Curtilage? (Open Thread)

© Miri WTPOTUS March 27, 2013

So this morning I read about a recent decision by the Supreme Court of the United States: [emphasis added]

The Supreme Court ruled … that police cannot bring drug-sniffing police dogs onto a suspect’s property to look for evidence without first getting a warrant for a search, a decision which may limit how investigators use dogs’ sensitive noses to search out drugs, explosives and other items hidden from human sight, sound and smell.

The high court split 5-4 on the decision to uphold the Florida Supreme Court’s ruling throwing out evidence seized in the search of Joelis Jardines’ Miami-area house. That search was based on an alert by Franky the drug dog from outside the closed front door. 

Justice Antonin Scalia said … 

“The police cannot, without a warrant based on probable cause, hang around on the lawn or in the side garden, trawling for evidence and perhaps peering into the windows of the home,” Justice Antonin Scalia said for the majority. “And the officers here had all four of their feet and all four of their companion’s, planted firmly on that curtilage — the front porch is the classic example of an area intimately associated with the life of the home.”

He was joined in his opinion by Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

What’s this curtilage, we wondered, Precious?

The area, usually enclosed, encompassing the grounds and buildings immediately surrounding a home that is used in the daily activities of domestic life.

A garage, barn, smokehouse, chicken house, and garden are curtilage if their locations are reasonably near to the home. The determination of what constitutes curtilage is important for purposes of the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures of a person and of his or her home or property. Courts have construed the word home to include curtilage so that a person is protected against unlawful searches and seizures of his or her curtilage.

Having in mind our recent concern over aerial drones, especially miniature ones, we then wondered, Precious, whether the authorities can use the air space around our homes, over our property, to spy on our curtilage.  California v. Ciraolo appears to state that they cannot: [emphasis added]

… Santa Clara Police received an anonymous telephone tip that marijuana was growing in respondent’s backyard. Police were unable to observe the contents of respondent’s yard from ground level because of a 6-foot outer fence and a 10-foot inner fence completely enclosing the yard. Later that day, Officer Shutz, who was assigned to investigate, secured a private plane and flew over respondent’s house at an altitude of 1,000 feet, within navigable airspace … From the overflight, the officers readily identified marijuana plants … they photographed the area with a standard 35mm camera. 

… Officer Shutz obtained a search warrant on the basis of an affidavit describing the anonymous tip and their observations; a photograph depicting respondent’s house, the backyard, and neighboring homes was attached to the affidavit as an exhibit. The warrant was … executed the next day, and 73 plants were seized; it is not disputed that these were marijuana.

After the trial court denied respondent’s motion to suppress the evidence of the search, respondent pleaded guilty to a charge of cultivation of marijuana. The California Court of Appeal reversed, however, on the ground that the warrantless aerial observation of respondent’s yard which led to the issuance of the warrant violated the Fourth Amendment. 161 Cal.App.3d 1081, 208 Cal.Rptr. 93 (1984). That court held first that respondent’s backyard marijuana garden was within the “curtilage” of his home, under Oliver v. United States, 466 U.S. 170 (1984). The court emphasized that the height and existence of the two fences constituted “objective criteria from which we may conclude he manifested a reasonable expectation of privacy by any standard.” 161 Cal.App.3d at 1089, 208 Cal.Rptr. at 97.

…  the court then found it “significant” that the flyover was not the result of a routine patrol conducted for any other legitimate law enforcement or public safety objective, but was undertaken for the specific purpose of observing this particular enclosure within [respondent’s] curtilage.

Now, I’m no lawyer and there are likely many other cases pertinent to the issue of air space and use thereof to observe us as we go about our business in our own curtilage.  However, it’s comforting to know that there ARE precedents, which can be used to protect our right to be free from spying aerial drones.

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