Fourth Amendment yard work: curtilage's mow-line rule.

• Author: Peters, Brendan

INTRODUCTION I. A GRAPHIC EVOLUTION OF THE FOURTH AMENDMENT HOUSE A. Defining the Fourth Amendment House B. Curtilage as a Boundary Within Which Structures Are Granted Protection C. Modern Curtilage: Curtilage Itself Gets Fourth Amendment Protection D. Curtilage Gets a z-Axis: Aerial Surveillance Cases E. Katz or Curtilage? II. CUTTING OLIVER'S "CLEARLY MARKED" BOUNDARY WITH A LAWNMOWER A. Curtilage in a Nation Without Walls B. Weed in the Grass C. Mow-lines 1. Keep off the grass 2. On grass III. Is LAWN PRIVACY REASONABLE? A. Brief History of Lawn Privacy B. Curtilage's Antiurban Bias C. 'Burb Curtilage CONCLUSION No, that's not in the curtilage, counsel.... That's too far ... [Ms. Chaussee] has drawn on her demonstrative exhibit No. 15 the area that is covered by not only the house and the shop, but I think by her lawn mower or weed whacker or whatever she uses in order to kind of keep things beat down, and at most, that would be the curtilage. (1)

INTRODUCTION

In 1999, the Museum of modern Art (MoMA) in New York hosted an exhibition entitled The Un-Private House. (2) MoMA claimed the exhibit laid the groundwork for the first architectural debate of the twenty-first century--how to define privacy in the house. Terence Riley, an architectural theorist and Chief Curator of MoMA's Department of Architecture and Design, declared, "Privacy is no longer drawn at the property line" (3) and argued that privacy in the American house was eroding. The evidence supporting this thesis came from twenty-six houses designed by prominent architects and gathered for the exhibit. Riley scrutinized these houses for architectural clues and concluded that the distinct line between the public and private zones of the past had become "blurred" and "fluid" in today's houses. (4)

During the past twenty years, courts across America have been actively engaged in a similar endeavor--looking for architectural clues and reading markers in the landscape to determine where the privacy of a house begins and ends. The stakes here, however, are higher than they are for architectural theorists. The line between public and private under the Fourth Amendment can determine whether an accused goes to prison or not. (5)

One can imagine that the house, as mentioned in the Constitution, might have a clear boundary--ending at the threshold (6) between inside and outside. In the Supreme Court's decision in Oliver v. United States, (7) however, the Court said that, for purposes of the Fourth Amendment, the house spills out-of-doors to a space called "the curtilage." (8) Under Oliver's modern definition of curtilage, (9) "house" now includes curtilage, (10) and because curtilage is a larger area than the physical structure of a house, one has to know how far the curtilage extends from the house to determine the scope of Fourth Amendment privacy. The majority in Oliver thought this inquiry would be easy. The Court stated, "for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage--as the area around the home to which the activity of home life extends--is a familiar one easily understood from our daily experience." (11)

But the curtilage's boundary was not as clearly marked as the Court thought. Four years after Oliver, the Court announced a curtilage standard in United States v. Dunn. (12) Under Dunn, the "extent-of-curtilage" (13) is analyzed through four factors:

[1] [T]he proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by. (14) Since the common law, determining the curtilage has always involved looking to a house's landscape architecture. In England, where the idea of curtilage originated, the inquiry was simple: The curtilage included the buildings enclosed by the wall surrounding the house. America's residential landscape architecture, however, is different. Americans usually do not have walls or fences around their houses. (15) Therefore, under the Dunn standard, courts go looking for other architectural clues to determine the scope of the curtilage.

In looking for clear dividing lines like fences, walls, or other marks in the landscape to find the curtilage boundary, some courts are turning to a bright-line or mow-line rule--if officers set foot on mowed grass, then they have invaded the curtilage. (16) If "curtilage is the area to which extends the intimate activities associated with the sanctity of a man's home and the privacies of life and therefore has been considered part of the home itself for Fourth Amendment purposes," (17) is it reasonable that this area extends to the limit of where a homeowner takes the John Deere? This Note is an attempt to investigate the developing definition of curtilage and the questions it raises.

The Note is divided into three Parts. Part I traces the evolution of the Fourth Amendment house and curtilage graphically. Today, there is an overwhelming sense that zones of privacy are shrinking. (18) This Part examines how the Fourth Amendment zone of privacy may actually have expanded with the inclusion of modern curtilage into the definition of "house."

The curtilage doctrine was imported with the common law from England. Part II examines the difficulty in translating the doctrine into the American context and considers the heightened importance the war on drugs has placed on the curtilage boundary. In warrantless searches, police risk the exclusion of any evidence resulting from the search (19) and therefore they have an interest in staying off the curtilage. As this Part illustrates, the police often avoid entering mowed areas, and it often appears that courts rely, in part at least, on a mowline role to determine the extent of the curtilage.

Part III questions whether society is prepared to recognize lawn privacy as reasonable. In recent "aerial surveillance cases" and in Kyllo v. United States, (20) the Court suggested the appropriate inquiry for examining curtilage privacy is the Katz v. United States (21) two-part reasonableness framework. (22) In exploring the issue, this Part looks at lawn privacy historically, the antiurban character of curtilage, and briefly considers suburban curtilage.

1. A GRAPHIC EVOLUTION OF THE FOURTH AMENDMENT HOUSE

   This Part graphically illustrates the evolution of the meaning of "houses" in the Fourth Amendment. In reviewing this history, this Part also questions two assumptions taken for granted today. The first assumption is that our zone of privacy is shrinking. (23) As the following analysis illuminates, with the addition of a modern understanding of curtilage, our constitutional zone of privacy around the house has actually expanded since the framing. The second assumption is that the common law meaning of "house" as applied to the Fourth Amendment included the curtilage. (24)

   1. Defining the Fourth Amendment House

      It may seem unnecessary today to analyze whether a structure is defined as a "house" or not (25) after the announcement in Katz v. United States (26) that the Fourth Amendment "protects people, not places." (27) But the inquiry into whether a structure is a house is important for two reasons. First, even after Katz, houses are viewed as having heightened Fourth Amendment protection. (28) Second, and more importantly for this Note, houses are the only structures that clearly have curtilage. (29) Therefore the discussion here begins with the question: What is a Fourth Amendment "house"?

      [FIGURE 1 OMITTED]

      This may seem like a simple question. After all, children draw pictures of them--the gabled roof, four windows, and smoke billowing out of the chimney. But certainly more than just architecture distinguishes houses from other kinds of places. The influential architect Le Corbusier defined a house as a place affording protection from outside observation. (30) The Constitution also defines a house as a place free from observation--it is the only place expressly granted Fourth Amendment protection from unreasonable searches. (31) Houses are especially private (32) places, and the Constitution underscores this point, (33) but the Constitution does not provide any clues as to what kind of places are Fourth Amendment "houses." In California v. Carney, (34) the United States Supreme Court confronted this house definition issue. (35)

      The police searched Carney's Dodge motor home without a warrant, and Carney argued that the marijuana and paraphernalia found in the motor home should have been suppressed at trial under the Fourth Amendment. The California Supreme Court agreed, and it reversed the trial court's finding that the search was permitted under the "automobile exception" (36) and held that the motor home is "more properly treated as a residence." (37) In reaching its conclusion, the California court looked to the fact that Carney's motor home was "equipped with at least a bed, a refrigerator, a table, chairs, curtains and storage cabinets ... [that] created a setting that could accommodate most private activities normally conducted in a fixed home." (38) The fact that a motor home is a "repository of intimate effects," (39) that the interior is "often fully shielded from view by its design," (40) and its "outward appearance" (41) also led the court to determine the motor home was house-like and therefore protected.

      The United States Supreme Court reversed the California Supreme Court and held that the motor home fell within the automobile exception because it was readily mobile and was in a place that indicated it was being used as a vehicle. (42) The important part of the Carney decision here is that the Court acknowledged that the "vehicle possessed some, if not many of the attributes of a home." (43) Unfortunately, the majority failed to elaborate on this statement...