United States, 466 U.S. 170 (1984), is a United States Supreme Court decision relating to the open fields doctrine limiting the Fourth Amendment to the United States Constitution.

United States v. Dunn, 480 U.S. 294 (1987), is a U.S. Supreme Court decision relating to the open fields doctrine limiting the Fourth Amendment of the U.S. Constitution.

<i>United States v. Hatch</i>

United States v. Hatch, 931 F.2d 1478, cert. denied, 502 U.S. 883 (1991) is a United States Court of Appeals for the Eleventh Circuit court decision relating to the open fields doctrine limiting the scope of the Fourth Amendment of the U.S. Constitution.

<i>United States v. Pace</i>

United States v. Pace, 955 F.2d 270, cert. denied, 502 U.S. 883 (1992) is a United States Court of Appeals for the Fifth Circuit court decision relating to the open fields doctrine limiting the scope of the Fourth Amendment of the U.S. Constitution.

California v. Ciraolo, 476 U.S. 207 (1986), was a case decided by the United States Supreme Court, in which it ruled that warrantless aerial observation of a person's backyard did not violate the Fourth Amendment to the United States Constitution.

Soldal v. Cook County, 506 U.S. 56 (1992), was a United States Supreme Court case in which the Court held that a seizure of property like that which occurs during an eviction, even absent a search or an arrest, implicates the Fourth Amendment. The Court also held that the Amendment protects property as well as privacy interests, in both criminal as well as civil contexts. Finally, saying that "certain wrongs affect more than a single right", the Court left open the possibility that the Fourteenth Amendment's protections against deprivation of property without due process of law may also be implicated.

In United States Constitutional Law, a minimally intrusive/invasive warrantless search is a type of search that does not breach the boundaries of the property and is performed without any prerequisite search warrant. These searches are contested regularly in courts, and have been ruled for and against under different circumstances. The primary debate concerns the method in which the search is conducted, and also the area being searched. Issues concerning warrantless search and subsequent seizure are always of local concern, because they are a community law enforcement issue as well as a national law issue.

<i>Florida v. Jardines</i> 2013 United States Supreme Court case

Florida v. Jardines, 569 U.S. 1 (2013), was a United States Supreme Court case which resulted in the decision that police use of a trained detection dog to sniff for narcotics on the front porch of a private home is a "search" within the meaning of the Fourth Amendment to the United States Constitution, and therefore, without consent, requires both probable cause and a search warrant.

Dow Chemical Co. v. United States, 476 U.S. 227 (1986), was a United States Supreme Court case decided in 1986 dealing with the right to privacy and advanced technology of aerial surveillance.

Collins v. Virginia, No. 16-1027, 584 U.S. ___ (2018), was a case before the US Supreme Court involving search and seizure. At issue was whether the Fourth Amendment's motor vehicle exception permits a police officer uninvited and without a warrant to enter private property, approach a house, and search a vehicle parked a few feet from the house that is otherwise visible from off the property. In an 8–1 judgement, the Supreme Court ruled that the automobile exception does not apply to vehicles parked within the home or the curtilage of a private homeowner.

References

  1. Wikisource-logo.svg One or more of the preceding sentences incorporates text from a publication now in the public domain : Chisholm, Hugh, ed. (1911). "Curtilage". Encyclopædia Britannica . Vol. 7 (11th ed.). Cambridge University Press. p. 651.
  2. "STATE v. HAMILTON 290 P.3d 271 (2012) Leagle.com". Leagle. October 3, 2012. Retrieved November 30, 2016. By definition, a separate and independent residence cannot be part of the curtilage of another residence, because each separate residence contains the intimate activities of its own respective occupants.
  3. "Legal briefing - The extent of listing 3". Context 97. Sweet & Maxwell. November 2006. Sir Graham Eyre QC, sitting as deputy judge, considered that in determining the nature and extent of the curtilage of a dwellinghouse, it is important that it should serve the purposes of the dwelling in some necessary or useful manner ... On the facts in this case, the rough part of the garden could not be described as part of the curtilage of the cottage, since it did not serve the cottage... One definition of curtilage often cited is ‘the ground which is used for the comfortable enjoyment of the house or building... serving the purpose of the house or building in some necessary or reasonably useful way’. This formulation, from Sinclair-Lockhart’s Trustees v Central Land Board (1951), is not very precise...
  4. Bouvier, John (1856) [1st pub. 1839]. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union: With References to the Civil and Other Systems of Foreign Law. Vol. I.
  5. Black, Henry C. (1891). Dictionary of Law, Containing Definitions of Terms and Phrases of American and English Jurisprudence, Ancient and Modern: Including the Principal Terms of International, Constitutional and Commercial Law; with a Collection of Legal Maxims and Numerous Select Titles from the Civil Law and Other Foreign Systems 1891 (1st ed.). The Lawbook Exchange, Ltd. p. 311. ISBN   978-0-9630106-0-5 . Retrieved 6 December 2012.
  6. Oliver v. United States , 466 U.S. 170, 180 (1984) (quoting Boyd v. United States , 116 U.S. 616, 630 (1886))
  7. United States v. Dunn , 480 U.S. 294 (1987)
  8. Florida v. Jardines , 569 U.S. ___ (2013)
  9. 1 2 3 4 "Florida v. Jardines". Cornell Law School. March 26, 2013. Retrieved March 28, 2013.
  10. Frank B. (March 26, 2013). "Supremes put a leash on drug-sniffing dogs at your home". DailyKos . Retrieved March 28, 2013.
  11. Florida v. Jardines , 569 U.S. at ___, citing Oliver v. United States , 466 U.S. 170 (1984) at 180; Hester v. United States , 265 U.S. 57 (1924) at 59; 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769); and California v. Ciraolo , 476 U.S. 207 (1986) at 213.
  12. 593 U.S. ___ (2021)
  13. "Caniglia v. Strom" (PDF). United States Supreme Court. May 17, 2021. p. 3. Retrieved May 18, 2021.
  14. Florida v. Jardines , 569U.S.1 (26 March 2013).
  15. United States v. Stone, 69 U.S. 525 (1864)
  16. Sheets v. Selden's Lessee, 69 U.S. 177, 187 (1864)
  17. Planning (Listed Buildings and Conservation Areas) Act 1990
  18. In Re West Norwood Cemetery (1997), the Chancellor of Southwark found that the curtilage of the 65 listed buildings inside West Norwood Cemetery extended across the whole 40 acres of the cemetery up to, and including, the boundary walls.