Under the Fourth Amendment search and seizure analysis, the term “curtilage” refers to the area surrounding a dwelling in which the activity of home life extends, such as the backyard.  The “curtilage” is part of the home and, under the Fourth Amendment, may not be searched without probable cause.

Reference Desk:

State v. Hanson, 113 N.H. 689, 690-691 (1973).

The curtilage includes those outbuildings which are directly and intimately connected with the habitation and in proximity thereto and the land or grounds surrounding the dwelling which are necessary and convenient and habitually used for family purposes and carrying on domestic employment.  What is included within the curtilage is to be determined from the facts, including its proximity . . . to the dwelling, its inclusion within the general enclosure surrounding the dwelling and its use and enjoyment as an adjunct to the domestic economy of the family.

Reeves v. Churchich, 484 F.3d 1244 (2007).

The yard is also not part of the duplex’s curtilage. Curtilage is the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life.  It is entitled to the same Fourth Amendment protections that attach to the home itself.  We consider four factors in determining whether an area around a house is considered curtilage: (1) the proximity of the area 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, specifically, whether the area is used for the intimate activities of the home; and (4) the steps taken by the resident to protect the area from observation.  Applying these factors, although the front yard is in close proximity to the duplex, there is no evidence it (or any part thereof) is enclosed, is used for intimate activities of the home or is in any way protected from observation. Thus, we conclude the front yard is not within the duplex’s curtilage but rather is an “open field.” Dunn, 480 U.S. at 304, 107 S.Ct. 1134 (“[T]he term `open fields’ may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither `open’ nor a `field’ as those terms are used in common speech.”) (quotations omitted). Therefore, Churchich’s entry into the yard did not violate the Fourth Amendment. Oliver, 466 U.S. at 181, 104 S.Ct. 1735 (“[A]n individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers.”); Cousins, 455 F.3d at 1124(concluding that because the defendants’ sideyard did not fall within the curtilage of their home, law enforcement presence in the sideyard did not violate the Fourth Amendment). Consequently, Churchich’s mere visual observation of objects or people inside the Reeves’ apartment through Alicia’s bedroom window from the front yard was not a search under the Fourth Amendment. See Dunn, 480 U.S. at 303-05, 107 S.Ct. 1134 (finding police officer’s visual observation of barn’s interior by peering into its open front with a flashlight while standing outside the curtilage and in the open fields did not constitute a search); Hatfield, 333 F.3d at 1194 (finding officer’s visual observation of the defendant’s backyard from an open field (the defendant’s pasture) did not constitute a search).

State v. Lane, 922 A.2d 828 (N.J. Super. 2007).

As our Supreme Court has recognized, it is well settled that “[c]ertain lands adjacent to a dwelling called the `curtilage’ have always been viewed as falling within the coverage of the Fourth Amendment.” Ibid. (quoting 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 2.3(f) (3d ed. 1996)).

The boundaries of the curtilage are defined by four factors, namely: (1) “the proximity of the area … to the home”; (2) “whether the area is included within an enclosure surrounding the house”; (3) “the nature of the uses to which the area is put”; and (4) “the steps taken by the resident to protect the area from observation by people passing by.” United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94L.Ed.2d 326, 334-35 (1987). See also State v. Domicz, 188 N.J. 285, 302, 907 A.2d 395 (2006); State v. Johnson, supra, 171 N.J. at 208-209, 793 A.2d 619. The trial judge’s opinion does not contain findings as to all these factors.

There is no dispute, however, that the headband was located within an enclosure immediately adjacent to the home. The record does not reveal the nature of the uses to which this area was put, but the record gives no reason to doubt that the owner’s use of this area — as demonstrated by the encircling impervious wooden fence — was intended to be kept private from observations by passersby. In short, the record permits no dispute about the fact that the area in which the headband was found was within the curtilage and subject to the protection of the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution.

That the item seized is found within the curtilage, however, does not foreclose the applicability of the plain view exception. The curtilage may include certain “semi-private areas,” where visitors would be expected to go, such as walkways, driveways and porches. State v. Johnson, supra, 171 N.J. at 209, 793 A.2d 619(quoting LaFave, supra, § 2.3(f)). “Observations made from such vantage points are not covered by the Fourth Amendment.” Ibid. Accordingly, the seizure of an item seen within the curtilage is not invalid if the officer had a right to be at his vantage point, such as a semi-private area or on the street.

The trial judge found credible the testimony of Detective Braconi that, while standing on the driveway near an open gate in the fence surrounding the backyard, he saw with the aid of a flashlight, a headband in plain view. Bound by the finding that the officer was standing on the driveway at this time, State v. Locurto, 157 N.J. 463, 470-71, 724 A.2d 234 (1999), we are required to conclude that the officer was in a “semi-private area” where a visitor might be expected to go and what he may have seen in plain view from that vantage point, even with the aid of a flashlight,[6] would not preclude a finding that the first prong of the plain view exception was met.

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