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150 feet from house in rural area; curtilage not limited to nearer mowed area; assuming “that sheer distance could in some instances lead us to conclude that a particular area was outside the curtilage even though inside a fence surrounding a residence, this case does not present such a situation”); Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002) (though police obtained consent to enter after knocking on door, that consent invalid because police had already made stealthy entry of the property after 10 p.m. and had first “checked out a shed and walked around the premises”); State v. Parker, 399 So.2d 24 (Fla.App.1981) (was a search to enter fenced back yard), as it “not accessible to the public” and was “more private than the (front”); Norman v. State, 134 Ga.App. 767, 216 S.E.2d 644 (1975) (officer examined car which was in small meadow behind barn on farm, not an access route); People v. Pakula, 89 Ill.App.3d 789, 44 Ill.Dec. 919, 411 N.E.2d 1385 (1980) (it a search for officer to enter through closed gate to fenced back yard); State v. Lewis, 675 N.W.2d 516 (Iowa 2004) (where “backyard was located adjacent to the home” and a “fence with a gate completely enclosed the backyard” and “enclosed rear porch was located in the fenced backyard” and “screens and or windows with a door fully enclosed the rear porch,” entry of yard and porch a search); State v. Silva, 509 A.2d 659 (Me.1986) (entry of backyard area within curtilage a search); People v. Doerbecker, 39 N.Y.2d 448, 384 N.Y.S.2d 400, 348 N.E.2d 875 (1976) (see note 210 supra for facts); State v. Johnson, 301 N.W.2d 625 (N.D.1981) (it a search to look behind entry structure to area not observable from road or nearby driveway to mobile home); Dale v. State, 38 P.3d 910 (Okla.Crim.2002) (agent’s entry of defendant’s property “by climbing over the locked driveway gate, which was part of a secure perimeter fence, and proceeding between the two residential structures in order to confront [him] was an unlawful entry onto the curtilage of the home”); State v. Prier, 725 S.W.2d 667 (Tenn.1987) (entry of garden area within curtilage a search); Gonzalez v. State, 588 S.W.2d 355 (Tex.Crim.App.1979) (it a search where officer deviated from normal route to explore weeded area in back yard); State v. Harris, 671 P.2d 175 (Utah 1983) (a search where officer went to defendant’s garden, at rear of his property behind farm building and well screened). United States v. Struckman, 603 F.3d 731 (9th Cir.2010) (defendant’s “backyard—a small, enclosed yard adjacent to a home in a residential neighborhood—is unquestionably” part of curtilage, and thus police entry without exigent circumstances unreasonable); State v. Fisher, 283 Kan. 272, 154 P.3d 455 (2007) (search here, as “once [police officer’s] knock and talk was complete, instead of driving away from the house to the highway, he simply drove deeper into the property on the driveway-according to the photographs, perhaps as much as 50 yards-directly to the previously observed bag”); State v. Orde, 161 N.H. 260, 13 A.3d 338 (2010) (where police officer walked up onto deck at side of house and saw marijuana plants there, that illegal search, considering that items on deck not visible from the road, the driveway, or the side door reached by path from driveway, and given officer’s “departure from the obvious paths on the property”). 220 Hoffman v. People, 780 P.2d 471 (Colo.1989). 221 The cases upholding such police activity do not necessarily make it clear whether such action is deemed to be no search or a reasonable search. See, e.g., Alvarez v. Montgomery County, 147 F.3d 354 (4th Cir.1998) (where police responding to 911 call re underage drinking party approached front door to notify residents of complaint but, seeing sign reading “Party In Back,” walked around house to back yard where party going on and asked to see host, such entry “did not exceed their legitimate purpose for being there” and thus “satisfied the Fourth Amendment’s reasonableness requirement”); Brenneman v. State, 264 Ark. 460, 573 S.W.2d 47 (1978) (where officer seeking to serve traffic citation on defendant received no answer at door but saw defendant’s car parked nearby, he properly went to rear of premises to see if defendant “was on the premises, but perhaps outside the house”); State v. Hider, 649 A.2d 14 (Me.1994) (officer tracking thief from airport with tracking dog lawfully entered rear of defendant’s curtilage); State v. Curtin, 175 W.Va. 318, 332 S.E.2d 619 (W.Va.1985) (police properly in yard at rear of house to secure premises while others executed search warrant within). United States v. Taylor, 458 F.3d 1201 (11th Cir.2006) (”to the extent that the officers moved away from the front door and toward Taylor” when he walked out from behind the barn, “this small departure from the front door also does not trigger the protections of the Fourth Amendment”); Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007) (officer “did not violate Tryon’s constitutional rights by merely walking into the backyard after he saw Tryon take off running”); Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006) (where officer “knocked at the residence and discovered that no one was home,” his “merely walking from the house to the barn” in search of person he sought lawful); State v. Dunn, 340 Mont. 31, 172 P.3d 110 (2007) (defendant “did not have a reasonable expectation of privacy in his backyard area” vis-a-vis police entry to investigate neighbors’ complaint of loud party there, where “noise was coming from the backyard”); State v. Domicz, 188 N.J. 285, 907 A.2d 395 (2006) (not objectionable that police “passed through the rear gate and entered the curtilage for the purpose of knocking on defendant’s door and speaking with him,” as “position of the parked cars in defendant’s driveway led the officers to believe that the back door was used by residents and visitors”); State v. Beane, 770 N.W.2d 283 (N.D.2009) (“The officers’ ‘small departure’ from the front door of the residence to meet Beane coming from the unattached garage also did not trigger the protections of the Fourth Amendment”). 221.1 Hardesty v. Hamburg Township, 461 F.3d 646 (6th Cir.2006). Accord: Estate of Smith v. Marasco, 318 F.3d 497 (3d Cir.2003); United States v. Hammett, 236 F.3d 1054 (9th Cir.2001); United States v. Anderson, 552 F.2d 1296 (8th Cir. 1977); United States v. Bradshaw, 490 F.2d 1097 (4th Cir.1974). 222 As stated in Commonwealth v. Thomas, 358 Mass. 771, 267 N.E.2d 489 (1971): “In a modern urban multifamily apartment house, 226
the area within the ‘curtilage’ is necessarily much more limited than in the case of a rural dwelling subject to one owner’s control. … In such an apartment house, a tenant’s ‘dwelling’ cannot reasonably be said to extend beyond his own apartment and perhaps any separate areas subject to his exclusive control.” Compare United States v. Williams, 581 F.2d 451 (5th Cir.1978) (concluding, as to farm, that where the outbuildings “are not encompassed by a fence that also includes the house, or perhaps a privacy or exclusionary one around them, the outer limits of the curtilage are defined by the walls of the remote outbuildings,” so that it was no search to smell illegal liquor while positioned near a shed but more distant from the main house than the shed); Sanders v. State, 264 Ark. 433, 572 S.W.2d 397 (1978) (garden some 100–200 yards behind house trailer, though separated by fence from trailer, was within curtilage, as police knew given fact they first tried to justify search of garden as incident to execution of warrant for premises later held invalid). 223 United States v. Acosta, 965 F.2d 1248 (3d Cir.1992) (where “landlord gave the defendants permission to use the backyard” but “the right to grant permission to others remained with the landlord” and “the landlord used the backyard freely, as did his employees,” “the fact that defendants had permission to use the yard did not create any legal expectation of privacy in it”). 224 State v. Johnson, 171 N.J. 192, 793 A.2d 619 (2002) (questioning proposition that the “curtilage concept has limited applicability with respect to multi-occupancy premises because none of the occupants can have a reasonable expectation of privacy in areas that are also used by other occupants”). 225 State v. Hines, 323 So.2d 449 (La.1975). See also People v. Holt, 91 Ill.2d 480, 64 Ill.Dec. 550, 440 N.E.2d 102 (1982) (area under porch of apartment building). The same is true of a motel, State v. Berry, 223 Kan. 102, 573 P.2d 584 (1977), a duplex, State v. Hook, 60 Haw. 197, 587 P.2d 1224 (1978), or when two buildings have a common curtilage, Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003) (“a person does not have an objectively reasonable expectation of privacy in the area around a rental residence, especially where, as here, a second building on the property is rented to another person who shares the curtilage with the accused”). See also Reeves v. Churchich, 484 F.3d 1244 (10th Cir.2007) (front yard of duplex not part of building’s curtilage, where yard not enclosed and residents could not exclude others from the yard, which they shared with other residents). 226 United States v. Soliz, 129 F.3d 499 (9th Cir.1997) (no search for officer to enter parking area used by residents and guests, located between buildings in 2-building apartment complex; court doubts whether “a shared common area in a multi-unit dwelling compound is sufficiently privacy oriented to constitute curtilage”); State v. Coburne, 10 Wash.App. 298, 518 P.2d 747 (1973). The same is true of a motel parking lot. United States v. Diaz, 25 F.3d 392 (6th Cir.1994). 227 See § 2.3(b). 228 Fixel v. Wainwright, 492 F.2d 480 (5th Cir.1974). 229 See also Espinoza v. State, 265 Ga. 171, 454 S.E.2d 765 (1995) (where defendant lived in left side of duplex and his apartment reached by left half of a private driveway shaped like a stethoscope, search which uncovered garbage bag among bushes 7–8’ to left of his driveway and outside the stethoscope, “a place where visitors to the duplex would not be expected to go,” intruded on defendant’s justified expectation of privacy). Compare United States v. Arboleda, 633 F.2d 985 (2d Cir.1980) (where defendant threw package out window of third-floor apartment and it landed on ledge, officer could examine package, as there was no evidence defendant “exercised any exclusive control over the ledge,” and “it is doubtful that the curtilage concept has much applicability to multi-family dwellings”); Bunn v. State, 153 Ga.App. 270, 265 S.E.2d 88 (1980) (where common grassy area had 6-foot privacy fence, but there was an opening between the fence and building which permitted persons to pass through the area and area was used by all tenants and their invitees, it no search to enter that area; but this did not justify officer going onto adjoining concrete patio of particular apartment, as that area qualifies as the curtilage of that apartment). 230 State v. Detlefson, 335 So.2d 371 (Fla.App.1976). See also United States v. Miller, 589 F.2d 1117 (1st Cir.1978) (court concluded defendant had no justified expectation of privacy as to 40 lb. bale of marijuana on his residential land, though the bale was covered by a tarpaulin, where nearby marijuana debris would have been apparent to any passerby). 231 Wattenburg v. United States, 388 F.2d 853 (9th Cir.1968). Also illustrative is State v. Goude, 49 Or.App. 721, 620 P.2d 957 (1980), where police examined a car up on blocks in defendant’s driveway. Noting that this was not a casual inspection, but included looking inside and under the car, the court concluded this was a search because the defendant “could reasonably expect that people would not be crawling around his car, opening the hood and possibly getting inside to inspect the interior.” 232 See note 223 supra. 233 Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). 227
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UNIVERSITY OF THE DISTRICT OF COLUM
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article that appeared in the period
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incarcerated children in the Distri
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Section 3: Writing Exercise Section
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Opinion PERRY, J. 73 So.3d 34 Supre
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activities, or statements that he e
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damaged package and notified federa
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B. “Sniff Test” at a Private Ho
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was standing in front of the door,
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justified on the basis of reasonabl
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The probable cause affidavit listed
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unwavering expectation that there w
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otherwise prompt his dog to alert.
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(quoting State v. Morsman, 394 So.2
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society recognizes as reasonable. A
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obtained through the search is not
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without implicating the Fourth Amen
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[14] The Government contends, howev
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the President and Attorney General
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nuisance. IV Blackstone, Commentari
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The other ‘eroding’ case cited
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11 Jones v. United States, 362 U.S.
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103 S.Ct. 2317 Supreme Court of the
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accompanying remedy. Here, for exam
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northbound on an interstate frequen
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inapplicable to the decision to iss
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L.Ed. 1879 (1949). Justice BRENNAN
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case. As the Court points out, “I
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forcefully suggest that the exclusi
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S.Ct., at 3073-3074. (WHITE, J., di
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law-enforcement officers have recog
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government enforcement agent.” Id
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advance an important underlying sub
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Americans must be that the Court gi
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3 In Spinelli, police officers obse
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The only reference to Hereford’s
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v. United States, supra; Sibron v.
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susceptible to the interpretation t
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8 Rugendorf v. United States, 376 U
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104 S.Ct. 1652 Supreme Court of the
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will not be betrayed.” United Sta
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*126 In sum, the federal agents did
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and that search has not left incrim
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privacy in the presence or absence
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surrounding the use of the techniqu
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1437, 4 L.Ed.2d 1688 (1960); Henry
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26 See, e.g., Michigan v. Long, 463
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Rodriguez, 497 U.S. 177, 181, 110 S
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how relatively warm—Kyllo was hea
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concurring). To be sure, the homeow
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homeowner would even care if anybod
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4 This view comports with that of a
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unless the dog sniff itself infring
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probable cause to stop the car for
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and, implicitly, the application of
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3 Kyllo was concerned with whether
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(500 grams and an unspecified amoun
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authority to allow police inside th
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AFFIRMED. We retain jurisdiction an
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that “[t]he right of the people t
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field” did not constitute a Fourt
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Government’s unrestrained power t
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y the government upon the privacy o
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own difficulties. It involves a deg
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search unless it is achieved by suc
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88 Or. L. Rev. 829 Oregon Law Revie
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hidden in open locations, such as f
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While the Place Court’s failure t
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location may be important in evalua
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III Framing the Canine Home-Sniff D
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seemingly making impermissible what
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possessions. Without minimizing the
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4. Even Surreptitious Canine Sniffs
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the sniff--to the satisfaction of a
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focused on the routineness of the a
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6 See People v. Dunn, 564 N.E.2d 10
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27 See Robert C. Bird, An Examinati
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323 (Friedrich G. Barth et al. eds.
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pre-Place decisions issued by the U
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97 See Illinois v. Caballes, 543 U.
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121 Id. at 37 n.4 (majority opinion
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147 462 U.S. 696 (1983). 148 See in
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171 Dunaway v. New York, 442 U.S. 2
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199 As Justice Souter explained,
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to school). 219 Cf. Katz & Golembie
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240 See Kyllo v. United States, 533
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263 In 2004, photographs emerged th
Page 175 and 176: 285 Id. at 1362. The story of this
Page 177 and 178: 306 But cf. Fitzgerald v. State, 86
Page 179 and 180: 328 Riley, 488 U.S. at 448 (observi
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Page 183 and 184: establish a right to privacy therei
Page 185 and 186: were locked and could only be opene
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Page 189 and 190: to investigate. Noting that a metal
Page 191 and 192: active domestic use. It housed ten
Page 193 and 194: Ciraolo,191 involving aerial survei
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Page 197 and 198: feet. The viewing from the helicopt
Page 199 and 200: cases as Ciraolo, Riley and Dow man
Page 201 and 202: premises were abandoned where all c
Page 203 and 204: 22 Young v. Harrison, 284 F.3d 863
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Page 207 and 208: (1983); State v. Eddy, 519 A.2d 113
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Page 211 and 212: eceived no answer to knock on front
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Page 217 and 218: 131 United States v. Llanes, 398 F.
Page 219 and 220: 167 The reference is to the “open
Page 221 and 222: however by fact lights were on insi
Page 223 and 224: properly crossed defendant’s land
Page 225: view”); State v. Merrill, 252 Neb
Page 229 and 230: is not to conclude that a search of
Page 231: 265 Such analysis was challenged by
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