We now have a number of appellate opinions interpreting the defensive force statutes enacted by the North Carolina General Assembly in 2011. In State v. Kuhns, ___ N.C. App. ___ (July 3, 2018), we have our first opinion squarely addressing the provisions of G.S. 14-51.2, which deals with defensive force in a home, workplace, or motor vehicle. This post focuses on the home, where the conflict in Kuhns occurred, but some of the same principles apply to the workplace and motor vehicles. Continue reading
Tag Archives: curtilage
Defensive Force in the Home
Even When the Controlled Buys Happen at the Back Door, Knock and Talks Must Happen at the Front Door
I’ve blogged before about whether law enforcement officers may go to a side door, or the back door, when attempting to conduct a knock-and-talk. The court of appeals just decided another case on point, again holding that an officer generally may not do so. Continue reading →
Collins v. Virginia: Supreme Court Directs Traffic at the Intersection of the Automobile Exception and Searches of the Home
An officer sees a motorcycle that he has probable cause to believe is stolen parked in the suspect’s driveway. The motorcycle is partially covered by a tarpaulin. May the officer lawfully walk into the driveway without the permission of the suspect or any other resident and lift the tarp to read the license plate and VIN number on the motorcycle? Continue reading →
North Carolina Supreme Court Upholds Search of Vehicle Located on Premises as Within Scope of Search Warrant
The North Carolina Supreme Court in State v. Lowe (December 21, 2016) ruled that a search warrant validly authorized a search of a vehicle parked on the driveway of the premises and within its curtilage, and it reversed a contrary ruling by the Court of Appeals (State v. Lowe, 774 S.E.2d 893, 21 July 2015). This post discusses the supreme court’s ruling. Continue reading →
North Carolina Supreme Court Upholds Warrantless Seizure of Drugs on a Home’s Curtilage
The Fourth Amendment protects the home as well as its curtilage, which is defined as the area immediately surrounding the home and associated with it. Recently, the North Carolina Supreme Court in State v. Grice, 2015 WL 304075 (Jan. 23, 2015), was confronted with a Fourth Amendment issue involving the curtilage. The court held, reversing the court of appeals, ___ N.C. App. ___, 733 S.E.2d 354 (2012), that officers who were validly on the curtilage of a residence to conduct a knock and talk did not violate the Fourth Amendment when they saw marijuana plants 15 yards away on the curtilage and warrantlessly seized them. Continue reading →
Kathy Taft was bludgeoned and raped on March 5, 2010, as she lay in the bedroom of a friends’ home in Raleigh recovering from surgery. She died four days later. Raleigh police tracked down her killer, Jason Williford, through what then-police chief Harry Dolan called “gumshoe detective work”: They collected and tested trash discarded by neighborhood men who refused to provide samples of their DNA. Continue reading →
Going to the Back Door
The court of appeals just decided a case that’s important for officers, as well as lawyers and judges, to know about. The case is State v. Pasour, and it began when officers received a call “that a subject living at [a specific address] had marijuana plants growing with his tomato plants.” The officers decided to do a knock-and-talk at the residence. They knocked on the front and side doors and got no response. Pursuant to what they described as a “standard procedure,” they then went around to the backyard, heading for the back door. There was no path or other indication that visitors regularly used the back door, and in fact there was a “no trespassing” sign in the side yard, though the officers apparently did not notice it. As they entered the backyard, the officers saw marijuana plants in plain view. They seized the plants, and charged the defendant with drug offenses.
The defendant moved to suppress, arguing that the officers exceeded the bounds of a permissible knock-and-talk when they went around to the backyard. The trial court denied the motion, and the defendant pled guilty and appealed. The court of appeals reversed. It found that “the determinative issue is whether or not the homeowner had a reasonable expectation of privacy in the area of curtilage the officers entered when they first viewed the contraband,” and it ruled that the defendant did have such an expectation.
Finding no in-state authority on point, the court contrasted two Fourth Circuit cases: Alvarez v. Montgomery County, 147 F.3d 354 (4th Cir. 1998), where the court stated that “[t]he Fourth Amendment does not prohibit police, attempting to speak with a homeowner, from entering the backyard when circumstances indicate they might find him there,” and Pena v. Porter, 316 Fed. Appx. 303 (4th Cir. 2009), in which the court ruled that if there is no reason to believe that a resident is in the backyard or that a knock at the back door will produce a different result from a knock at the front, entering the backyard is generally improper. The court of appeals found the case at bar more similar to Pena than to Alvarez, noting that there was no indication that the defendant would be found in the backyard. Furthermore, the court said, “while not dispositive, a homeowner’s intent to keep others out and thus evidence of his or her expectation of privacy in an area may be demonstrated by the presence of ‘no trespassing’ signs.” Accordingly, it ruled that the defendant had a reasonable expectation of privacy in the backyard, and that the officers’ entry was unreasonable.
There are quite a few out-of-state cases in this area, and many of them support going to the back door under at least some circumstances. In addition to Alvarez, see Hardesty v. Hamburg Township, 461 F.3d 646 (6th Cir. 2006) (“[W]here knocking at the front door is unsuccessful in spite of indications that someone is in or around the house, an officer may take reasonable steps to speak with the person being sought out even where such steps require an intrusion into the curtilage.”), and United States v. Garcia, 997 F.2d 1273 (9th Cir. 1993) (finding a backyard is not protected where there is no reasonable expectation of privacy because the back of the house is used as the principal entrance of the dwelling). See also generally 1 Wayne R. LaFave, Search and Seizure 601 n. 215 (4th ed. 2004) (collecting cases)
I have to admit that some of these decisions puzzle me. I have always understood the curtilage to be an extension of the home, accessible to officers only with a warrant or under an exception to the warrant requirement. Officers can go to the front door for a knock-and-talk even though the front door is within the curtilage because homeowners expect, indeed implicitly invite, visitors of all kinds to the front door. So the consent exception to the warrant requirement applies to officers approaching the front door. But if there’s no path around back that amounts to an implicit invitation for visitors to follow it, I don’t know of a warrant exception that would allow officers to enter the backyard. Alvarez and Hardesty say that entering the backyard to access the back door is permissible if a person may be in the house, but whether the house is occupied doesn’t strike me as particularly relevant. If the crucial issue is, as the Pasour court put it, “whether or not the homeowner had a reasonable expectation of privacy in the area,” whether the occupant happens to be home at a particular moment doesn’t factor into that equation. And if there were some kind of diminished expectation of privacy based on occupancy, it would seem that the officers could then skip the backyard altogether and proceed directly into the home itself!
To be clear, Pasour itself doesn’t say that the backyard is generally off limits. The facts before the court didn’t establish that anyone was inside the house, much less in the backyard, so the court didn’t need to address whether such circumstances would support going around back. As noted above, many out-of-state cases have held that they would, so if I were advising officers, I would advise that going around back is probably permissible if there appears to be someone in the home or in the backyard, unless the backyard is exceptionally secure from intruders, such as by a high fence with a locked gate. If others read Pasour or the out-of-state cases in this area differently, please weigh in.
Multi-Unit Dwellings and Curtilage
I blogged previously about whether the concept of curtilage applies to multi-unit dwellings like duplexes and apartment buildings. It’s an interesting question, and the cases summarized in the prior post show that the courts aren’t in complete agreement on the issue. I recently had a question on point, and one of the clipping services I get just highlighted a new case on the subject, so I thought I’d mention the case as a way of providing a quick update.
The case is State v. Milton, __ N.W.2d __ 2012 WL 4094366 (Minn. Sept. 19, 2012). In a nutshell, the police suspected that the defendant was involved in, or at least knew about, a shooting, so they went to his home. He lived in the upstairs unit of an up/down duplex. While several officers went to the front door, another officer went to the back door in case anyone tried to leave by that route. There she saw “two shell casings. One shell casing was located on the platform of a stairway leading to [the defendant’s] back door, and the other shell casing was located further up that stairway. Even though she did not have a search warrant, [the officer] took possession of the shell casings.” The casings helped tie the defendant to the murder.
The defendant moved to suppress the casings, but the trial judge ruled that the officer was lawfully present and that the casings were in plain view. After he was convicted, the defendant appealed the ruling, arguing that the officer was not lawfully present because the casings were within the curtilage of his home. The appellate court affirmed. It stated that “a resident of a multifamily residence has a diminished expectation of privacy in the common areas surrounding the residence,” and concluded that the external stairway where the officer found the casings served both units to some extent, was therefore a common area, and thus was not part of the defendant’s curtilage.
Do Multi-Unit Dwellings Have Curtilage?
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?