Personal Curtilage: Fourth Amendment Security in Public

By Ferguson, Andrew Guthrie | William and Mary Law Review, April 2014 | Go to article overview

Personal Curtilage: Fourth Amendment Security in Public


Ferguson, Andrew Guthrie, William and Mary Law Review


C. 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.

D. 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. …

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