The Curtilage Cage: Should the Confines of Curtilage Be Expanded to Include A Private Driveway?

The Curtilage Cage: Should the Confines of Curtilage Be Expanded to Include A Private Driveway?

Tiffany Meekins*

The Fourth Amendment requires that “no Warrants shall issue, but upon probable cause,
. . . and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.  The Warrant Requirement of the Fourth Amendment can be satisfied in either of two ways.  See William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 Va. L. Rev. 881, 882 (1991).  The officer can obtain a warrant from a neutral and detached magistrate with a showing of probable cause or by one of the many warrant exceptions.  Id.  Warrantless searches—or those in which an exception does not apply—are viewed as an intrusion on an individual’s reasonable expectation of privacy.  See Katz v. United States, 389 U.S. 347, 360–61 (1967) (Harlan, J., concurring).  Evidence obtained without the requisite probable cause and warrant or warrant exception should be deemed as “fruit of the poisonous tree” and held inadmissible. Daniel T. Pesciotta, Note, I’m Not Dead Yet: Katz, Jones, and the Fourth Amendment in the 21st Century, 63 Case W. Res. L. Rev. 187, 225 (2012).  In Collins v. Commonwealth, a case currently before the Supreme Court, the Justices will decide the admissibility of a stolen motorcycle which was parked in the Petitioner’s private driveway and used as evidence to convict him.  See 790 S.E.2d 611 (Va. 2016).

  1. Curtilage

Curtilage is “the land immediately surrounding and associated with the home.”  Oliver v. United States, 466 U.S. 170, 180 (1984).  The Supreme Court extends the expectation of privacy and Fourth Amendment protections from unreasonable searches and seizures to the curtilage of property.  Id.  Curtilage has been used to strike a balance with the strictly enforced open fields doctrine.  See T. Michael Godley, Note, Criminal Procedure­­—Oliver and the Open Fields Doctrine, 7 Campbell L. Rev. 253, 253 (1984).  The Court has refused to extend Fourth Amendment protection to areas considered as open fields, no matter what steps are taken by an owner to create privacy.  See Hester v. United States, 265 U.S. 57, 59 (1924).  Despite this, courts across the country have characterized various areas as curtilage.  See, e.g., Florida v. Jardines, 569 U.S. 1, 3–4, 11–12 (2013) (holding that using a drug-sniffing dog on the porch of a front home to detect marijuana was a trespass and invasion of the curtilage); United States v. Van Dyke, 643 F.2d 992, 993–94 (4th Cir. 1981) (holding that a honeysuckle patch found within an exclusionary fence and located 150 feet from the home was within curtilage); State v. Waldschmidt, 740 P.2d 617, 619–20 (Kan. Ct. App. 1987) (holding that a fenced yard that is immediately adjacent to a home and surrounded by a six-foot fence is curtilage).

  1. Dunn Factors of Curtilage

In United States v. Dunn, the Court held that a barn, found behind the defendant’s ranch house that contained a drug lab, was not considered curtilage.  480 U.S. 294, 296, 298 (1987).  In determining that the warrantless search of Dunn’s barn did not violate the Fourth Amendment, the Court established four factors to resolve whether an area should be considered curtilage and thus offered Fourth Amendment protection.  Id. at 301.  The factors the Court cited include:

[T]he 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.

Id.  Since the creation of these factors, their imprecision and failure to predict future outcomes of curtilage cases has been subjected to criticism.  See Thomas E. Curran III, Comment, The Curtilage of Oliver v. United States and United States v. Dunn: How Far Is Too Far?, 18 Golden Gate U. L. Rev. 397, 418 (1988).  This is particularly evident when it comes to establishing whether a private driveway should be considered curtilage.  Private driveways, which have been deemed access routes to the home, have yet to be extended the reasonable expectation of privacy by some state courts.  See, e.g., People v. Lieng, 190 Cal. App. 4th 1213 (2010); State v. Clark, 859 P.2d 344, 349–52 (Idaho Ct. App. 1993); Collins v. Commonwealth, 790 S.E.2d 611, 619 (Va. 2016).

  1. Collins v. Commonwealth

In Collins v. Commonwealth, evidence of a stolen motorcycle was deemed admissible and used to convict Ryan Collins of receiving stolen property in violation of Virginia Code § 18.2-108.  790 S.E.2d at 612.  Officer David Rhodes responded to Collins’s single family home after an informant confirmed the address through a photo on a social media website.  Id. at 613–14.  Collins, who had evaded the police on two separate occasions in the three months’ prior, was believed to be in possession of a stolen, yet identifiable, orange and black chrome motorcycle.  Id. at 612–13.

The stolen motorcycle was parked in Collins’s private driveway pulled up “a car length or two” and covered in a white tarp.  Id. at 614.  While a quarter of the wheel of the motorcycle was exposed, Officer Rhodes uncovered the motorcycle and recorded the Vehicle Identification Number (VIN).  Id.  Rhodes then ran that VIN and confirmed that the motorcycle had been stolen from New York several years ago.  Id.  Collins challenged the admissibility of the illegally obtained evidence as a trespass on the curtilage of his property.  Id. at 614–15; see also Lyle Denniston, Cars, Other Vehicles and the Constitution, Nat’l Const. Ctr. (Sept. 29, 2017),  The Commonwealth, however, argued that a private driveway did not satisfy the factors establishing curtilage and the automobile exception applied in that instance.  Denniston, supra (explaining that the automobile exception was created in Carroll v. United States, 267 U.S. 132 (1925), and it allows the warrantless search of a vehicle when an officer reasonably believes that it may contain evidence of a crime).

  1. Defendant Collins’s Private Driveway Should Be Deemed as Curtilage

An examination of a private driveway under the Dunn factors should yield an inclusion as curtilage.  Collins’s motorcycle was in his driveway.  Collins, 790 S.E.2d at 613–14.  The private driveway extended beyond the home and was the only form of passage from the street to Collins’s residence.  Id. at 623 n.4 (Mims, J., dissenting).  The motorcycle was parked in a portion of the driveway that extended beyond the front porch.  Id.  The front door was merely feet from the side of the home where the motorcycle was located.  Id.

Collins had a reasonable expectation of privacy in his driveway.  A private driveway as close as Collins’s was to his home, should have satisfied the proximity to the home factor from Dunn.  See 480 U.S. at 301.  While there is no mention of an enclosure of Collins’s driveway, the nature of the driveway is useful in establishing curtilage.  The private driveway was used to travel to a private residence from a public street.  Collins, 790 S.E.2d at 623 n.4 (Mims, J., dissenting).  Collins pulled the motorcycle into his driveway next to the home beyond the sidewalk, parked it, and covered it with a white tarp as to hide it from public view.  Id. at 614 (majority opinion).  He did not leave it on the public street.  See id.  He did not leave it uncovered at the bottom of the driveway for passersby to see it.  See id.  This is contrary to the circumstances in United States v. Bausby, where the defendant drew attention to his stolen motorcycle and enticed the public onto his property through a chain-link fence, with a “For Sale” sign posted on it.  See 720 F.3d 652, 656 (8th Cir. 2013).  While all of the Dunn factors are not satisfied in the Collins case, considerable weight should be placed on the determination that the private driveway is in fact curtilage.

  1. Conclusion

Under the Dunn analysis, Collins’s motorcycle should have been found as an inadmissible fruit of Officer Rhodes’s illegal search.  A reasonable person would believe that anything left in the driveway directly next to their home would be free of government intrusion, but case law continues to leave private driveways outside of the curtilage protected cage, looking in.



* Tiffany Meekins is a third-year evening student at the University of Baltimore School of Law, where she is a staff editor for Law Review.  Tiffany is a member of the Royal Graham Shannonhouse III Honor Society and has served for several years as an executive board member for University of Baltimore Students for Public Interest.



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