UNIVERSITY OF THE DISTRICT OF - UDC Law Review

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