UNIVERSITY OF THE DISTRICT OF - UDC Law Review

230 For example, in Ciraolo, the Court noted that the small, fenced-in backyard at issue “would appear to encompass this small area
within the curtilage.” California v. Ciraolo, 476 U.S. 207, 213 (1986).
231 Cf. United States v. Titemore, 437 F.3d 251, 258-59 (2d Cir. 2006) (finding that a homeowner had no reasonable expectation of
privacy in a patch of front lawn visible from the road). The court observed that “it is possible that an area might fall within the
curtilage of the home, as that concept was defined at common law, but the owner or resident may fail to manifest a subjective
expectation of privacy in that area.” Id. at 258.
232 See United States v. Dunn, 480 U.S. 294, 304 (1987) (explaining that in California v. Ciraolo, “we held that warrantless naked-eye
aerial observation of a home’s curtilage did not violate the Fourth Amendment. We based our holding on the premise that the
Fourth Amendment has never been extended to require law enforcement officers to shield their eyes when passing by a home or
public thoroughfares.” (internal quotation marks omitted)).
233 Bond v. United States, 529 U.S. 334, 337 (2000) (distinguishing California v. Ciraolo and Florida v. Riley from a probing
palpation of a suspect’s luggage because the aerial surveillance cases “involved only visual, as opposed to tactile, observation.
Physically invasive inspection is simply more intrusive than purely visual inspection.”).
234 Consent-based police/resident encounters arise when a police officer approaches a private home, knocks on the door, and attempts
to engage the resident in a consensual discussion or a consent-based search of the premises. See, e.g., United States v. Ray, 199 F.
Supp. 2d 1104, 1110-12 (D. Kan. 2002) (observing that a “knock and talk” encounter is normally consensual unless coercive
circumstances, such as unreasonable persistence, a display of weapons, multiple police officers questioning the occupant, or
questioning conducted in unusual places or at unusual times, transform the encounter into a “seizure” under the Fourth
Amendment).
235 See, e.g., Duhig v. State, 171 S.W.3d 631, 636 (Tex. App. 2005) (allowing officers to proceed to an unfenced backyard after
receiving no answer to a knock at the front door but hearing movement inside the home; officers smelled marijuana coming from
an air conditioning vent); see also United States v. Charles, 29 F. App’x 892 (3d Cir. 2002) (discussing an officer who smelled
“growing” marijuana); Traylor v. State, 817 N.E.2d 611, 614 (Ind. Ct. App. 2004) (finding that during “knock and talk” at a mobile
home, officers smelled the strong odor of ether, a chemical commonly used in the manufacture of methamphetamine).
236 See, e.g., United States v. Beale, 674 F.2d 1327, 1333 (9th Cir. 1982) (observing that “[a] trained canine’s sense of smell is more
than eight times as sensitive as a human’s”), vacated, 463 U.S. 1202 (1983) (remanding for further consideration in light of United
States v. Place).
237 Cf. State v. Guillen, 213 P.3d 230, 240 n.11 (Ariz. Ct. App. 2009) (questioning whether an implied invitation of public access to
curtilage would include implicit consent for a visitor to use intrusive equipment to probe the residence).
238 See, e.g., Stabler v. State, 990 So. 2d 1258, 1259 (Fla. Dist. Ct. App. 2008) (allowing a canine sniff at the front door of the
defendant’s apartment because the front door was “open to public access and to a common area”); Nelson v. State, 867 So. 2d 534,
535 (Fla. Dist. Ct. App. 2004) (“Areas outside of a hotel room, such as hallways, which are open to use by others may not be
reasonably considered as private.”); supra note 99. The front door has not always been required as the permissible sniff location,
however. See United States v. Tarazon-Silva, 960 F. Supp. 1152, 1163 (W.D. Tex. 1997) (permitting the canine sniff of a dryer
vent because the vent was accessible by standing on a paved driveway and the area both was not enclosed and “appears to be
readily accessible to neighbors, visitors, repairmen, salesmen, utility workers, and/or members of the public”), aff’d, 166 F.3d 341
(5th Cir. 1998).
239 Brief for the United States at 15 n.4, Kyllo v. United States, 533 U.S. 27 (2001) (No. 99-8508) (observing that the Courts of
Appeals had “uniformly held” that the use of a thermal imager from a public location to observe the exterior of a dwelling was not
a “search” within the meaning of the Fourth Amendment, and listing applicable cases).
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