“[A]t the very core” of the Fourth Amendment “stands the right of [an individual] to retreat into his [or her] own home and there be free from unreasonable governmental intrusion.” (Silverman v. United States (1961) 365 U.S. 505, 511.) This protection against unreasonable search and seizure, that is, a search without a warrant, extends to the curtilage of the home. Curtilage is the areas immediately surrounding a home, such as porches, and other protected spaces where individuals maintain significant privacy expectations. Law enforcement searches of curtilage has been challenged, defined, and redefined by our courts for over 150 years.
Even in cases where there is a valid search warrant, a search of a home’s curtilage can render the search unlawful. The U.S. Supreme Court in the case Florida v. Jardines, 569 U.S. 1 (2013) held that after law enforcement brought a drug-sniffing dog to the front porch of a house – that dog immediately alerting to drugs, prompting law enforcement to obtain a search warrant for the home—resulted in an unlawful search even though a warrant was obtained. The evidence (drugsthat were discovered in the search upon warrant) was suppressed because taking the dog to the front porch to sniff for drugs was a violation of the “physical trespass test.” In other words, the court held that the dog sniff itself was a search, and because it occurred on the curtilage of the home, it was a violation of the Fourth Amendment. The upshot of the Jardines case is that law enforcements physical invasion into protected areas can itself trigger Fourth Amendment scrutiny, regardless of whether there’s an expectation of privacy.
Recently, the Ninth Circuit in the case Tran & Chong v. United States (9th Cir. Aug. 14, 2024) 112 F.4th 848, relied upon Jardines when it held that an unlawful search took place when law enforcement entered a residential driveway and peered into the garage on the property.
There the officers saw the defendant in the garage and observed him toss a baggie. Upon this observation, law enforcement conducted a search of the home. The district court denied the defendant’s suppression motion on the grounds that the officer saw the defendant throw the baggie in plain view. (When law enforcement observes a crime in “plain view,” it may be considered an exception to the right to be free of unreasonable searches as provided for in the Fourth Amendment. The Plain View Doctrine permits officers to observe potential evidence in plain view from outside the curtilage and without a warrant to use this observation in investigating a crime, but plain view does not extend to areas where privacy is expected, such as curtilage.)
The Ninth Circuit, upon review, held that the driveway was curtilage and that the officers, under the physical trespass test and the defendant’s reasonable expectation of privacy, violated the defendant’s Fourth Amendment rights.
Why is this important? Understanding curtilage helps individuals assert their privacy rights. As happened in this case and any other case where there is a search in violation of the Fourth Amendment, the evidence will be thrown out upon a successful motion to suppress evidence. Without the crucial evidence, most cases cannot survive, resulting in a dismissal of the charges.
A police officer who peers over a fence into a backyard and upon seeing stolen merchandise conducts a search (even if a warrant is first obtained such as in the Jardines case), a dog sniff for drugs around the perimeter of a house, placing surveillance equipment in areas like porches or patios, peering through a window—all of these are examples of possible violations of the curtilage rule. But there are exceptions, such as emergency circumstances or a search incident to a lawful arrest.
As technology advances, there will be novel challenges. For example, what about drones? The use of drones or other surveillance technology over private property has been debated through the lens of whether this constitutes a trespassory act under the Fourth Amendment. This is an evolving area of the law and is heavily dependent on the circumstances.
If you believe your right to privacy under the Fourth Amendment has been violated, you may have grounds for a motion to suppress. Orange County criminal defense attorney William Weinberg offers a complimentary review of the facts of your case where he will advise you of your defense options. You may contact him at his Irvine office at 949-474-8008 or by emailing him at bill@williamweinberg.com.