§ 3.2.12 Open Fields, Curtilage, and Knock and Talks
See also § 3.2.3, “Using Visual Aids or Viewing from Lawful Vantage Point” and § 3.1.2, “Houses–Expectation of Privacy,” including “Doorways, Hallways and Driveways.”
1. General Rule. “As a general proposition, the police may see what may be seen from a public vantage point where they have a right to be.” Florida v. Riley, 488 U.S. 445, 449-50 (1989). There was no expectation of privacy in backyard that was open to physical access and view by neighbors. State v. Platt, 130 Ariz. 570, 573, 637 P.2d 1073, 1076 (App. 1981) (Div. 2); State v. Lopez, 115 Ariz. 40, 563 P.2d 295 (App. 1976) (Div. 2) (no expectation of privacy in unfenced backyard and carport).
However, curtilage surrounding the home is considered protected. Collins v. Virginia, 138 S. Ct. 1663 (2018) (tarp-covered motorcycle parked directly next to house on driveway was considered located on curtilage and officer could not lift tarp to search motorcycle under automobile exception); Florida v. Jardines, 133 S. Ct. 1409 (2013) (a search occurred when an officer took his drug-sniffing dog to the defendant’s front porch, which was on his curtilage, and the dog alerted to the presence of marijuana); State v. Olm, 223 Ariz. 429, 224 P.3d 245 (App. 2010) (Div. 2) (officer improperly crossed curtilage to look at car parked on front yard; this was not proper knock and talk). See also United States v. Romero-Bustamente, 337 F.3d 1104 (9th Cir. 2003) (Arizona house was located next to border; small, enclosed backyard immediately adjacent to house constituted protected curtilage; officers could not enter without warrant or warrant exception to apprehend suspected illegal aliens hiding in the backyard).
Officers may cross the curtilage, however, to conduct a “knock and talk.” See “Knock and Talks,” infra. See also State v. Olm, 223 Ariz. 429, 224 P.3d 245 (App. 2010) (Div. 2) (“[N]o Fourth Amendment violation occurs when an officer, without a warrant, crosses the curtilage to knock on the front door to ask questions of the resident.”).
2. Open Fields v. Curtilage. A person has no expectation of privacy in “open field” areas. “[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.” Oliver v. United States, 466 U.S. 170, 177-78 (1984) (the right to privacy does not extend to a person’s open fields, and the government had intruded only on an open marijuana field area located on the defendant’s property). In the case of open fields, “the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment.” Id. at 183-184. See also Hester v. United States, 265 U.S. 57, 59 (1924) (right to privacy does not extend to a person’s open fields, and even if there had been a trespass, the agents did not violate the Fourth Amendment by making observations on an open field area of his land). The Court in Oliver defined “curtilage” as “the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life.” Id. at 180 (internal quotations omitted).
To determine whether an area is considered “open fields” (unprotected) or “curtilage” (protected), the Supreme Court examines four factors:
1. the proximity of the area claimed to be curtilage to the home;
2. whether the area is included within an enclosure surrounding the home;
3. the nature of the uses to which the area is put;
4. the steps taken by the resident to protect the area from observation of people passing by.
United States v. Dunn, 480 U.S. 294 (1987). These factors “bear upon the centrally relevant consideration?whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. at 301. See also Florida v. Jardines, 133 S. Ct. 1409 (2013) (defendant’s front porch was located on curtilage).
The Supreme Court more recently observed:
The “‘conception defining the curtilage’ is . . . familiar enough that it is ‘easily understood from our daily experience.’” Jardines, 569 U.S., at 7, 133 S. Ct. 1409 (quoting Oliver, 466 U.S., at 182, n. 12, 104 S. Ct. 1735). Just like the front porch, side garden, or area “outside the front window,” Jardines, 569 U.S., at 6, 133 S. Ct. 1409, the driveway enclosure where Officer Rhodes searched the motorcycle constitutes “an area adjacent to the home and ‘to which the activity of home life extends,’” and so is properly considered curtilage, id., at 7, 133 S. Ct. 1409 (quoting Oliver, 466 U.S., at 182, n. 12, 104 S. Ct. 1735).
Collins v. Virginia, 138 S. Ct. 1663, 1671 (2018) (motorcycle parked next to home on driveway was located on curtilage).
See also United States v. Barajas-Avalos, 377 F.3d 1040, 1054 (9th Cir. 2004) (Ninth Circuit reviewed “whether an area of land is protected under the Fourth Amendment as the curtilage of a dwelling house”); United States v. Brady, 993 F.2d 177 (9th Cir. 1993) (district court’s finding that outbuilding was not within protected curtilage of defendant’s house was not clearly erroneous; outbuilding was 45 feet from house, fence segregated outbuilding from house, outbuilding was used primarily for storage or as children’s play area, officers’ observations and informant’s tip indicated that outbuilding was used primarily to grow marijuana, and outbuilding was easily visible from open fields surrounding property); United States v. Johnson, 256 F.3d 895 (9th Cir. 2001) (discussion of curtilage and open fields).
It is not a search to peer into a structure from an open field’s vantage point. United States v. Dunn, 480 U.S. 294 (1987) (barn 60 yards from house, outside fence, not being used for home activities and not protected from observation was not within curtilage); see also United States v. Hammett, 236 F.3d 1054 (9th Cir. 2001) (not a search for officers lawfully present on side of house during effort to conduct knock and talk to peer into house through crack in wall, “without making any contortions”); United States v. Wheeler, 641 F.2d 1321...
