Personal curtilage: Fourth Amendment security in public.

• Author: Ferguson, Andrew Guthrie
• Position: Abstract through II. The Curtilage Principle B. Modern Fourth Amendment Understanding, p. 1283-1324

Abstract

Do citizens have any Fourth Amendment protection from sense-enhancing surveillance technologies in public? This Article engages a timely question as new surveillance technologies have redefined expectations of privacy in public spaces. It proposes a new theory of Fourth Amendment security based on the ancient theory of curtilage protection for private property. Curtilage has long been understood as a legal fiction that expands the protection of the home beyond the formal structures of the house. Based on custom and law protecting against both nosy neighbors and the government, curtilage was defined by the actions the property owner took to signal a protected space. In simple terms, by building a wall around one's house, the property owner marked out an area of private control. So, too, the theory of personal curtilage turns on persons being able to control the protected areas of their lives in public by similarly signifying that an area is meant to be secure from others.

This Article develops a theory of personal curtilage built on four overlapping foundational principles. First, persons can build a constitutionally protected space secure from governmental surveillance in public. Second, to claim this space as secure from governmental surveillance, the person must affirmatively mark that space in some symbolic manner. Third, these spaces must be related to areas of personal autonomy or intimate connection, be it 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. Adapting the framework of traditional trespass, an intrusion by sense-enhancing technologies into this protected personal curtilage would be a search for Fourth Amendment purposes. The Article concludes that the theory of personal curtilage improves and clarifies the existing Fourth Amendment doctrine and offers a new framework for future cases. It also highlights the need for a new vision of trespass to address omnipresent sense-enhancing surveillance technologies.

TABLE OF CONTENTS Introduction I. A Doctrinal Muddle: Fourth Amendment Protections in Public A. Past Tensions: The Fourth Amendment in Flux 1. Protected Interests /Trespass Theory 2. Reasonable Expectation of Privacy Theory 3. Post-Reasonable Expectation of Privacy: Doctrinal Gaps B. Present Tensions: The Fourth Amendment After United States v. Jones II. The Curtilage Principle A. Common Law Understanding B. Modern Fourth Amendment Understanding 1. Traditional Trespass 2. Trespass Reconsidered C. Open Questions About Trespass D. Current Reality of Curtilage in the Courts III. The Theory of Personal Curtilage A. Security from Government Surveillance: A Defensible Space B. Markers of Protected Space: A Claimed Space C. Relationship to Personal Detail: An Intimacy-Protecting Space D. Balancing Fourth Amendment Interests Within a Fourth Amendment Framework E. Sense-Enhancing Trespass IV. The Theory of Personal Curtilage Applied A. Communication Interests B. Visual Surveillance Interests C. Geolocational Interests D. Personal Property Interests E. Odor/Vapor/Molecular Interests F. Concluding Thoughts V. Concerns and Questions "The Fourth Amendment provides that 'the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....' This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs." (1)

Introduction

A neighborhood is targeted for enhanced police surveillance: drones fly overhead, (2) video cameras record each intersection, (3) license plate readers scan each automobile, (4) facial recognition devices monitor particular buildings, (5) and aural surveillance records conversations on the street. (6) If an individual enters that public space, does the Fourth Amendment offer any protection from such government surveillance? Prior to the Supreme Court's 2012 decision in United States v. Jones, (7) the answer would have been "no," the Fourth Amendment does not protect what one has knowingly exposed to the public. (8) After Jones, the answer is less certain, as a majority of Justices appear to be troubled by the aggregation of collected public information, even information knowingly exposed to the public. (9)

The question remains: does a space, constitutionally protected from technologically enhanced surveillance, exist in public? And, if so, how should it be defined consistent with the text, history, and theory of the Fourth Amendment? (10) This Article engages a timely question as new surveillance technologies have redefined expectations of privacy in public spaces. (11) It examines an open question as the Supreme Court has been unable to agree on a framework for protecting people in public. (12)

In response to these questions, this Article proposes a new theory of Fourth Amendment security based on the ancient theory of curtilage for private property. (13) Curtilage has long been understood as a legal fiction that expands the protection of the home beyond the formal structures of the house. (14) Curtilage recognizes a buffer zone beyond the four walls of the home that deserves protection even in areas observable to the public. (15) Based on custom and law protecting against both nosy neighbors and the government, courts defined curtilage by the actions the property owner took to signal a protected space. (16) In simple terms, by building a wall around one's house, the property owner marked out an area of private control. (17) Similarly, the theory of personal curtilage turns on persons being able to control the constitutionally protected areas of their lives in public by signifying that they intend for an area to be secure from physical and sense-enhancing invasion.

Why focus on curtilage? First, Justice Scalia's majority opinion in Jones gave new life to the idea that trespass is still an influential Fourth Amendment theory. (18) The majority held that if police trespass on personal property--an "effect" within the framework of the Fourth Amendment--a search occurs. (19) This is so even if third parties can observe the "effect"--the car--in public and even if it produces only public information. (20) Second, Justice Scalia reiterated the centrality of curtilage in Florida u. Jardines, holding that a dog sniff on the curtilage of a home was a search for Fourth Amendment purposes. (21) As curtilage has always been a doctrine tied to trespass-based property theories, studying it in light of new technologies provides new insights. (22) At the same time, the concurring Justices in Jones expressed dissatisfaction with a limited property-based conception of trespass, seeking to expand Fourth Amendment protections to people in public. (23) Although not agreeing on a framework, at least five Justices in Jones acknowledged that new surveillance technologies required new Fourth Amendment thinking to address privacy concerns in public. (24)

As this Article will develop, curtilage provides a definitional tool rooted in the common law, and yet adaptable to the surveillance age. First, the creation of spaces of curtilage recognized that profoundly private events occurred in public. (25) Much of the deep respect for this space involved its ties to intimate associations of family, friends, private worship, and personal habits even in observable areas. (26) Second, curtilage focused as much on security as privacy, marking out a defensive space against government invasion. (27) Third, curtilage was a doctrine rooted in custom and law. (28) Although one could sue for trespass in courts, the harm was a violation not only of the rules of property, but also the rules of social custom. (29) The metaphorical wall did not merely keep out prying eyes, but symbolically informed those eyes of when and where they needed to stop looking. (30) Fourth, curtilage shifted the burden of creating protected spaces to the individual, and not the government. It was the individual who would build the wall or fence around the property. (31) Finally, it was a limited space of protection. Curtilage expanded the scope of personal security, but only slightly, thus carving out some protected space in public, but not so much as to upset the balance of existing law. (32)

This Article applies the theory of Fourth Amendment curtilage to persons acting in public. (33) It is necessarily an inexact application, but a theory that offers several insights about the modern Fourth Amendment doctrine. First, an analysis of Fourth Amendment curtilage recognizes that the prevailing binary analysis of a greater protection in the home and a lesser protection outside of the home rests on an outdated foundation. (34) New technologies can see, hear, sense, and invade the home and public space with equal ease. Traditional public/private boundaries no longer guarantee privacy protection. Curtilage thus exists as a gray area offering a middle range of privacy. Second, in emphasizing security--"[t]he right ... to be secure" (35)--as the operative language in the Fourth Amendment, a curtilage-based theory offers a better frame of analysis than an "expectation of privacy." (36) As other scholars have noted, the Fourth Amendment by its plain language protects the right to be "secure," not the right to privacy. (37) As new technologies make old expectations of privacy obsolete, a new focus is needed. Finally, this theory shifts the power of who gets to define the protected space. (38) Instead of a court divining what society considers an objectively "reasonable" expectation of privacy, (39) based on little more than the court's own vision of such an expectation, now courts might look to steps the individual took to establish the protected space.

To be clear, the concept of...