Do Multi-Unit Dwellings Have Curtilage?

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The curtilage of a home is the area “directly and intimately connected with the [home] and in proximity” to it. State v. Courtright, 60 N.C. App. 247 (1983). In other words, it is the area that “harbors the intimate activity associated with the sanctity of a man’s home and the privacies of life.” United States v. Dunn, 480 U.S. 294 (1987) (internal quotation marks and citations omitted). Classic example of curtilage include attached garages, back patios, and fenced-in back yards.

Because the occupants of a home have a reasonable expectation of privacy in the curtilage, it is protected by the Fourth Amendment, meaning that it can’t be searched by a law-enforcement officer without a warrant unless one of the exceptions to the warrant requirement applies. See generally Robert L. Farb, Arrest, Search and Investigation in North Carolina 73 (3d ed. 2003); Dunn, supra (stating that the curtilage is “treated as the home itself” for Fourth Amendment purposes).

In Dunn, the Court stated that four factors must be considered when determining whether an area is part of the curtilage of a home: “the proximity of the area . . . to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” There are plenty of interesting cases weighing and balancing those four factors in connection with single-family houses, but one of my favorite Fourth Amendment puzzlers is whether and how the concept of curtilage applies to multi-unit dwellings.

Take a typical side-by-side duplex, for example. Suppose that there’s a fenced in backyard shared by the occupants of both sides. One could argue that because the area is shared, neither side’s occupants can reasonably claim that it is private. On the other hand, one could argue that the mere fact that a handful of others have access to the area isn’t fatal to the expectation of privacy, any more than the fact that a meter-reader may access the yard of a single-family home destroys the expectation of privacy that the home’s residents have in the yard.

What have the courts said? Here’s a sampling:

  • In Reeves v. Churchich, 484 F.3d 1244 (10th Cir. 2007), the court held that the front yard of a duplex was not within the curtilage, because it was open to the street and because there was no evidence that the occupants of one side “could exclude others from the yard and it appears they shared the yard” with the occupants of the other side.
  • In United States v. King, 227 F.3d 732 (6th Cir. 2000), the court held that the all the tenants of a duplex had a reasonable expectation of privacy in a shared basement, though the basement was not technically part of the curtilage because it was a part of the duplex itself.
  • In United States v. Acosta, 965 F.2d 1248 (3rd Cir. 1992), the court argued that the Dunn factors may need to be modified or weighted differently in urban settings, then held that the back yard of an apartment building was not the tenants’ curtilage on the facts of the case.
  • In United States v. Arboleda, 633 F.2d 985 (2d Cir. 1980), a case involving an item seized from a ledge outside a second-story apartment, the court said that “it is doubtful that the curtilage concept has much applicability to multifamily dwellings such as the one involved here.”
  • In United States v. Stanley, 597 F.2d 866 (4th Cir. 1979), the court described this issue as “thorny” and held that a common parking area in a mobile home park was not within the curtilage of any resident’s home.
  • In United States v. Cruz Pagan, 537 F.2d 554 (1st Cir. 1976), the court held that the parking garage of an apartment building was not the tenants’ curtilage, and stated that “[i]n a modern urban multifamily apartment house, 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 People v. Shaw, 97 Cal.App.4th 833 (Cal. Ct. App. 4th Dist. 2002), the court stated that “what might be one person’s curtilage, in the context of a private single occupancy residence, becomes less subject to privacy expectations in the context of the grounds of a multi-unit apartment complex,” and held that the fenced-in back yard of a four-plex was not subject to an expectation of privacy.

I’m not aware of a North Carolina appellate case on point. Let me know if you are. From the above cases and others, I conclude as follows: (1) the law’s not settled in this area; (2) the larger the number of units in a dwelling, the less likely that common areas are subject to a reasonable expectation of privacy; and (3) layout matters, e.g., if a duplex has a divided back yard such that each side has its own space, the occupants are more likely to have a reasonable expectation of privacy than in an undivided yard. In particular cases, other factors also may be relevant. For example, if both sides of a duplex are occupied by members of the same extended family, the back yard of duplex may seem more like a private area than if the the occupants of the two sides are unrelated. Anyone have additional or different thoughts?

7 comments on “Do Multi-Unit Dwellings Have Curtilage?

  1. It appears that courts’ general directions seems to be that the hallway in front of an apartment door will not be considered curtilage. Residents and their guests can use the hallway, so the expectation of privacy is diminished. That would mean contraband in that hallway is not subject to the exclusionary rule.

    Some courts (not all, of course) have ruled that curtilage includes the back yard which is shared with other tenants. Some apartments have a court yard behind all of its apartments. It’s very likely that contraband found in that court yard — identifiable to a defendant — would be regarded as fair game.

    Now let’s see if we can apply the in-plain-view doctrine to hallways and court yards. How close can a police officer come to a window of an apartment from the court yard or look over the shoulder of a defendant answering the door before curtilage can be claimed?

    In the case of a door being opened only wide enough for a defendant to see who knocked, can there be any restrictions on the claim of an officer that he could invoke in plain view? Is an officer in his rights to step up or close to the window of an apartment facing a courtyard to assert in plain view?

    Without some restrictions, police officers can assert in plain view as a way to avoid having to establish probable cause to obtain a warrant.

    And case law on this?

  2. I came across this article as I was searching for ways to defend myself against a neighboring renter’s complaint to my HOA that the vegetation in my private courtyard area is ruining her ability to enjoy her property.

    I am a reservist, serving overseas on active duty – and this is the LAST thing I want to me dealing with right now.

    My property is in Mecklenburg county, the city is Davidson. I have an end unit townhome with a detached garage. there is a 6 foor tall privacy fence on both sides of my courtyard and the HOA maintains the exterior and communal property.

    When the HOW manager first contacted me, I asked him how he was able to see the vegetation behind my six foot tall privacy fence. he replied that he had not seen it (not even from the street) and that it was reported by a neighbor. This neighbor is a 60+ year old woman, and she is nowhere near 6 foot tall either. I am sure that she is viewing my courtyard area from her second story window.

    I believe that this is a violation of my privacy – and that the HOA (and the neighboring renter) have no business complaining about what is behind my fence.
    There is no indoor furniture sitting outside, no clothesline, no garbage. just tall vegetation.

    How do I defend my rights behind a privacy fence where there is clearly no communal usage of the area ?

    What if the HOA send someone (to climb) over the fence into my property ?

    Any insight would be helpful – I cant exactly travel back to NC from where I am.

    Thank you,

    Military Neighbor

  3. […] Had Williford discarded the cigarette butt in the driveway of a single family home where he lived, he would likely have prevailed on the motion, as the driveway of a home generally is considered to lie within its curtilage.  See, e.g., State v. Grice, __ N.C. ___ (Jan. 23, 2015) (characterizing the “driveway and front porch” of defendant’s home as curtilage); see also State v. Reed, 182 N.C. App. 109, 110-14 (2007) (holding that trial court erred in admitting DNA evidence obtained from cigarette butt that defendant flicked onto his patio as defendant had a reasonable expectation of privacy on his patio).  But, at the time of Williford’s trial, no North Carolina court had ruled on the scope of curtilage for a multi-unit dwelling. […]

  4. After reading the Jardines v. Florida case that was subject to SCOTUS review, I have determined that the enclosed common area of a multi-family building, such as the limited common areas of a condominium entrance, are areas that are appurtenant to the home. The home simply can not be used or enjoyed without residents moving through this enclosed area of appurtenance because the units are dependent on using this area to come and go. The limited common area is attached or connected to the home and the connection is necessary. This clearly makes this area appurtenant to the home. Since the protection of the house is extended to all its appurtenants and branches it is clear that the enclosed common areas should be considered “curtilage” or at least a constitutionally protected area of appurtenance of the home. Since the Supreme Court equates the house and a home as one and the same, it is difficult to argue against this interpretation. As in the Jardines case, the Supreme Court did not even consider if an expectancy of privacy exists on one’s front porch due to a trespass onto a constitutionally protected area, one would have to consider the trespass into or onto a constitutionally protected area of appurtenance to the home is one and the same.

  5. I would like an opinion on how you believe this applies to multi-family units when the unit itself is locked or controlled by key access? Do the resident’s gain more expectation of privacy because of the more secure nature? Do the tenants gain a little more property interest and now have some right to exclude others from otherwise common areas? Do Fernandez v. California or Georgia v. Randolph have any controlling authority when the building itself is locked or key-controlled? Just seeking an opinion on what a tenant’s expectation of privacy should be in a unit that is locked and generally not open to the public. The problem always seems to come back on when one tenant allows an officer in, then that officer is traversing hallways which are common areas. Thank you for any feedback.

    • If a police officer enters a limited common area, he has entered an area where the right to common is extinct. Limited commons are areas of shared ownership and it is expected to have other owners and their guests use this area of appurtenance, but not police wielding trained dogs sniffing out the interior of a specific unit. SCOTUS has already ruled that when investigating a home a police officer only has the right to do what any other citizen may do. If a police officer enters this area to investigate a specific unit, he has committed a wanton trespass on private property, because the right of common is extinct and the officer’s wishes are to violate the privacy of that resident’s property. If the individual is home when the investigation occurred, his rights are doubled. No man can trespass on another unless that other has taken his leave. Any evidence gathered by police from an area they have no right to be is subject to the exclusionary rule. In the State of Maryland, there is legislation that supposedly allows these trespasses called “Administrative Warrants”. However, “Administrative Warrants” must meet constitutional requirements if the suspected violation is criminal in nature and any legislation that seems to contradict these requirements is in violation of the 4th and 14th Amendments and is therefore null and void. Most of the time, these types of searches are used to detect some sort of contraband such as drugs. You must remember that President Nixon declared a war on drugs in 1965 and no President since then has rescinded that declaration. The war on drugs isn’t a war against drugs, it is a war against the American people who use drugs. When a country declares war on its own citizens in an effort to regulate the population in a way that WE THE PEOPLE never gave them any Constitutional authority to regulate, that country’s government has committed treason against its own people and should be considered intolerable. It is treason, as defined by Article 3 of the United States Constitution and should be recognized as the treason that it is.

    • After reading Fernandez v. California, there seems to be no correlation of cases in relation to dog sniffs on limited common areas because there was physical evidence of the battered girlfriend at the door. This physical evidence would denote a victim and could be considered an exigent circumstance regarding the girlfriends safety. One could say these are similar as odor detected by a dog could be physical evidence, but when a door is closed and locked a dog sniff is violating the minimal expectancy of privacy of a home(Kyllo v.US & Jardines v. US Concurring Plurality Opinion) and the intent to enter an area for this purpose is still a trespass aimed at committing this violation of privacy. There is no exigent circumstances as there is no victim. If there is no victim, there is no crime. It depends on the reason the police are investigating the area. As for Georgia v. Randolph, another resident of the building could grant police to enter to conduct an allowable police investigation, but they would still be violating the privacy of an occupant when they approach a dwelling’s door with a dog as there is no traditional invitation to invite police in to conduct a dog sniff search. Remember, dog sniff’s are not considered a device in common public use. In most cases, in order to prevent lawsuit, the police will lie and say they hit buttons until a resident let them in without any real authority of a consensual search. This occurs because of condo association rules that prohibit allowing trespassers into a building to cause harm to another resident. So, NO, there is no controlling authority in the above two cases when it comes to the questions you ask. Remember, it was the police officer’s intent to wantonly trespass onto private property and to trespass on a resident’s 4th Amendment rights from the start. Since this tactic or “device” is born from criminal activity by police, to commit acts arguably reminiscent of state terrorism and treason, this has to be considered intolerable. Another outlook is these tactics are mostly used to enforce laws regarding marijuana and the government has know that marijuana should NOT be on the schedule 1 list of substances since 1972, which adds to the intolerability. The police can not break the law to enforce the law and still be considered the law. When they do this they have become a legitimate organized crime syndicate that commits domestic terrorism and treason. It is my opinion that any Judge that allows this, has in fact colluded with this organized crime syndicate, knowingly and willingly with the police. In cases such as these, all judicial immunities should be extinct as well and those whom judge others shall be judged themselves in such matters. I know this may seem as impeding on the integrity of the court, but one has to see that the court has acted without honor or integrity in the first place by allowing evidence from a warrantless search that provides tainted probable cause to grant a tainted search warrant. Even in the case of an Administrative warrant, this is just as intolerable.

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