Unwarranted Search of the Curtilage of a Home

Most American citizens know the Fourth Amendment protects their home against unwarranted searches and seizures, but what about the yard, patio, and other curtilage of the home?

Extended protection

Photo by: Natalie Maynor

The Fourth Amendment protects “the right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures” but how far does the protection of the home extend? Although the Fourth Amendment doesn’t specify the area surrounding the dwelling as part of the protected home, the United States Supreme Court has on more than one occasion extended the constitutional protection to include the curtilage surrounding a home. In Oliver v. United States (1984) the curtilage was said to be the “area to which extends the intimate activity associated with the sanctity of man’s home and the privacies of life”.

Curtilage defined

According to Black’s Law Dictionary, the Curtilage of a home is “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”. The U.S. Supreme court stated in United States v. Dunn (1987) 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.”

Visibility of illegal items or activity

Law enforcement officers are permitted to enter the curtilage of a home to knock on the door, although this does not permit them to do a search of the perimeter of a home without a warrant. This protection of the home’s curtilage does not dismiss illegal items or activities in plain view however. In United States v. Bausby (2013) officers saw a motorcycle in the yard of Chris Bausby that matched the description of a motorcycle stolen months prior. The motorcycle was in plain site from the street, and had a “for-sale” sign drawing attention from anyone passing by. Officers entered the yard, knocked on the door, and the proceeded to identify the VIN number on the motorcycle. A search warrant was issued and the stolen motorcycle and other items were confiscated. U.S. Supreme Court dismissed a Bausby’s claim of a Fourth Amendment violation by stating: “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection” (Katz v. United States 1967).

Photo by: Nana B. Agyei

Open fields doctrine

While items openly visible to the public are not protected under the home’s curtilage, neither are large areas on the property that are unable to be closed in such as open fields. In Oliver v. United States (1984) The Supreme Court noted that “. . . open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops that occur in open fields.”

Help defending searches of home’s curtilage

Utah residents facing criminal charges who feel their Fourth Amendment rights protecting their home’s curtilage from unwarranted searches and seizures was violated are encouraged to find a reputable attorney to go over the case. A respectable attorney will help to defend the charges against them and ensure they maintain the privacy and protection promised by the United States Constitution.

Right of a Probationer to Refuse Consent to Search by Police

Offenders on probation have to follow strict rules to ensure their freedom including permitting AP&P officers to visit them at home and work, conducting searches anytime without a warrant; however the Fourth Amendment protects the probationer the right to refuse consent to search when approached by the police.

Knock and talk

7983552552_c70b8d6c86_z

Photo by: Chris Yarzab

Police officers will often use a controversial investigative technique called a “knock and talk” to gather information and possibly gain admission to a residence without having reasonable suspicion of a crime. This is done simply by knocking on the door and asking to speak to the resident or even asking to come in. The neighboring Ninth Circuit Court of Appeals which governs appeals in the western U.S. stated “T]here is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof — whether the questioner be a pollster, a salesman, or an officer of the law.”

Come on in!

Donald William Fretheim of Cedar City Utah was on probation following a conviction for drug possession and distribution when a pair of officers with the narcotics division used the knock and talk approach at his door. While investigating a drug case in the neighborhood, they found their way to Fretheim’s apartment. The officers asked Fretheim if they could come into his apartment to speak with him to which he agreed and willfully let them enter.

Consent to search

Once inside Fretheim’s apartment, the officers spotted a soft drink can on the ground that appeared to have been constructed into a cheap pipe used to smoke marijuana. When questioned about it, Fretheim admitted it was drug paraphernalia and gave the officers consent to search the rest of his apartment. The consensual search turned up with additional paraphernalia along with marijuana and methamphetamine. After being read his Miranda rights, Fretheim confessed to the police officers that the drugs and paraphernalia were his.

Probation searches apply to AP&P officers only

Consent to Search

Photo by: Hernán Piñera

Since Fretheim was on probation, he assumed he had to comply with the police officers’ request to speak with him, enter his home, and search his belongings. The reason he thought this was possibly due to the declaration in the Probation Standard Conditions issued by the Utah Department of Corrections stating that being a probationer, he must “Permit officers of Adult Probation and Parole to search [his] person, residence, vehicle or any other property under [his] control without a warrant at any time, day or night upon reasonable suspicion to ensure compliance with the conditions of the Probation Agreement.”

Mistakenly waived Fourth Amendment rights

Unfortunately, Fretheim was unaware that although he was on probation, his Fourth Amendment rights still allowed him to refuse consent to search as long as it was not by an AP&P officer. When he permitted officers to not only enter his apartment but to search his home as well, he waived his Fourth Amendment rights to search and seizure. Even though he was unaware of his right to refuse consent to search, he gave his permission so the consent was deemed valid in court.

Know your rights

When police knock at the door it can be intimidating and most residents wish to be compliant with law enforcement. It may seem illegal to deny them entry to a home and feel downright criminal to ignore the door completely. This is why it is important for individuals to understand their constitutional rights, especially during “knock and talk” approaches when the police have no legal reason to be at their home. Unless an officer has a warrant or demands to enter, the occupant has a choice. If an officer asks permission to enter or search the home, the resident has the option whether to even respond; just as they would to a nosy neighbor or a door-to-door salesman. For more information on your Fourth Amendment rights regarding searches and seizures so you can be prepared if law enforcement knocks at your door or for counsel regarding charges, contact a criminal defense attorney.