UNIVERSITY OF THE DISTRICT OF - UDC Law Review

eside where the doors are cracked130 or imperfectly hung,131 surely at some point the limit is reached. And certainly that
limit is reached when the conduct in question is keyhole-peeping,132 transom-peeping,133 or looking though minute openings
in covered windows.134 To assert that the tenant in a hotel or apartment building has an expectation of privacy in his place of
residence is to say very little if that tenant is put to the choice of papering over his transom and stuffing his keyhole or else
having a policeman look in.
(d) Entry of related structures. Under the traditional pre-Katz interpretation of the Fourth Amendment, the “right of the
people to be secure in their … houses” extended not merely to a person’s dwelling, but also to other structures located within
the curtilage.
Generally speaking, curtilage has been held to include all buildings in close proximity to a dwelling, which are
continually used for carrying on domestic employment; or such place as is necessary and convenient to a dwelling,
and is habitually used for family purposes.135
Applying the curtilage test to the facts of particular cases, courts held that it was a search within the meaning of the Fourth
Amendment for police to enter a garage,136 a barn,137 a smokehouse,138 a bathhouse,139 or a hen house.140 But this by no
means meant that these and like structures were inevitably within the protection of the Amendment. Other decisions,
sometimes involving different facts and sometimes reflecting a different judicial attitude concerning the scope of the curtilage
(especially as to just how close a “close proximity” is), found the following structures to be outside the curtilage and thus
subject to unrestrained entry at the whim of the police: garages,141 barns,142 hen houses,143 stables,144 lean-tos,145 and
outbuildings.146
As perhaps is apparent from these lists, it is bizarre that the curious concept of curtilage, originally taken to refer to the land
and buildings within the baron’s stone walls, should ever have been deemed to be of controlling significance as to the
constitutional limits upon the powers of the police. The Fourth Amendment also protects a person’s “papers, and effects,”
and it was never satisfactorily explained why these papers and effects were with or without protection from unreasonable
search and seizure depending upon whether they were kept in a building close to or distant from the dwelling. As one federal
judge observed some years ago,
the “curtilage” test … would imply … that buildings outside the curtilage are not within the protection of the Fourth
Amendment, and, while I am aware of cases so holding, I can see no reason why a farmer should be afforded less
protection in the barn where he actually does business, whether located within the curtilage or not, than is accorded a
city dweller in his office.147
The same could be said of structures which do not have a business use. It is difficult to understand, for example, why police
should be required to conform to the restraints of the Fourth Amendment when they enter an urban dweller’s garage attached
to or immediately adjacent to his dwelling, but should be permitted to enter at will a garage some distance from or having no
connection with the dwelling. The absurdity of that distinction led at least one court to conclude that “a garage … is protected
against unreasonable searches without regard to whether or not it is within the curtilage of a private dwelling.”148
One of the virtues of Katz v. United States149 is that it makes it apparent that the curtilage concept should not be employed to
limit arbitrarily the reach of the Fourth Amendment’s protections. Under Katz, it is a search to violate “the privacy upon
which [one] justifiably relied,” and unquestionably a person can have such an expectation of privacy as to garages and barns
and the like even when they are not in “close proximity” to his dwelling.
Some of the post-Katz cases still rely upon the curtilage concept in the process of holding that it is a search to enter a
structure which is located within the curtilage.150 This is not particularly objectionable, for there is no reason to view Katz as
having somehow reduced the protection of in-curtilage structures; surely a justified expectation of privacy exists as to them.
But it will no longer do to declare routinely that any entry of a structure beyond the curtilage is not a Fourth Amendment
search. Rather, Katz dictates the approach taken in People v. Weisenberger,151 where, in the course of holding that the
discovery of three 2-pound bags of marijuana in a chicken house was a search, the court reasoned:
In our view the court’s reliance on the curtilage doctrine was misplaced. Even though the area of the search
might have been outside the curtilage, nevertheless, if it was a place where the owner had a reasonable
expectation of privacy, then it was a constitutionally protected area where warrantless intrusions are forbidden
under the federal and state constitutions. …
The record reflects that the chicken house was in proximity to the Weisenberger home and was being put to an
190