Personal curtilage: Fourth Amendment security in public.

• Author: Ferguson, Andrew Guthrie
• Position: II. The Curtilage Principle C. Open Questions About Trespass through V. Concerns and Questions, with footnotes, p. 1324-1364

3. Open Questions About Trespass

   Despite curtilage's currency in the modern Fourth Amendment doctrine, a question remains to be answered in mapping out the relationship between curtilage and trespass. This uncertainty centers on the level of protection the curtilage area should receive from sense-enhancing technology.

   A few points are clear. After Jardines, curtilage is protected from physical entry--"physically intruding." (236) Further, after Florida v. Riley and California v. Ciraolo, curtilage is not protected from plainview observations. (237) But, left unresolved is what level of protection curtilage should have from sense-enhancing technologies that reveal intimate details that could not be observed with the naked eye. (238) In other words, are persons in the curtilage of their home protected from sense-enhancing technologies that reveal information--especially activities--that could not be observed by law enforcement using their ordinary senses?

   Although admittedly an open question, this Article chooses to expand curtilage protection to include invasions of intimate activities by sense-enhancing technologies. Justice Scalia's statement in Jardines, that courts must protect curtilage as they do homes, provides the initial justification for this argument. (239) Cases like Oliver and Florida v. Riley also specifically recognize that protected activities occur in the curtilage. (240) This equivalence makes sense when thinking about new surveillance technologies. If sensitive audio surveillance technology can listen through walls, it should not matter if I whisper a secret to my wife on our front porch curtilage or in our bedroom. The technology can hear both. Without the technology neither conversation could be overheard. Thus, both activities should be equally protected if they cannot be heard by ordinary "plain hearing" means, but only through physical invasion of property or its equivalent, that is, sense-enhancing capture.

   Precedent does not require a contrary answer. None of the prior Supreme Court cases that address observation--as opposed to physical invasion--into the curtilage area involve sense-enhancing technologies. (241) Even the over-flight cases involve police officers looking with their ordinary, unenhanced vision to observe the contraband at issue. (242) With the exception perhaps of Dow Chemical involving surveillance of an industrial commercial complex, (243) there is no case that allows sense-enhancing invasion of protected constitutional spaces like the curtilage. Thus, to keep the level of protection consistent, curtilage, like the inside of a home, should be protected from sense-enhancing observations that reveal things not observable with ordinary senses.

   For purposes of this Article, curtilage will be understood to protect both physical invasion and sense-enhanced invasion of a constitutionally protected space. It expands the fiction and creates a flexible rule that provides a security-based rationale that mixes property rights, privacy rights, and autonomy rights consistent with a muddled Fourth Amendment history.

4. Current Reality of Curtilage in the Courts

   The roots of common law curtilage are long but shallow. The theory remains good law, and yet, in application, protection of the curtilage has been rather limited. Courts have not been protective of curtilage areas observable by aerial surveillance. (244) Numerous federal and state cases have found no protection of curtilage due to the configuration of the property or limits to the apparent privacy expectation of the property owners. (245) As discussed, the Supreme Court's own line drawing provides no comfort for those expecting robust privacy in such areas. Curtilage exists as an organizing principle of Fourth Amendment law with limited practical strength.

   Yet, curtilage has value as an organizing principle. For purposes of this Article, I consider curtilage less of a fixed area of protection than a recognition that the law is willing to expand protection beyond the four walls of an enclosed home. (246) In seeing the possibility of expanding the concept of curtilage from an emphasis on property to an emphasis on personal security in public, it offers new avenues for analysis. As the next Part will discuss, freed from this property law background, the concept of personal curtilage provides the foundation for a new theory of security from invasive surveillance in public.

   3. The Theory of Personal Curtilage

   The theory of personal curtilage in public involves four principles. First, persons can build a constitutionally protected space secure from governmental surveillance. Second, a person must mark that space in some symbolic manner to claim it as secure from governmental surveillance. Third, these spaces must be related to areas of personal autonomy or intimate connection, whether personal, familial, or associational. Fourth, these contested spaces--like traditional curtilage--will be evaluated by objectively balancing these factors to determine if a Fourth Amendment search has occurred. Building on the framework of traditional curtilage, a physical or sense-enhancing intrusion into this protected personal curtilage would be a search for Fourth Amendment purposes. (247)

   This Part sets out the legal and historical justifications for this theory, focusing on how personal curtilage expands Fourth Amendment protection to persons in public who can establish: (1) a defensible space; (2) a claimed space; and (3) an intimacy-protecting space; which (4) can be balanced within existing Fourth Amendment principles. Part IV will then apply this theory to the modern problem of enhanced technological surveillance.

1. Security from Government Surveillance: A Defensible Space

   A theory of personal curtilage grounds itself in the primacy of "security" (248) and not "privacy" as the operative protection of the Fourth Amendment. (249) Because the theory aims to define a space constitutionally defensible from privacy-destroying technologies, it must first explain why this space should be protected by the Fourth Amendment at all. The argument proceeds in four steps, looking briefly at the text, history, law, and values behind a security-focused Fourth Amendment. Each step supports the overarching theory that the Fourth Amendment includes a limited right of security to defend against government intrusion, even in public. (250)

   As a matter of Fourth Amendment language, the text speaks to a right to be "secure" against unreasonable searches and seizures. (251) Unlike a reasonable expectation of privacy, a reasonable claim to security from governmental surveillance defines itself not by what it protects, but from what it excludes. To be secure from an unreasonable search or seizure means that a barrier exists between the people and the government, a space that cannot be invaded without constitutionally adequate justification. (252)

   As a matter of history, one can trace the emphasis on security through the speeches and documents of the founding generation. Founding leaders such as James Otis, (253) John Adams, (254) and James Madison (255) emphasized the constitutional principle of security from government intrusion. The paramount concern of arbitrary governmental investigation necessitated a focus on regulating government intrusions into public and private space. (256) Although history has established the primacy of the security of the home, this is not an exclusive protection. (257) The Founders also valued travel, communication, associational freedoms, and personal liberty even outside the confines of the farm or homestead. (258) As Justice Scalia acknowledged in Jones, the Fourth Amendment would have been violated if a constable had secreted himself in an eighteenth-century coach and learned where the coach had traveled in public. (259)

   As discussed earlier, the evolution of Fourth Amendment law has followed an uneven path throughout the last century. (260) Yet, the Supreme Court has come back to the theme of "security" over and over. This theme has informed the Court in analyzing protections of papers, (261) homes, (262) persons, (263) and setting out the overarching principle that the Fourth Amendment protects some spaces, (264) be they constitutionally protected areas, (265) property-based areas, (266) or expectations of privacy. This protection explicitly has been seen in the Court's protection of property. (267) But the logic also covers persons outside of their homes or property. As part of the Fourth Amendment, individuals retain the right to take steps to exclude others from portions of their lives. (268) This defensible space--as both metaphor and physical reality--like the traditional curtilage wall, excludes others from entry, observation, or interference and thus deserves some constitutional protection.

2. Markers of Protected Space: A Claimed Space

   A theory of personal curtilage must next articulate how to mark those areas from which an individual may exclude the government. Like traditional curtilage, an examination of personal curtilage looks at what the person has done to claim the space. (269) Like traditional curtilage, personal curtilage looks to see what physical or symbolic walls have been created to establish a protected space free from government surveillance. This is a function both of law and custom, but unlike the expectation of privacy analysis, the focus is on the individual's affirmative actions taken to demonstrate a desire to exclude. (270)

   Personal curtilage requires a claimed space. In everyday life, we take steps to protect our personal information from being revealed. (271) We wear clothes in public, carry our papers and belongings in opaque bags and briefcases, encrypt our emails, seal letters, whisper when telling a secret, and lock our homes when we are not in them. These actions have a utility in that they minimize the amount of information provided in public; but in an era of sophisticated...