Fourth Amendment yard work: curtilage's mow-line rule.

INTRODUCTION

I. A GRAPHIC EVOLUTION OF THE FOURTH AMENDMENT HOUSE

A. Defining the Fourth Amendment House

B. Curtilage as a Boundary Within Which Structures Are Granted

Protection

C. Modern Curtilage: Curtilage Itself Gets Fourth Amendment

Protection

D. Curtilage Gets a z-Axis: Aerial Surveillance Cases

E. Katz or Curtilage?

II. CUTTING OLIVER'S "CLEARLY MARKED" BOUNDARY WITH A LAWNMOWER

A. Curtilage in a Nation Without Walls

B. Weed in the Grass

C. Mow-lines

1. Keep off the grass

2. On grass

III. Is LAWN PRIVACY REASONABLE?

A. Brief History of Lawn Privacy

B. Curtilage's Antiurban Bias

C. 'Burb Curtilage

CONCLUSION

No, that's not in the curtilage, counsel.... That's too

far ... [Ms. Chaussee] has drawn on her demonstrative exhibit No. 15 the

area that is covered by not only the house and the shop, but I think by

her lawn mower or weed whacker or whatever she uses in order to kind of

keep things beat down, and at most, that would be the curtilage. (1)



INTRODUCTION



In 1999, the Museum of modern Art (MoMA) in New York hosted an

exhibition entitled The Un-Private House. (2) MoMA claimed the exhibit

laid the groundwork for the first architectural debate of the

twenty-first century--how to define privacy in the house. Terence Riley,

an architectural theorist and Chief Curator of MoMA's Department of

Architecture landscaping design and Design, declared, "Privacy is no longer drawn at

the property line" (3) and argued that privacy in the American

house was eroding. The evidence supporting this thesis came from

twenty-six houses designed by prominent architects and gathered for the

exhibit. Riley scrutinized these houses for architectural clues and

concluded that the distinct line between the public and private zones of

the past had become "blurred" and "fluid" in

today's houses. (4)



During the past twenty years, courts across America have been

actively engaged in a similar endeavor--looking for architectural clues

and reading markers in the landscape to determine where the privacy of a

house begins and ends. The stakes here, however, are higher than they

are for architectural theorists. The line between public and private

under the Fourth Amendment can determine whether an accused goes to

prison or not. (5)

One can imagine that the house, as mentioned in the Constitution,

might have a clear boundary--ending at the threshold (6) between inside

and outside. In the Supreme Court's decision in Oliver v. United

States, (7) however, the Court said that, for purposes of the Fourth

Amendment, the house spills out-of-doors to a space called "the

curtilage." (8) Under Oliver's modern definition of curtilage,

(9) "house" now includes curtilage, (10) and because curtilage

is a landscaping design larger area than the physical structure of a house, one has to know

how far the curtilage extends from the house to determine the scope of

Fourth Amendment privacy. The majority in Oliver thought this inquiry

would be easy. The Court stated, "for most homes, the boundaries of

the curtilage will be clearly marked; and the conception defining the

curtilage--as the area around the home to which the activity of home

life extends--is a familiar one easily understood from our daily

experience." (11)



But the curtilage's boundary was not as clearly marked as the

Court thought. Four years after Oliver, the Court announced a curtilage

standard in United States v. Dunn. (12) Under Dunn, the

"extent-of-curtilage" (13) is analyzed through four factors:





[1] [T]he 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, and [4]

the steps taken by the resident to protect the area from observation

by people passing by. (14)

Since the common law, determining the curtilage has always involved

looking to a house's landscape architecture. In England, where the

idea of curtilage originated, the inquiry was simple: The curtilage

included the buildings enclosed by the wall surrounding the house.

America's residential landscape architecture, however, is

different. Americans usually do not have walls or fences around their

houses. (15) Therefore, under the Dunn standard, courts go looking for

other architectural clues to determine the scope of the curtilage.



In looking for clear dividing lines like fences, walls, or other

marks in the landscape to find the curtilage boundary, some courts are

turning to a bright-line or mow-line rule--if officers set foot on mowed

grass, then they have invaded the curtilage. (16) If "curtilage is

the area to which extends the intimate activities associated with the

sanctity of a man's home and the privacies of life and therefore

has been considered part of the home itself for Fourth Amendment

purposes," (17) is it reasonable that this area extends to the

limit of where a homeowner takes the John Deere? This Note is an attempt

to investigate the developing definition of curtilage and the questions

it raises.

The Note is divided into three Parts. Part I traces the evolution

of the Fourth Amendment house and curtilage graphically. Today, there is

an overwhelming sense that zones of privacy are shrinking. (18) This

Part examines how the Fourth Amendment zone of privacy may actually have

expanded with the inclusion of modern curtilage into the definition of

"house."



The curtilage doctrine was imported with the common law from

England. Part II examines the difficulty in translating the doctrine

into the American context and considers the heightened importance the

war on drugs has placed on the curtilage boundary. In warrantless

searches, police risk the exclusion of any evidence resulting from the

search (19) and therefore they have an interest in staying off the

curtilage. As this Part illustrates, the police often avoid entering

mowed areas, and it often appears that courts rely, in part at least, on

a mowline role to determine the extent of the curtilage.



Part III questions whether society is prepared to recognize lawn

privacy as reasonable. In recent "aerial surveillance cases"

and in Kyllo v. United States, (20) the Court suggested the appropriate

inquiry for examining curtilage privacy is the Katz v. United States (21) two-part reasonableness framework. (22) In exploring the issue,

this Part looks at lawn privacy historically, the antiurban character of

curtilage, and briefly considers suburban curtilage.



I. A GRAPHIC EVOLUTION OF THE FOURTH AMENDMENT HOUSE



This Part graphically illustrates the evolution of the meaning of

"houses" in the Fourth Amendment. In reviewing this history,

this Part also questions two assumptions taken for granted today. The

first assumption is that our zone of privacy is shrinking. (23) As the

following analysis illuminates, with the addition of a modern

understanding of curtilage, our constitutional zone of privacy around

the house has actually expanded since the framing. The second assumption

is that the common law meaning of "house" as applied to the

Fourth Amendment included the curtilage. (24)



A. Defining the Fourth Amendment House



It may seem unnecessary today to analyze whether a structure is

defined as a "house" or not (25) after the announcement in

Katz v. United States (26) that the Fourth Amendment "protects

people, not places." (27) But the inquiry into whether a structure

is a house is important for two reasons. First, even after Katz, houses

are viewed as having heightened Fourth Amendment protection. (28)

Second, and more importantly for this Note, houses are the only

structures that clearly have curtilage. (29) Therefore the discussion

here begins with the question: What is a Fourth Amendment

"house"?



[FIGURE 1 OMITTED]



This may seem like a simple question. After all, children draw

pictures of them--the gabled roof, four windows, and smoke billowing out

of the chimney. But certainly more than just architecture distinguishes

houses from other kinds of places. The influential architect Le

Corbusier defined a house as a place affording protection from outside

observation. (30) The Constitution also defines a house as a place free

from observation--it is the only place expressly granted Fourth

Amendment protection from unreasonable searches. (31) Houses are

especially private (32) places, and the Constitution underscores this

point, (33) but the Constitution does not provide any clues as to what

kind of places are Fourth Amendment "houses." In California v.

Carney, (34) the United States Supreme Court confronted this house

definition issue. (35)



The police searched Carney's Dodge motor home without a

warrant, and Carney argued that the marijuana and paraphernalia found in

the motor home should have been suppressed at trial under the Fourth

Amendment. The California Supreme Court agreed, and it reversed the

trial court's finding that the search was permitted under the

"automobile exception" (36) and held that the motor home is

"more properly treated as a residence." (37) In reaching its

conclusion, the California court looked to the fact that Carney's

motor home was "equipped with at least a bed, a refrigerator, a

table, chairs, curtains and storage cabinets ... [that] created a

setting that could accommodate most private activities normally

conducted in a fixed home." (38) The fact that a motor home is a

"repository of intimate effects," (39) that the interior is

"often fully shielded from view by its design," (40) and its

"outward appearance" (41) also led the court to determine the

motor home was house-like and therefore protected.



The United States Supreme Court reversed the California Supreme

Court and held that the motor home fell within the automobile exception

because it was readily mobile and was in a place that indicated it was

being used as a vehicle. (42) The important part of the Carney decision

here is that the Court acknowledged that the "vehicle possessed

some, if not many of the attributes of a home." (43) Unfortunately,

the majority failed to elaborate on this statement, (44) but the

dissent's opinion provides a glimpse into what the Court considers

house-like attributes.



In the dissent's opinion, some structures are houses simply by

their outward appearance or architecture. A "brick bungalow or a

frame Victorian" clearly "serves as a permanent lifetime

abode." (45) But even structures that do not match this archetype may be house-like because of the functions they contain. Focusing on

this functionality inquiry, the dissent considered structures designed

to accommodate a "breadth of ordinary everyday living" to be

like houses. (46) Further, like the California Supreme Court, the

dissent noted that the motor home contained "stuffed chairs

[a]round a table; cupboards ... for storage of personal effects; bunk

beds [for] sleeping ... and a refrigerator ... for food and

beverages." (47)



Implicit in both the majority and dissenting opinions is the

interplay between two factors--form and function--that suggest whether a

structure qualifies for Fourth Amendment house protection. Under the

first, or form factor, the greater the similarity of a structure to the

archetypal home--"the brick bungalow or frame Victorian"--the

more likely it will fall within the express protection of the Fourth

Amendment. (48) When a structure deviates from the archetype, the Court

looks to the function of the place. The majority found that

Carney's motor home was more motor than home, and, therefore, its

primary function placed it within the automobile exception. (49) The

dissent on the other hand, thought the motor home was more home than

motor. Carney's Dodge could accommodate a "wide range of

private human activity"-sleeping, eating, storing personal

effects--and was associated with a particular way of living. (50) On

this basis, the dissent concluded the motor home functioned more like a

dwelling than a vehicle.



While Carney is the only Supreme Court case where the definition of

"house" was at issue, the lower courts have faced other

problems in determining whether structures like tents (51) and caves

(52) are sufficiently house like to receive constitutional protection.

Because these structures deviate from the archetypal house, as in

Carney, courts look to the functionality of a space to determine whether

it qualifies as a Fourth Amendment "house." (53)



Finding or simply concluding that a structure is a house, however,

is not the end of the inquiry to determine the scope of the house's

Fourth Amendment privacy protection. The privacy of the house extends

beyond the perimeter of its walls because courts have held that

"house" in the Fourth Amendment means "house plus

curtilage." (54) The following discussion begins the inquiry into

what constitutes the curtilage.



B. Curtilage as a Boundary Within Which Structures Are Granted

Protection



The idea of curtilage was imported with the common law from

England. (55) At common law, the curtilage concept was a boundary within

which structures were granted the same protection under the law of

burglary as afforded to the house itself. (56) As Blackstone states,

"And if the barn, stable, or warehouse, be parcel of the

mansionhouse, though not under the same roof or contiguous, a burglary

may be committed therein; for the capital house protects and privileges

all its branches and appurtenants, if within the curtilage or

homestall." (57)



In England, it was relatively simple to locate the curtilage

boundary because it was collinear with the wall that surrounded most

dwellings. (58) Turning to Figure 2, the curtilage boundary is

represented as an imaginary dashed boundary line. The structures within

this boundary at common law were considered part of the house for the

law of burglary. Therefore, on Figure 2, the two structures outlined in

a solid line would be considered part of the house, while the

shed--represented with a dotted line--would not be part of the house.



[FIGURE 2 OMITTED]



As discussed below in Part II, the lack of walls or fences around

houses in the United States has caused considerable problems

establishing the extent of curtilage in America. (59) While the idea of

the curtilage as a boundary within which structures are protected was

originally applied in the burglary context, it was first read into the

Fourth Amendment by the Supreme Court in Amos v. United States. (60)



In Amos, the defendant petitioned the trial court to return

property that was going to be used against him at trial. The evidence

was seized "in a search of defendant's house and store

'within his curtilage," made unlawfully and without warrant of

any kind, in violation of his rights under the Fourth and Fifth

Amendments." (61) The Supreme Court held that the petition should

have been granted. (62)



Note that in both the burglary (63) and Fourth Amendment context

under Amos, only structures are protected spaces. (64) Returning to

Figure 2 for illustration, the ground area of the yard within the dashed

boundary is not protected. (65) As is discussed next, not until dictum in Oliver v. United States (66) was there any suggestion that the

curtilage yard was included within the Fourth Amendment's purview.



C. Modern Curtilage: Curtilage Itself Gets Fourth Amendment

Protection



The preceding discussion illustrated that only physical structures

were protected under the original meaning of curtilage as applied to the

Fourth Amendment. (67) The Supreme Court in Oliver, however, announced

(68) what is being labeled here the "modern curtilage

doctrine." (69) Under this doctrine, structures within the

curtilage and the lawn (70) of the curtilage itself are protected.

Modern curtilage is a significant extension of the understanding of the

Fourth Amendment because after Oliver, if officers without a warrant

enter the curtilage (read: yard or lawn) of the house, (71) not just

structures within the yard, any evidence found is subject to the

exclusionary rule. (72) Figure 3 illustrates the modern curtilage. As in

Figure 2, structures within the curtilage are still protected, but

protection of the yard is added, as represented by the hatched lines.

The unprotected space outside of the hatched area is "open

field." (73)



[FIGURE 3 OMITTED]



In Oliver, police officers searched petitioners' (74) fields

without a warrant and discovered patches of marijuana plants. Against a

backdrop of the war on drugs, (75) and recent Court decisions admitting

drug evidence in Fourth Amendment search cases, (76) the Court had to

decide whether the search violated the Fourth Amendment. The petitioners

raised a colorable argument under Katz that they had a reasonable

expectation of privacy in the field--it was marked with a no trespassing

sign, the entrance to the farm was secured with a gate, and the field

itself was highly secluded. (77) In order to avoid excluding the

evidence under Katz, the Court turned to the open field doctrine

announced in Hester v. United States (78) and held that the field was

not protected by the Fourth Amendment. (79)



As part of the Oliver majority opinion, the Court conceded that not

all ground areas are "open fields" or places where people

cannot expect privacy. The Court did this by announcing in dictum that

the curtilage was still protected space. (80) Prior to this opinion, the

curtilage doctrine had only been applied to structures around the house.

(81) In this case, however, the marijuana was growing outside in a

field. The Court's mention of the curtilage under Oliver's

facts suggests that had the marijuana been growing in the house's

curtilage (lawn), the warrantless search would have violated the Fourth

Amendment and the evidence would have been suppressed.



The Oliver Court collaged three sources--Blackstone, Hester v.

United States, (82) and Boyd v. United States (83)--to create the modern

curtilage doctrine. It did this in two moves. First, the Court combined

Blackstone and Hester to distinguish an open field from curtilage:

"As Justice Holmes, writing for the Court, observed in Hester, the

common law distinguished 'open fields' from the

'curtilage,' the land immediately surrounding and associated

with the home." (84) The Court's second move used language

from Boyd, (85) a case that never mentions curtilage, to define the

curtilage as "the area to which extends the intimate activities

associated with the 'sanctity of a man's home and the

privacies of life' and therefore has been considered part of the

home itself for Fourth Amendment purposes." (86) This modern

curtilage was then defined as an "area immediately adjacent to the

home." (87)



Courts interpreted Oliver's curtilage to mean that the Fourth

Amendment protects the yard of the house. (88) Once the yard became part

of the Fourth Amendment "house," determining the size of it

became an important constitutional question. (89) According to Oliver,

the inquiry would be easy since "for most homes, the boundaries of

the curtilage will be clearly marked; and the conception defining the

curtilage--as the area around the home to which the activity of home

life extends--is a familiar one easily understood from our daily

experience." (90)



In United States v. Dunn, (91) the Court tackled the issue of how

far this modern curtilage extended. The line between curtilage and

noncurtilage proved not as bright as the Court in Oliver assumed. As a

result, the Court adopted a four-factor standard to resolve

extent-of-curtilage questions. (92)



In defining the scope of the modern curtilage in Dunn, the Court

did not consider the issue of whether spaces routinely accessed by the

public were included within the Fourth Amendment's reach. (93) In

the limited number of cases reaching this issue, courts have held that

driveways, sidewalks, and frontentry walkways that are exposed to the

public are not covered by the Fourth Amendment. (94) Figure 4 represents

this by subtracting driveways and walkways from the scope of the

curtilage.



[FIGURE 4 OMITTED]



D. Curtilage Gets a z-Axis: Aerial Surveillance Cases



Dunn created the standard for the horizontal reach of the modern

curtilage--its x- and y-axes. Two subsequent Supreme Court aerial

surveillance cases considered modern curtilage's ceiling. (95) By

establishing a curtilage ceiling, as illustrated in Figure 5, the

curtilage becomes a three-dimensional space that police may not enter

without a warrant. (96)



[FIGURE 5 OMITTED]



The first aerial surveillance case, California v. Ciraolo, examined

"whether naked-eye observation of the curtilage by police from an

aircraft lawfully operating at an altitude of 1,000 feet" violated

the Fourth Amendment. (97) The Court held under the second part of Katz

(98) that there was no search and therefore no Fourth Amendment

violation. (99) Although the Court did not set a curtilage ceiling, the

opinion implies that entry into the airspace above the curtilage with a

fixed-wing aircraft at some height between 0 and 1000 feet would

constitute an unreasonable search. (100)



In the second case, Florida v. Riley, (101) the Court considered

the following question: "[w]hether surveillance of the interior of

a partially covered greenhouse in a residential backyard from the

vantage point of a helicopter located 400 feet above the greenhouse

constitutes a 'search' for which a warrant is required under

the Fourth Amendment." (102) The Court held that it was not a

search. (103) In reaching this result, a plurality of the Court

suggested the test for an aerial surveillance search might hinge on whether the aircraft was in legally navigable airspace. (104) Justice

O'Connor, concurring in the judgment, agreed with the plurality

that there was no search based on Katz but rejected their reliance on

whether the aircraft was flying at an altitude contrary to law. (105)



In rejecting the navigable airspace test, the Court again failed to

establish a bright-line rule for the curtilage. Riley and Ciraolo held

that there was no search and therefore the height of the ceiling is

still in flux. However, what can be inferred from these decisions is

that the curtilage protection, the z-axis in Figure 5, extends somewhere

between 0 and 1000 feet for fixed-wing aircrafts, and between 0 and 400

feet for helicopters.



E. Katz or Curtilage?



Part I. A began (106) by suggesting that even with Katz's

announcement that the Fourth Amendment "protects people not

places," houses and their curtilage are a special kind of

constitutional space. Houses are expressly mentioned in the

Constitution, while phone booths and other spaces examined under the

Katz rubric are not. Furthermore, the curtilage has its own special

standard, (107) and three of the four factors of this standard are not

about "people" but look to the character of a

"place." (108) The aerial surveillance cases coupled with

Kyllo v. United States (109)--the latest Supreme Court decision

mentioning curtilage--however, suggest that curtilage's special

status is being pulled into Katz's expanding reach. (110)



In Ciraolo and Riley, the Court could have added a fifth factor to

Dunn to cover the vertical component of the curtilage. (111) Instead,

the Court conceded that the area surveyed was within the curtilage (112)

but relied on the second part of Katz to establish whether an

expectation of privacy from the air is "one that society is

prepared to honor." (113) Therefore, whether the police enter the

airspace above the curtilage is a Katz rather than a curtilage question.

By framing aerial surveillance as a Katz question, the Court takes the

notion that houses are extraordinarily protected areas out of the

inquiry (114)--curtilage viewed from above is looked at with the same

Katz scrutiny as are other places such as phone booths.



In Kyllo, the Court held that the use of a thermal-imaging device

aimed at a private home from a public street to detect the amount of

heat within a home was a search. (115) What is relevant here is the

Court's suggestion that Katz, not Dunn, is the appropriate test for

determining whether a search of the curtilage has occurred. (116) If

Oliver expressed the idea that "house" included curtilage for

purposes of the Fourth Amendment, Kyllo, in contrast, unearths the

pre-Oliver definition of house and suggests that the house ends at the

threshold: "We have said that the Fourth Amendment draws 'a

firm line at the entrance to the house.' That line, we think, must

be not only firm but also bright...." (117) The implication of the

aerial surveillance cases, combined with Kyllo, is that curtilage's

status as a specially protected space is waning--the Court may be done

with Dunn. In its place, the Court seems to be heading toward a Katz

reasonableness framework for curtilage questions in the future.



II. CUTTING OLIVER'S "CLEARLY MARKED" BOUNDARY WITH

A LAWNMOWER



In the brief history of the modern curtilage since Oliver, the

Court has twice rejected a bright-line rule. (118) First, the Court

rejected a "fence-line rule" in Dunn, (119) instead opting for

a four-factor standard. Second, in the aerial surveillance cases, the

Court failed to reach a majority for a navigable airspace rule to

determine the height of curtilage protection. (120) The Court relied

instead on the Katz reasonableness standard.



Before examining the mow-line analysis developing in some lower

courts, this Part considers two developments leading up to the emphasis

on mow-lines. First is the origin of curtilage in England and its

failure to translate into the American landscape. Second is the

importance of the curtilage boundary in the context of the war on drugs

and the increase in domestic marijuana production.



A. Curtilage in a Nation Without Walls



Though curtilage is as old as the common law, (121) courts today

still have difficulty defining it. The problem with curtilage is

partially an architectural one. England's landscape architecture is

different from America's landscape, making it difficult for our

courts to translate the curtilage doctrine into the American context.

(122)



In England, because of several enclosure acts, landholdings were

traditionally surrounded by fences, walls, or hedgerows. (123) These

elements compartmentalized the English landscape and made the boundary

of the curtilage easy to find. The American landscape, however, is not

so clearly divided. (124) Early in the twentieth century, American

jurists noted the difference between England's landscape

architecture and our own and concluded that this difference posed

serious problems for the application of the curtilage doctrine. (125)



It was not until recently that the problem was highlighted. For one

thing, the exclusionary role did not come into effect until the 1960s.

For another, until Oliver's decision in 1984, the curtilage only

protected structures. But the lawn's new Fourth Amendment status

coupled with increased production of domestic marijuana has increased

the amount of extent-of-curtilage cases. (126)



B. Weed in the Grass



If America's landscape architecture made it difficult to

establish a clear curtilage boundary, its marijuana drug culture (127)

has made it a pressing question. Ten to thirty million Americans are

marijuana users, and up to half of the marijuana consumed in this

country is homegrown by an estimated two million domestic growers. (128)

The enormous domestic production resulted from a marijuana shortage in

the early 1980s in tandem with the escalating price of the drug. (129)



As homegrown marijuana production increased, so did the

government's crackdown. In 2000, there were 734,497 arrests for

cannabis abuse violations. (130) In Indiana alone, the state's

cannabis eradication program in 1997 identified 3000 domestic

cultivators. (131) Nationally, the Drug Enforcement Agency

("DEA") initiated the Domestic Cannabis

Eradication/Suppression Program (DCE/SP) in 1979. (132) The DCE/SP was

responsible for the eradication of 3,068,632 cultivated outdoor

marijuana plants in 2001. (133)



Marijuana cultivation increased the potential for illicit activity

in the modern curtilage. Investigation of marijuana offenses often leads

police to areas around the home where plants can be grown for personal

use. As the curtilage doctrine makes clear, if the police enter the

curtilage without a warrant, any evidence found in the curtilage is

excludable under the Fourth Amendment. (134) Police, therefore, have an

interest in knowing the limit of the curtilage. (135) After a police

search of the curtilage, courts are often faced with determining whether

the police stepped into or stayed out of the protected boundary. The

four factors from Dunn help frame this inquiry. But the curtilage

inquiry is about line-drawing, albeit imaginary, and so courts go

looking for lines. (136) As noted above, many American houses do not

have fence-lines, wall-lines, or hedge-lines, so courts occasionally use

mow-lines to help resolve the curtilage boundary question.



C. Mow-lines



Although the term "mow-line" is not within the pages of

Webster's or Black's Law Dictionary, the lines left in the

wake of a lawnmower are part of America's popular culture. (137)

Mowing patterns and striping have become commonplace on the turf of

American professional athletic fields and suburban lawns. (138)

Videogame manufacturers are incorporating patterned grass surfaces to

make the games look more realistic. (139) There is even a book

describing how to prepare the perfect grass-lawn canvas and inscribe patterns and lines on its surface. (140) In 2000, the touring

international art exhibition entitled The American Home Lawn: Surfaces

of Everyday Life included images of striped and patterned lawns. (141)

With the popularity of golf in America, (142) more and more people are

reading cut-lines in the grass--the divisions between the rough,

fairway, apron, and fringe for example. (143) Courts also appear to be

reading lines in the turf. Although only one opinion explicitly mentions

the term "mow line," (144) as the cases below illustrate, the

line separating a lawn from other unmanicured areas of a property, or

the cut-line separating a mowed lawn from an unmowed lawn, often is

being used to determine extent-of-curtilage questions.



1. Keep off the grass.



The following discussion analyzes cases where courts have

determined that the cartilage was not penetrated because the police

stayed off the mowed areas of a residential property. On this basis,

courts have held that there is no search, and therefore the drug

evidence found is admissible. Nearly all of the cases incorporating

mow-lines into the curtilage analysis are post-Dunn 1990s or 2000

decisions. (145) Courts vary in how they incorporate mow-lines into the

Dunn four-factor standard. In some cases, the mow-line is a factor in

the outcome, but the court does not pigeonhole the analysis into one of

the four Dunn factors. 146 In other cases, the mow-line discussion is

framed within either the second or third Dunn factor. (147) In Dunn, the

Court cautioned that the four factors should not be applied

mechanistically to produce a finely tuned formula to answer all

"extent-of-curtilage questions." (148) The Court said,

"Rather these factors are useful analytical tools only to the

degree that, in any given case, they 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." (149) As the

cases below illustrate, the mow-line weighs heavily on this

"centrally relevant consideration."



In a few cases, courts have used the mow-line as a stand-in for a

fence or enclosure (150) under Dunn's second factor--"whether

the area is included within an enclosure surrounding the home."

(151) In People v. Pittiglio, (152) an officer acting on a tip that

marijuana might be growing inside the defendant's house walked

through an "uncut" field and noticed plants growing in some of

the house's windows. The officer used his binoculars to confirm

that the plants were marijuana, while "at all times remaining off

the mowed area of the lawn." (153) The officer then obtained a

warrant, searched the residence, and found marijuana. The trial court

suppressed the drug evidence stating that the warrant was based on an

unconstitutional search. The court of appeals reversed and incorporated

the mow-line analysis into the second Dunn factor:





In applying these [Dunn] factors to the present case, we

find ... that the area from which [Officer] Vondra made his

observations was not part of the cartilage of defendants'

home.... Although defendants' home had no fence or other enclosure

surrounding it, it did have a mowed lawn. Vondra did not intrude

into this mowed area, but rather, observed the plants while

standing in a rough, overgrown field containing weeds and sumac.

We find that such an area was not "being used for intimate

activities of the home...." (154)

Here, the mowed lawn is considered an enclosure. When the police

keep off this enclosed area there is no overstepping of the curtilage

boundary.



In State v. Townsend, (155) West Virginia's Supreme Court of

Appeals also used the mow-line as a proxy for an enclosure. (156) In

this "reverse curtilage" case, (157) an officer searched the

defendant's house based on a valid warrant. After finding marijuana

in the house, the officer then searched a hog house--which was not

mentioned in the warrant and which was located approximately 200 feet

from the house--and found a box of marijuana. The defendant argued that

the hog house was outside the curtilage and therefore not covered by the

warrant, but the trial court denied the motion to suppress the drug

evidence. The court of appeals reversed, holding that the hog house was

not within the curtilage and therefore not covered by the warrant

allowing a search of the house. In its analysis, the court analogized

the mowed area to an enclosure:





Although the area was not fenced, the record suggests that the grass

in the area immediately surrounding the defendant's mansion house,

as well as surrounding other outbuildings, was mowed, whereas the

grass around the hog house itself was not mowed.... There was

nothing to suggest that the defendant in any way attempted to

surround it with the aura of privacy involved in a home and the

immediately surrounding area. (158)

State v. Todor (159) is another example of the mow-line being

incorporated within the Dunn second-factor analysis. In Todor, a police

helicopter pilot informed officers that he had spotted a single



marijuana plant growing in Todor's backyard and later informed

officers that he saw additional plants growing in an "overgrown area" behind the house. The police seized the plants before

obtaining a warrant. The trial court suppressed the single plant growing

in Todor's backyard because it was within the curtilage and the

police had seized it before obtaining a warrant. The court admitted the

additional 393 plants found in the "overgrown area," holding

that they were located in an "open field." Based in part on

the second factor of Dunn, the court of appeals decided that the

overgrown area was not "intimately tied to the house" and was

therefore distinguishable from the curtilage:





While Todor testified that the bathing pool itself was enclosed,

the record contains no evidence that the overgrown area was

segregated from the rest of the property so that it was "readily

identifiable as part and parcel of the house." To the contrary, the

area is clearly distinguishable from the mowed portions of Todor's

property. (160)

Mow-lines under the "enclosure" rubric often trump the

other curtilage factors. In United States v. Breza, (161) for example,

officers went within fifty feet of Breza's home located on a

ninety-two-acre farm when searching for marijuana. The court held that,

"[a]lthough the garden [where the marijuana was found] was

relatively close to Breza's house and Breza had chosen to live in

an isolated location, these factors are outweighed by the clear

demarcation of the vegetable garden from the landscaped portion of the

yard and the uses to which the garden was put." (162)



Even when mow-lines are analyzed under Dunn's second factor,

some decisions suggest that mow-lines alone may provide Oliver's

"clearly marked" curtilage boundary. For example, in State v.

Martwick, (163) during a warrantless search police officers in Wisconsin

took a leaf-slip sample from plants growing on the defendant's

property. Based on the sample, the police determined the plants were

marijuana, obtained a search warrant, and seized the drugs. The

defendant argued that the officers illegally entered the curtilage when

taking the sample and moved to suppress the evidence seized. The Supreme

Court of Wisconsin held that the police had not violated the

defendant's curtilage. (164) Although the defendant did not

"cultivate a traditional mowed lawn," (165) the court stated:

"It is significant that the marijuana plants did not stand in the

area of low-cut weeds and brush surrounding the house. Oliver noted that

the curtilage of most homes is clearly marked.... In this case, the

curtilage is clearly marked by the low-cut weeds and brush." (166)



Mow-lines have also been analyzed under the third Dunn

factor--"the nature of the uses to which the area is put."

(167) In these situations, courts have concluded that mowed areas

function as an extension of the house and are therefore included within

the curtilage. In the following cases, the police stayed off the grass.



In United States v. Groce, (168) an officer entered the area around

the defendant's home before obtaining a warrant. The officer

admitted having crossed over an electric fence before entering the area,

but the court stated that this fact was not dispositive. Instead, the

court looked to the fact that the officer "did not cross into any

area around the house that had been mowed." (169) The officer

"discovered the growing trays in one of the unmowed areas,"

and under Dunn's third factor, the area that the officer entered

"was unmowed and collecting refuse." (170)



Again, in State v. Campbell, (171) the appellant argued that the

area where officers found marijuana growing was within the curtilage of

his house. The court applied the Dunn factors and looked to the mow-line

in its third-factor analysis: "[The marijuana] was outside of the

cleared and mowed area of land used for activities associated with the

home." (172) As a result, the court held that the Fourth Amendment

had not been violated.



Finally, in Commonwealth v. Ferguson, (173) the court held that the

officers had not conducted an unreasonable search because marijuana

plants found by an officer were not within the curtilage of the house.

In making this determination, the court noted within its Dunn

third-factor analysis that "[a]ll of the suspected marijuana plants

were found beyond the mowed lawn next to the house." (174)



In some cases, even when the mow-line inquiry is included within

the Dunn framework, it appears to be operating as a separate rule. (175)

For example, in United States v. Sumner, (176) officers entered the

defendant's 240-acre property and found several marijuana plots.

The defendant filed a motion to suppress the marijuana claiming that the

officers trespassed on the curtilage of the property. Although the court

cited Dunn, it did not apply the four factors. The court stated,

"While the defendant's father testified that the family used

the entire 240 acre area, the court must conclude that only the

manicured area of approximately four or five acres constitutes the

curtilage." (177) Since the nearest plot of marijuana was sixty

yards away from the "manicured area," the court held that

there had been no search under the Fourth Amendment and denied the

defendant's motion to suppress.



2. On grass.



Unlike the preceding discussion, in the cases below, drug evidence

is suppressed because officers enter a mowed area, and the court holds

this to be a violation of the curtilage. Like the cases above, mow-lines

are usually discussed within the Dunn framework. However, given the

weight that mow-lines appear to have within the standard, a mow-line

rule has effectively displaced the curtilage test.



In United States v. Jenkins, (178) based on information obtained by

aerial surveillance, a team from Kentucky's Marijuana Strike/Task

Force seized materials used in the production of marijuana from

Jenkins' backyard without a warrant. The trial court concluded that

the defendant's backyard was an "open field" and denied

the motion to suppress. On review, the court of appeals held that the

backyard (179) was curtilage and held that the district court erred in

denying the motion. (180) In distinguishing open fields from curtilage

under Dunn's second factor, the court of appeals cited

Oliver's "clearly marked" test, stating:

"Defendants' backyard is clearly demarked as a continuation of

the home itself. No one could mistake the yard, with its neatly mowed

lawn and garden arrangements, for the unkept open fields composing the

remaining portion of defendants' rural property." (181) For

the Jenkins court, a mowed lawn is a signal, like a fence, that an area

is private. (182)



State v. Bayless (183) also held that a mowed area is part of a

house's enclosure. (184) An officer, acting on a tip that marijuana

was growing in Bayless' garden, went to the back of the house

without a warrant and observed four marijuana plants growing among

tomato and corn plants. Bayless argued on appeal that the marijuana

plants seized were within the curtilage. The court of appeals agreed and

held that the plants should have been excluded, noting under the second

Dunn factor "that the area between the house and the garden was

mowed lawn and beyond the garden was a field of tall weeds." (185)



Finally, in United States v. Reilly, (186) although the court used

the Dunn framework to organize its curtilage inquiry, it based its

conclusion almost exclusively on the fact that officers had discovered

marijuana plants while on the defendant's lawn. In the court's

findings of fact, it discussed at great length the defendant's

efforts to establish the lawn on his eleven-acre property, which had

once been a farm field--Reilly tilled the soil and planted the seed,

rolled the lawn, and made sure that it was mowed with both a push and

riding mower. (187) It was from this "groomed" (188) area that

the officers observed marijuana growing in Reilly's cottage and in

a wooded area.



Based on the Dunn factors alone, the court could have concluded

that the lawn was not protected curtilage. Under the first Dunn factor,

the court acknowledged that the area where the officers discovered the

plants was approximately 375 feet from the residence. (189) The court

also observed that factor two had not been satisfied: "[T]he court

does not find that any fence or natural structure can be said to clearly

mark the limits of the curtilage between the main residence and the

wooded area and the cottage." (190) Similarly, the court noted that

factor three, the "use" factor, and factor four, "the

steps taken to prevent observation," had not been clearly

satisfied. (191) At bottom, the court based its conclusion on a mow-line

rule--the area was curtilage because it was a "well-groomed"

lawn:





In summary, the court concludes that the officers violated

defendant's Fourth Amendment rights when they searched his property

without a warrant on September 6, 1991. This conclusion is mainly

premised on the layout of defendant's property at the time of the

warrantless search. Unlike the property in Dunn, defendant's

property was not subdivided by fencing. The grounds were groomed

and well maintained, and although boundary fencing was down at

several locations, it should have been readily apparent to an

observer that the groomed area of the property was private

.... Viewed as a whole, an observer could reasonably conclude

that the area in question "harbors the intimate activity associated

with the sanctity of a man's home and the privacies of life."



In short, the officers had no right to approach the cottage or

wooded area without a warrant, because the nature of the grounds

made it apparent that it was part of the curtilage of defendant's

home. (192)

III. IS LAWN PRIVACY REASONABLE?



As Part 1.E suggested, although courts sometimes look to mow-lines

within the Dunn standard to guide the curtilage inquiry, the Supreme

Court may be moving away from Dunn's curtilage factors and turning

to a Katz reasonableness framework. The question here is whether an

expectation of privacy in the lawn is "one that society is prepared

to recognize as reasonable." (193) This Part first examines the

expectation of privacy by looking at the history of the residential lawn

and then examines curtilage in today's American urban and suburban

contexts.



A. Brief History of Lawn Privacy



The cases discussed in Part II indicate there is a proclivity by

some courts to view the residential lawn as private under the Fourth

Amendment. A well-manicured grass carpet may be enough to establish the

curtilage. (194) As this brief history suggests, however, privacy in the

lawn may not be commercial construction so clear-cut. (195)



Lawns as they are thought of today were uncommon in America before

the mid-nineteenth century. (196) In general, towns were the basis for

America's development. (197) The early settlers generally favored

town life because it offered them security and was a continuation of a

living system with which they were familiar. (198) Although no clear

settlement pattern developed in the New World, by the time of

America's founding, (199) a "typical" house was set on a

tiny lot in a densely settled neighborhood. (200) As towns grew into

urban centers, very little space surrounded the house. (201) Front yards

and side yards were almost nonexistent. (202) Backyards were usually

less than twenty-five feet deep, "and the little space that was not

built upon was typically rancid, disreputable, and overrun by

rodents." (203) The backyard space was private insofar as "a

social occasion there would have been unthinkable." (204)



Fast forwarding to the mid-nineteenth century, the appeal of

"jammed-together" houses was waning and the idea of suburban

living was on the rise. (205) While there are many explanations for the

rise of the suburban environment--a concern for family health, a

reaction to urban congestion, and the growth of the commuter railroad

(206)--it is clear the growth of the suburbs encouraged a new vision for

the house that included the lawn. This "new" house, as

illustrated in the popular pattern books and architectural treatises of

this era, sat in an open rural setting surrounded by a grass lawn. (207)



Some have argued that the suburban house reflected a desire for a

more secluded and private home life. (208) Even if this is so, it is

anything but clear that the lawn surrounding the house itself was

private. Residents planted lawns for public view. The favored aesthetic

device of this period was the "borrowed view"--designing

landscapes without enclosures so a spectator could enjoy a long vista

beyond his own property. For this reason, fences and walls were highly

contested in the suburban image. (209) Generally, grass lawns were open

and exposed, rather than enclosed for privacy. (210)



By the late nineteenth century, designers had taken the idea of the

individual house surrounded by a lawn and aggregated it into suburban

residential communities such as Llewellyn Park, New Jersey. (211) In

these early developments, where the houses sat within a park-like

setting, the lawn was considered a communal space. (212) These early

residential developments served as precursors to the twentieth-century

suburbs and lawns. (213)



It is questionable that the lawn in the twentieth century was

considered private. (214) In the mid-twentieth century, in Levittown,

one of America's most emulated housing communities, a former

resident described the total openness of the lawns: "[W]e used to

talk about ... how there were no hedges ... in the old days, no fences,

no locked doors. Everyone's home was your home; we all walked back

and forth like it was one big yard." (215) Today, it is also

unclear whether the lawn--in the suburban context at least--is private.

(216)



B. Curtilage's Antiurban Bias



The impulse behind the courts' protection of the manicured

lawn's privacy may lie in a romanticized, bucolic vision of the

American house. (217) What has followed from this ideal is that

urbanites seem to have less curtilage protection than those who live in

rural environs.



For example, the defendant in United States v. Redmon (218) lived

in an eight-unit townhouse and put his garbage out for collection next

to his unit's garage door. A "constitutional garbage

issue" arose when officers without search warrants removed the

contents of Redmon's garbage cans while the garbage cans were

sitting just outside his garage on the common driveway awaiting

collection. (219) The officers found evidence of drugs in the garbage,

and Redmon argued that the search violated the Fourth Amendment. The

majority rejected the application of the curtilage doctrine in this

context and decided the case under a reasonableness framework--holding

that Redmon's expectation of privacy in the trash was unreasonable.

(220) In dissent, Judge Posner opined that the court should have applied

the curtilage doctrine. (221) He emphasized that under the

majority's approach, urban dwellings have no curtilage (222) and

had the following to say about context and privacy expectations:





Of course it is simple realism that people who live in rural

areas or have wealth will have more physical privacy than people who

live in cities or working-class suburbs, and that therefore they

will derive more protection from the Fourth Amendment. That does not

trouble me; the wealthy have advantages in every department of life.

What does bother me is the idea that the police have carte blanche

to invade the property rights of people who by virtue of living on

small lots place their garbage cans near their house. (223)

Other courts have made general observations about the expectation

of privacy in rural versus urban contexts. In United States v.

Broadhurst, (224) the court held that officers violated the

defendant's Fourth Amendment rights by flying, without a warrant,

in circles around the defendant's greenhouse in an effort to

determine its contents. The court, in analyzing the aerial surveillance

under the Fourth Amendment, paid particular attention to the rural

setting of Broadhurst's property: "Furthermore, it is at least

arguable that a defendant's reasonable expectation of privacy is

heightened rather than diminished as a result of locating his business

in a rural, rather than an urban area. After all, privacy is a principal

reason 'to move to the country.'" (225) The court in

United States v. Ramapuram (226) also commented on how privacy

expectations differ in the country from the city: "Unlike an urban

dweller, whose activities and effects are more likely to be viewed by

the casual passerby, the rural dweller reasonably can expect more

privacy concerning his activities and his effects if his premises are

far removed from the public road." (227) Finally, in United States

v. Cruz Pagan, (228) the court commented:





In a modern urban multi-family 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 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. (229)

The notion that there is a reduced expectation of urban privacy

occasionally injects itself into the curtilage doctrine through the Dunn

factors. (230) Within Dunn's first

factor--"proximity"---courts have noted that in terms of

distance, urban curtilage is "exponentially" smaller than

rural curtilage. (231) Conversely, courts have held that the zone of

curtilage as a general matter is larger in a rural or

"outdoor" setting. (232)



Courts usually do not discuss the character of the environment

within Dunn factor two ("enclosure") or three

("use"), (233) but it is discussed within the fourth factor.

For example, in Jenkins, (234) under the fourth factor the court stated,

"It is also important to remember that defendants live in a remote

and sparsely populated rural area where they would have had no

particular reason to believe that they needed to construct a high

impenetrable fence around the backyard in order to ensure their

privacy." (235)



C. 'Burb Curtilage



Suburbia is neither the country, nor the city so it is hard to know

whether curtilage's prorural bent carries into the suburban context

and what kind of expectation of privacy is reasonable. Suburban housing

developments have continued to expand in the twenty-first century, (236)

and, as a result, courts are likely to face increasing

extent-of-curtilage questions as applied to the suburbs. (237)



In the suburban front lawn at least, an expectation of privacy is

questionable. Most writers on this subject view the front yard as

public. (238) The question of the expectation of privacy in the other

mowed areas around the house is more difficult. (239) One critic at

least has commented on the lifelessness of the mowed areas in suburbia:

"'[T]he mowed lawns beyond my yard appear so naked, bleak and

cruel ... absent of all life.'" (240) If curtilage protects

"'the privacies of life,'" (241) a question for the

courts as they move forward is whether a privacy expectation in mowed

lawns of the suburbs is one that they think society is prepared to honor

as reasonable.



CONCLUSION



This Note set out to investigate the developing definition of

curtilage. Part I traced the expansion of the common law understanding

of curtilage as applied to the Fourth Amendment. Originally, curtilage

protected only structures surrounding the house. The "modern

curtilage" as formulated in Oliver expanded this idea by covering

the ground space between structures. The curtilage then went vertical in

the context of the aerial surveillance cases. Part I closed with a

question--whether curtilage will continue in the face of the Supreme

Court's continued reliance on Katz for Fourth Amendment questions.



Part II examined the difficulties following the importation of

England's curtilage doctrine into the American context. The

increase in domestic marijuana production has highlighted the difficulty

of finding the curtilage boundary in America. As a result, under Dunn

courts have to look for clues in the landscape to resolve

extent-of-curtilage questions. Courts often look to mow-lines for

answers.



Part III questioned whether lawn privacy is one that society is

prepared to recognize as reasonable. It looked briefly at the history of

the lawn as a way to question whether the grass surrounding a house is

private. Given the emphasis on lawns in the curtilage doctrine, Part III

also examined the implications of an antiurban bias toward the curtilage

and ended by briefly considering suburban curtilage. Although the Note

posed as many questions as it answered, at least one thing is clear for

curtilage--for privacy's sake, cut the grass.



(1.) State v. Chaussee, 866 P.2d 643, 646 n.3 (Wash. Ct. App. 1994)

(alteration in original) (quoting the trial court).



(2.) See TERENCE RILEY, THE UN-PRIVATE HOUSE (1999).



(3.) MAGGIE JACKSON, WHAT'S HAPPENING TO HOME?: BALANCING

WORK, LIFE, AND REFUGE IN THE INFORMATION AGE 39 (2002) (quoting Terence

Riley).



(4.) In the recent past, the household and public realms were

"'distinct, separate entities.'" RILEY, supra note

2, at 14 (quoting Hannah Arendt). But today, we may only

"'hope of rediscovering, at least in our own minds, the line

between private life and public exposure.'" Id. (quoting

Hannah Arendt). Riley uses Frank Lloyd Wright's A Home in a Prairie

Town--a design published in the Ladies' Home Journal's

February 1901 issue--as an example of "how refined the notion of

privacy in the private house had become by the twentieth century."

Id. Wright's design afforded "absolute privacy" from the

public and the other houses on the block, Id.



(5.) The exclusionary rule requires the suppression of evidence obtained in violation of a defendant's constitutional rights. See

Mapp v. Ohio, 367 U.S. 643 (1961) (applying the exclusionary rule to the

states). See generally Christopher Slobogin, Why Liberals Should Chuck

the Exclusionary Rule, 1999 U. ILL. L. REV. 363 (examining the theories

supporting the exclusionary rule and proposing that a damages regime

would be more effective than the rule as a means to ensure police and

courts abide by the Fourth Amendment).



(6.) See, e.g., United States v. Arboleda, 633 F.2d 985,992 (2d

Cir. 1980) ("In its recent decision in Payton v. New York, the

Supreme Court identified the line at which the requirement for an arrest

warrant takes hold as 'the entrance to the house' and the

'threshold.'" (citation omitted) (quoting United States

v. Santana, 427 U.S. 38, 42 (1976))).



(7.) 466 U.S. 170 (1984).



(8.) See United States v. Redmon, 138 F.3d 1109, 1112 (7th Cir.

1998) (en banc) (stating that the curtilage "is an imaginary



boundary line between privacy and accessibility to the public").



(9.) See infra note 69 and accompanying text.



(10.) See Oliver, 466 U.S. at 180 (defining curtilage as "the

land immediately surrounding and associated with the home").



(11.) Id. at 182 n.12.



(12.) 480 U.S. 294 (1987); see also United States v. Reilly, 76

F.3d 1271, 1275 (2d Cir. 1996) ("Hester and Olmstead adopted the

concept of curtilage, but its contours remained unclear until the

Supreme Court's decision in United States v. Dunn." (citation

omitted)). Courts have created shorthand headings for the four factors,

such as: (1) proximity, (2) enclosure, (3) use, and (4) visibility.

United States v. Johnson, 256 F.3d 895, 901-03 (9th Cir. 2001).



(13.) Dunn, 480 U.S. at 301.



(14.) Id.



(15.) See infra note 125 and accompanying text.



(16.) See infra Part II.



(17.) Oliver v. United States, 466 U.S. 170, 180 (1984) (citation

and internal quotation marks omitted).



(18.) See infra note 23 and accompanying text.



(19.) See Mapp v. Ohio, 367 U.S. 643 (1961); see also supra note 5.



(20.) 533 U.S. 27 (2001).



(21.) 389 U.S. 347 (1967).



(22.) Since the Katz decision, the Court has followed the two-part

test outlined by Justice Harlan: "[F]irst that a person have

exhibited an actual (subjective) expectation of privacy and, second,

that the expectation be one that society is prepared to recognize as

'reasonable.'" Id. at 361 (Harlan, J., concurring).



(23.) See ELLEN ALDERMAN & CAROLINE KENNEDY, THE RIGHT TO

PRIVACY, at xiv (1995) ("We began our research with the same gut

reaction that most people have: there is less privacy than there used to

be. As we immersed ourselves further in the topic, reading privacy cases

and talking with people who had tried (and often failed) to vindicate

their loss of privacy through the legal system, we concluded that things

were worse than we originally thought."); JACKSON, supra note 3, at

43 ("Today, it's almost impossible to pick up a newspaper

without seeing an article about a new threat to Americans'

privacy."); JEFFREY ROSEN, THE UNWANTED GAZE: THE DESTRUCTION OF

PRIVACY IN AMERICA 3, 12, 27 (2000) (stating that "changes in law

as well as changes in technology are blurting the boundaries between

home and work, reducing the backstage areas in which we can retreat from

public view," discussing "how dramatically privacy protections

have eroded," and "consider[ing] ways of reconstructing some

of the zones of privacy that law and technology have been allowed to

invade"); Kathleen Stewart, Nostalgia--A Polemic, 3 CULTURAL

ANTHROPOLOGY 227, 231 (1988) ("There is no clear 'inside'

or 'outside' anymore, no private and public spheres of

life."). But see Marilyn Gardner, What's Happening to the

American Home?, CHRISTIAN SCI. MONITOR, July 24, 2002, at 15, available

at http://www.csmonitor.com/2002/0724/p15s02-lihc.html ("Size of

new US houses has been increasing 500 square feet every 20 years, while

the average family size has shrunk from 3.4 in 1950 to 2.6 in

2000.") (last visited Feb. 5, 2004).



(24.) See Oliver v. United States, 466 U.S. 170, 180 (1984)

("At common law, the curtilage is the area to which extends the

intimate activities associated with the sanctity of a man's home

and the privacies of life, and therefore has been considered part of the

home itself for Fourth Amendment purposes." (citation and internal

quotation marks omitted)); Eric Dean Bender, The Fourth Amendment in the

Age of Aerial Surveillance: Curtains for the Curtilage?, 60 N.Y.U.L.

REV. 725,727 (1985) (reviewing "the historical background of the

definition of 'house' and its curtilage at common law"

and "conclud[ing] that for fourth amendment purposes

'house' includes its curtilage, and that the curtilage is

therefore constitutionally protected from unreasonable searches and

seizures").



(25.) For the continued relevance of this analysis, see Hart v.

Myers, 183 F. Supp. 2d 512, 521 (D. Conn. 2002) (analyzing "whether

the [small wooden hunting] structure on the property was a home, from

which curtilage could extend"), aff'd, 50 Fed. Appx. 45 (2d

Cir. 2002). The court determined that the structure was a home based on

its function: "[T]here is evidence from which a reasonable juror could find that plaintiffs used the structure for sleeping as well as

other privacies of the home." 183 F. Supp. 2d at 522; see also

infra note 53 and accompanying text (discussing a structure's

function as a way to decide "house" questions).



(26.) 389 U.S. 347 (1967).



(27.) Id. at 351.



(28.) See 1 WAYNE R. LAFAVE, THE FOURTH AMENDMENT 465 ("[E]ven

under the Katz justified-expectation-of-privacy approach, it is still

useful to view residential premises as a place especially protected

against unreasonable police intrusion."). Justice Harlan in Katz

acknowledged that "a man's home is, for most purposes, a place

where he expects privacy." Katz, 389 U.S. at 361 (Harlan, J.,

concurring).



(29.) See Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986)

("We conclude that the open areas of an industrial plant complex

with numerous plant structures spread over an area of 2,000 acres are

not analogous to the 'curtilage' of a dwelling for purposes of

aerial surveillance."). But see United States v. Swart, 679 F.2d

698, 702 (7th Cir. 1982) ("Therefore, the cars may have been within

the curtilage of the business buildings.").



(30.) See BEATRIZ COLOMINA, PRWACY AND PUBLICITY: ARCHITECTURE AS

MASS MEDIA 7 (1994) (discussing "'Le Corbusier's basic

definition of the primordial idea of the house--'The house is a

shelter, an enclosed space, which affords protection against cold, heat,

and outside observation.'").



(31.) The Fourth Amendment states:





The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be

seized.

U.S. CONST. amend. IV.



(32.) Although privacy has many different meanings, Jeffrey Rosen

has suggested that private spaces are analogous to backstage areas,

where "individuals, like actors in a theater ... can let down their

public masks, collect themselves, and relieve the tensions that are an

inevitable part of public performance." ROSEN, supra note 23, at

12.



(33.) See Payton v. New York, 445 U.S. 573, 585 (1980)

("[P]hysical entry of the home is the chief evil against which the

wording of the Fourth Amendment is directed." (citation omitted)).



(34.) 471 U.S. 386 (1985).



(35.) Other Supreme Court cases have extended Fourth Amendment

protection beyond the house to spaces such as hotel rooms. But these

cases have not explicitly compared spaces like hotel rooms with

"houses." See Stoner v. California, 376 U.S. 483, 490 (1964)

("No less than a tenant of a house, or the occupant of a room in a

boarding house, a guest in a hotel room is entitled to constitutional

protection against unreasonable searches and seizures." (citations

omitted)); United States v. Jeffers, 342 U.S. 48 (1951) (holding that a

seizure of drugs in a hotel room without a warrant violated the Fourth

Amendment).



(36.) See People v. Carney, 668 P.2d 807, 810 (Cal. 1983)

("The court in Carroll premised its analysis on the notion that

there is a constitutional difference between houses and cars. The

underlying rationale for this distinction was the inherent mobility of

automobiles."), rev'd sub nom., California v. Carney, 471 U.S.

386 (1985); see also Carroll v. United States, 267 U.S. 132 (1925)

(announcing the automobile exception).



(37.) Carney, 668 P.2d at 812.



(38.) Id.



(39.) Id. at 813.



(40.) Id.



(41.) Id. at 814.



(42.) California v. Carney, 471 U.S. 386, 390 (1985) (relying on

Carroll for the distinction between stationary structures and vehicles

that can be "quickly moved").



(43.) Id. at 393.



(44.) Over time, the Court might have to elaborate on this

statement if more people choose to live in mobile homes. See Robert

Kronenburg, Preface to MOBILE: THE ART OF PORTABLE ARCHITECTURE

(Jennifer Siegal ed., 2002) ("Now it seems that a return to mobile

living is imminent for many more of us. In North America, it is a common

phenomenon for retired people, released from the burden of a

lifetime's work, to sell the house, buy a trailer home, and become

'snowbirds.' Moving between the fixed homes of their children

and grandchildren, they follow the clement weather from north to

south....").



(45.) Carney, 471 U.S. at 406 (Stevens, J., dissenting).



(46.) Id.



(47.) Id.



(48.) Id.



(49.) Id. at 393.



(50.) Id. at 407 (Stevens, J., dissenting).



(51.) See Kelley v. State, 245 S.E.2d 872, 874-75 (Ga. Ct. App.

1978) ("Though a tent may not provide the sturdy protection against

the winds, the rains, the heat, and the cold, which a customary house

provides, the tent-dweller is no less protected from unreasonable

government intrusions merely because his dwelling has walls of canvas

rather than walls of stone."). For a Fourth Amendment analysis of

camping structures, see Robert J. Leibovich, Privacy Goes Camping:

Staking a Claim on the Fourth Amendment, 26 U. MEM. L. REV. 293 (1995).



(52.) See United States v. Ruckman, 806 F.2d 1471 (10th Cir. 1986)

(rejecting Ruckman's claim that the natural cave on public lands

that he was inhabiting came under the ambit of the Fourth

Amendment's prohibition of unreasonable searches of

"houses" because Ruckman had no legal right to occupy the land

and therefore had no reasonable expectation of privacy in the cave);

Care v. United States, 231 F.2d 22, 25 (10th Cir. 1956) ("The cave

in the instant case was in a plowed field, across a road and more than a

long city block from the home. It gave no evidence of ever having been

used as a refuge from storms or for normal uses of a cave adjacent to a

home such as the storage of foods or dairy products.").



(53.) See Kelley, 245 S.E.2d at 875 ("A dwelling place,

whether flimsy or firm, permanent or transient, is its inhabitant's

unquestionable zone of privacy under the Fourth Amendment."); see

also Care, 231 F.2d at 25; Hart v. Myers, 183 F. Supp. 2d 512, 522 (D.

Conn. 2002), aff'd, 50 Fed. Appx. 45 (2d Cir. 2002); Commonwealth

v. Peterson, 596 A.2d 172, 177 (Pa. Super. Ct. 1991) ("[I]t is not

the superficial characteristics of a structure, its walls, windows,

doors, or even furnishings, which give it the constitutional cloak

accorded a home. Rather, it is the habitation of the structure and its

use as a residence which form the purpose of the constitutional

protection."), aff'd, 636 A.2d 615 (Pa. 1993); cf.

Commonwealth v. Cameron, 561 A.2d 783, 787 (Pa. Super. Ct. 1989)

("A television, a couch, and a platter of food are insufficient

attributes of a home....").



(54.) See United States v. Jenkins, 124 F.3d 768, 772 (6th Cir.

1997) ("[T]he curtilage is considered part of the house itself for

Fourth Amendment purposes.") (citing Oliver v. United States, 466

U.S. 170, 180 (1984)); Fullbright v. United States, 392 F.2d 432, 435

(10th Cir. 1968) ("The word 'houses' in the Fourth

Amendment has been extended by the courts to include the

cartilage."); Kelley, 245 S.E.2d at 875 (holding that once the tent

was determined to be a dwelling place, it was surrounded by curtilage:

"[T]here can be no question but that the clearing and garden

adjacent to these tents was in the curtilage."). Curtilage is

considered under the Fourth Amendment's protection of

"houses" not "effects." Oliver, 466 U.S. at 186 n.l

(Marshall, J., dissenting) ("The Court informs us that the Framers

would have understood the term 'effects' to encompass only

personal property.").



(55.) See infra note 125 and accompanying text.



(56.) See Fullbright, 392 F.2d at 435 n.7 ("The term

[curtilage] was of special importance at common law since the breaking

and entering of a building outside the curtilage did not constitute

burglary."); Wright v. State, 77 S.E. 657, 658 (Ga. Ct. App. 1913)

("Under the common law, burglary could only be committed in a

dwelling-house; and for this reason the outhouses which were within the

curtilage were considered a part of the dwelling-house."); Hutchins

v. State, 59 S.E. 848, 849 (Ga. Ct. App. 1907) ("A corn-crib,

unless it be within the cuttilage, is not the subject-matter of

burglary."); C.S. Parnell, Annotation, Burglary: Outbuildings or

the Like as Part of "Dwelling House ", 43 A.L.R.2d 831 (1955).



(57.) 4 WILLIAM BLACKSTONE, COMMENTARIES *225 (emphasis added); see

also Bender, supra note 24, at 732 & n.33 (defining

"homestall" as "farm-yard").



(58.) See Parnell, supra note 56, at 834 ("This principle was

applied quite literally in England ... it being necessary that the

outbuilding be physically inclosed by the same wall or fence which

inclosed the dwelling before the structure could be considered part or

parcel of the dwelling so that one breaking into it with the necessary

felonious intent would be punishable for the offense of

burglary.").



(59.)





[W]here properties were so inclosed, there was no difficulty in

applying the [curtilage as boundary] theory. However, it became

evident in the American jurisdictions that such a literal conception

would work much mischief, since the American homestead was not

usually walled for purposes of protection. The theory then began to

gain recognition that an outbuilding could be within the curtilage

although no wall or fence inclose the home and its appurtenant

outbuildings."

Id. As discussed in Part II, infra, the difficulty of establishing

the boundary of the curtilage in America has led courts to search for

other boundary markers like mow-lines.



(60.) 255 U.S. 313 (1921).



(61.) Id. at 314 (emphasis added). For another pre-Katz case

suggesting that the Fourth Amendment applies to buildings in the

curtilage, see Care v. United States, 231 F.2d 22, 25 (10th Cir. 1956).

The protection of the Fourth Amendment "does, however, apply to

buildings within the curtilage which may include a garage, a barn, a

smokehouse, a chicken house or similar property." Id.



(62.) Amos, 255 U.S. at 317.



(63.) True, burglary is a breaking and entering, so logically under

burglary law going onto another person's lawn would not subject a

person to a burglary offense. However, security of the yard at the time

Amos was decided was not thought to be of such importance that it was

given special protection.



(64.) The curtilage can also work in "reverse"--allowing

searches. For example, if a warrant only expressly allows for a search

of a house, courts have held that curtilage is also covered by the

warrant. See United States v. Gorman, 104 F.3d 272, 275 (9th Cir. 1996)

("Additionally, several state courts have held that the Fourth

Amendment is not violated by a search of the grounds or outbuildings

within a residence's curtilage where a warrant authorizes a search

of the residence."); State v. Vicars, 299 N.W.2d 421,425 (Neb.

1980) (warrant authorizing search of defendant's residence

permitted search of a calf shed 100 feet away from the house on the

opposite side of a chain link fence); State v. Trapper, 269 S.E.2d 680,

684 (N.C. Ct. App. 1980) (warrant authorizing search of house trailer

permitted search of a tool shed thirty feet away); State v. Stewart, 274

A.2d 500, 502 (Vt. 1971) (warrant authorizing search of house permitted

search of a tree in the curtilage).



(65.) Cf. infra fig. 3.



(66.) 466 U.S. 170 (1984).



(67.) It is true that the space of the curtilage, as distinct from

structures, was protected in the exception to the duty to retreat. See

Madry v. State, 78 So. 866, 868 (Ala. 1918) ("The rule is of

universal acceptance that a person assailed is not bound to retreat from

his own dwelling to avoid killing his assailant, even though a retreat

could be safely made. And this doctrine is applied to the curtilage, or

such space as is customarily occupied by the dwelling house and out

buildings appurtenant thereto."); see also United States v.

Gilliam, 26 F. Cas. 1319 (D.D.C. 1854) (No. 15,205a) (considering the

extent of curtilage with regard to a goose house); L.S. Rogers,

Annotation, Homicide: Extent of Premises Which May Be Defended Without

Retreat Under Right of Self-Defense, 52 A.L.R.2d 1458 (1957). But the

curtilage's lineage in the Fourth Amendment context is connected

with burglary law through Blackstone. See infra text accompanying notes

82-84.



(68.) The Supreme Court cases between Amos and Oliver mentioning

curtilage in the Fourth Amendment context suggest that only structures

are protected by the Amendment. See Olmstead v. United States, 277 U.S.

438, 466 (1928) ("[There is no Fourth Amendment violation] unless

there has been an official search and seizure of his person, or such a

seizure of his papers or his tangible material effects, or an actual

physical invasion of his house 'or curtilage' for the purpose

of making a seizure."); Scher v. United States, 305 U.S. 251,255

(1938) (holding that a warrantless search of an automobile in a garage

within the curtilage did not violate the Fourth Amendment because the

officers closely following the car could have properly searched the car

before it passed into the open garage); Goldman v. United States, 316

U.S. 129, 141 n.8 (1942) (Murphy, J., dissenting) (citing Olmstead); Poe

v. Ullman, 367 U.S. 497, 551 (1961) (Harlan, J., dissenting) ("[I]f

the physical curtilage of the home is protected, it is surely as a

result of solicitude to protect the privacies of the life

within."); United States v. White, 401 U.S. 745, 748 (1971) (citing

Olmstead); Coolidge v. New Hampshire, 403 U.S. 443, 459 n.17 (1971)

(citing Scher); Trapper v. North Carolina, 451 U.S. 997, 999 (1981)

(noting that the warrant allowed the search of the "Lombardo house

and curtilage, including a metal storage building").



(69.) Oliver's curtilage is modern in two ways. First, modern

simply means "new" in the sense that the Court's

definition of curtilage was different from the common law doctrine that

only protected structures. If the common law protected

"enclosed" spaces in structures surrounding the home, modern

curtilage protects the void spaces--"the outdoor areas or spaces

between structures and buildings." Dow Chem. Co. v. United States,

476 U.S. 227, 236 (1986). In the architecture profession, this

distinction is articulated as the difference between "figural"

or enclosed spaces, and the modern conception of space as open or

"free." See Adi Shamir Zion, Introduction to OPEN HOUSE:

UNBOUND SPACE AND THE MODERN DWELLING 6, 11 (Dung Ngo ed., 2002)

(discussing the use of the "free plan" in the modern house);

see also Michael Graves, A Case for Figurative Architecture, in MICHAEL

GRAVES BUILDINGS AND PROJECTS 1966-1981, at 11 (Karen Vogel Wheeler,

Peter Amen & Ted Bickford eds., 1982). Second, modern means

post-Katz.



(70.) The modern definition of curtilage as including the

"yard" or "lawn" has gained popular acceptance. See

ALDERMAN &, KENNEDY, supra note 23, at 25 ("[T]he law even

recognizes a certain zone of privacy around the home that we can

reasonably expect to reserve for ourselves. That space, along with our

house, is protected by the Fourth Amendment. Under the law, this area is

known as the 'curtilage.' To most of us, it is known as our

yard.").



(71.) Note that under this doctrine, a trespass is not the same as

entry into the curtilage. See Oliver, 466 U.S. at 180 n. 15 ("[T]he

law of trespass confers protections from intrusion by others far broader

then those required by Fourth Amendment interests.").



(72.) See United States v. Karo, 468 U.S. 705, 715 (1984)

(excluding evidence and stating that an unreasonable search occurs if

"without a warrant, the Government surreptitiously employs an

electronic device to obtain information that it could not have obtained

by observation from outside the curtilage of the house"); see also

supra note 5.



(73.) Hester v. United States, 265 U.S. 57, 59 (1924).



(74.) Two cases, No. 82-15 and No. 82-1273, were consolidated.

Oliver, 466 U.S. at 170.



(75.) See Declan McCullagh, Privacy a Victim of the Drug War,

WIRED, Dec. 11, 2000, available at

http://www.wired.com/news/politics/0,1283,40532,00.html (last visited

Feb. 25, 2004); Steven Duke, The Drug War on the Constitution, at

http://www.cato.org/realaudio/drugwar/papers/duke.html (last visited

Feb. 25, 2004).



(76.) See Schaffer Library of Drug Policy, Federal Court Decisions

on Drugs by Decade: 1980, at

http://www.druglibrary.org/schaffer/legal/legal1980.htm (last visited

Nov. 5, 2003).



(77.) These facts relate to case No. 82-15. See Oliver, 466 U.S. at

173-74.



(78.) Hester, 265 U.S. at 59 ("[T]he special protection

accorded by the Fourth Amendment to the people in their 'persons,

houses, papers, and effects,' is not extended to the open

fields.").



(79.) Oliver, 466 U.S. at 184.



(80.) See id at 180 n. 11.



(81.) See supra Part I.B.



(82.) 265 U.S. 57 (1924).



(83.) 116 U.S. 616 (1886).



(84.) Oliver, 466 U.S. at 180 (citations omitted). The way this

sentence is drafted, with "curtilage" in quotation marks,

makes it appear that the Hester opinion distinguished between open

fields and curtilage. In fact, the Hester opinion makes no mention of

curtilage. See United States v. Reilly, 76 F.3d 1271, 1275 (2d Cir.

1996) (discussing how Blackstone's distinction between curtilage

and open fields for the common law of burglary "found its way into

American jurisprudence through an opinion by Justice Holmes, who held

that 'the special protection accorded by the Fourth Amendment to

the people in their persons, houses, papers and effects is not extended

to the open fields.'" (quoting Hester, 265 U.S. at 59)).



(85.) 116 U.S. at 630.



(86.) Oliver, 466 U.S. at 180 (quoting Boyd, 116 U.S. at 630).



(87.) Id.



(88.) In United States v. Karo, the first Supreme Court curtilage

case following Oliver, the Court again suggested that the curtilage was

an outdoor space, not just a structure. 468 U.S. 705, 715 (1984)

("For purposes of the [Fourth] Amendment, the result is the same

where, without a warrant, the Government surreptitiously employs an

electronic device to obtain information that it could not have obtained

by observation outside the curtilage."). Similarly, in Dow Chemical

Co. v. United States, the third case after Oliver mentioning curtilage,

the Court explicitly stated, "The curtilage area immediately

surrounding a private house has long been given protection as a place

where the occupants have a reasonable and legitimate expectation of

privacy that society is prepared to accept." 476 U.S. 227, 235

(1986) (rejecting "industrial curtilage"). However, the only

authority the Court cited in support of the longstanding history of this

modern notion of curtilage was California v. Ciraolo, a case decided by

the Supreme Court on the same day it decided Dow Chemical. See

California v. Ciraolo, 476 U.S. 207, 214 n.3 (1986); see also infra Part

I.D. Dow Chemical clearly established the modern definition of curtilage

as protecting more than just structures; it "reach[ed] the outdoor

areas or spaces between structures." 476 U.S. at 236.



(89.) The modern definition of curtilage is present in

"reverse curtilage" cases. See e.g., United States v. Gorman,

104 F.3d 272 (9th Cir. 1996) (holding that a warrant expressly allowing

the search of a bus-residence implicitly allows officers to search the

grounds of the curtilage around the residence); supra note 64 and

accompanying text.



(90.) 466 U.S. at 182 n.12.



(91.) 480 U.S. 294 (1987).



(92.) See supra note 14 and accompanying text. The Court in Dunn

rejected a bright-line rule for curtilage: "We decline the

Government's invitation to adopt a 'bright-line-rule'

that 'the curtilage should extend no farther than the nearest fence

surrounding a fenced house.'" Dunn, 480 U.S. at 301 n.4; see

also infra Part II (discussing curtilage rules).



(93.) A year after Dunn, the Court decided that trash left on the

street for collection was not covered by the Fourth Amendment. See

California v. Greenwood, 486 U.S. 35 (1988).



(94.) See Krause v. Penny, 837 F.2d 595,597 (2d Cir. 1988) (holding

that driveways that are "readily accessible to visitors are not

entitled to the same degree of Fourth Amendment protection as are the

interiors of defendants' houses"); Lorenzana v. Superior

Court, 511 P.2d 33, 35 (Cal. 1973) ("A sidewalk, pathway, common

entrance or similar passageway offers an implied permission to the

public to enter which necessarily negates any reasonable expectation of

privacy in regard to observations made there."); see also infra

note 218 and accompanying text (discussing United States v. Redmon, 138

F.3d 1109 (7th Cir. 1998)); cf United States v. Diehl, 276 F.3d 32, 39

(lst Cir. 2002) ("On scrutiny, the driveway cases cited from this

circuit and others do not stand for the proposition urged by the

government, that 'there is no Fourth Amendment protection in

driveways'.... We noted in our prior conclusion that 'there is

no expectation of privacy in a driveway that is exposed to the

public'...." (quoting United States v. Roccio, 981 F.2d 587,

591 (lst Cir. 1992))), cert. denied, 537 U.S. 834 (2002).



(95.) The Court has never adopted the concept of "vertical

curtilage." Instead, curtitage as viewed from above is analyzed

under the Katz reasonableness framework. See Florida v. Riley, 488 U.S.

445 (1989) (holding that observation of the curtilage from a police

helicopter flying at 400 feet, which was not contrary to law or

regulation, was not a search); California v. Ciraolo, 476 U.S. 207, 213

(1986) (holding that observation of the curtilage from "public

navigable airspace," in this case 1000 feet above ground, was not

an unreasonable search). Other courts, however, have discussed vertical

curtilage. See infra note 96.



(96.) See, e.g., Commonwealth v. Oglialoro, 547 A.2d 387, 392 (Pa.

Super. Ct. 1988) (Kelly, J., concurring) (discussing "vertical

curtilage"), aff'd, 579 A.2d 1288 (Pa. 1990).



(97.) Ciraolo, 476 U.S. at 213.



(98.) Id. at 214 ("[R]espondent's expectation that his

garden was protected from observation is unreasonable and is not an

expectation that society is prepared to honor....").



(99.) See Dow Chem. Co. v. United States, 476 U.S. 227, 234-35

(1986) ("In California v. Ciraolo, decided today, we hold that

naked-eye aerial observation from an altitude of 1,000 feet of a

backyard within the curtilage of a home does not constitute a search

under the Fourth Amendment." (citation omitted)).



(100.) See Ciraolo, 476 U.S. at 215 ("[I]t is unreasonable for

respondent to expect that his marijuana plants were constitutionally

protected from being observed with the naked eye from an altitude of

1,000 feet. The Fourth Amendment simply does not require the police

traveling in the public airways at this altitude to obtain a warrant in

order to observe what is visible to the naked eye.").



(101.) 488 U.S. 445 (1989).



(102.) Id. at 447-48.



(103.) As in Ciraolo, the Court relied on the second part of Katz.

The Court recognized that Riley had a subjective expectation of privacy

under the first part of Katz but held that here, "such an

expectation of privacy was not reasonable and not one that 'society

is prepared to honor.'" Id. at 449 (quoting Ciraolo, 476 U.S.

at 214).



(104.) Id. at 451 ("This is not to say that an inspection of

the curtilage of a house from an aircraft will always pass muster under

the Fourth Amendment simply because the plane is within the navigable

airspace specified by law. But it is of obvious importance that the

helicopter in this case was not violating the law....").



(105.) Id. at 454 (O'Connor, J., concurring in the judgment)

("[T]he relevant inquiry after Ciraolo is not whether the

helicopter was where it had a right to be under FAA regulations. Rather,

consistent with Katz, we must ask whether the helicopter was in the

public airways at an altitude at which members of the public travel with

sufficient regularity that Riley's expectation of privacy from

aerial observation was not one that society is prepared to recognize as

reasonable." (internal quotation marks omitted)).



(106.) See supra Part I.A.



(107.) See Tri-State Steel Constr., Inc. v. Occupational Safety

& Health Review Comm'n, 26 F.3d 173, 178 (D.C. Cir. 1994)

(Williams, J., concurring in the result) (explaining Dunn as "a

special case of the more general doctrine that a reasonable expectation

of privacy is necessary for a successful 4th Amendment claim").



(108.) Factors one through three relate to the place

itself--"the proximity of the area claimed to be curtilage 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." United

States v. Dunn, 480 U.S. 294, 301 (1987). Only factor four considers

"people"--"the steps taken by the resident to protect the

area from observation by people passing by." Id.



(109.) 533 U.S. 27 (2001).



(110.) See Gordon J. MacDonald, Stray Katz: Is Shredded Trash

Private?, 79 CORNELL L. REV. 452 (1994).



(111.) See supra note 95 and accompanying text.



(112.) Florida v. Riley, 488 U.S. 445, 450 (1989) (stating that

"the property surveyed was within the curtilage of

respondent's home"); California v. Ciraolo, 476 U.S. 207, 213

(1986) (accepting "that this yard and its crop fall within the

curtilage").



(113.) Riley, 488 U.S. at 449.



(114.) In decisions after the aerial surveillance cases, some

courts have looked to Katz, not Dunn, as the ultimate inquiry. See

United States v. Reilly, 76 F.3d 1271, 1276 (2d Cir. 1996) ("We

therefore begin our analysis by looking to these four [Dunn] factors.

But we do so fully conscious that the factors are not necessarily

exclusive and that we are not, in any event, to apply them

mechanistically.... The touchstone of our inquiry, therefore, remains,

whether Reilly had a reasonable expectation of privacy in his

cottage.").



(115.) Kyllo v. United States, 533 U.S. 27 (2001).



(116.) Id. at 34 ("While it may be difficult to refine Katz

when the search of areas such as telephone booths, automobiles, or even

the curtilage and uncovered portions of residences are at issue, in the

case of the search of the interior of homes--the prototypical and hence

most commonly litigated area of protected privacy--there is a ready

criterion, with roots deep in the common law, of the minimal expectation

of privacy that exists, and that is acknowledged to be

reasonable.").



(117.) Id. at 40 (quoting Payton v. New York, 445 U.S. 573, 590

(1980)).



(118.) In 1976, before Oliver or Dunn, the Seventh Circuit tried to

establish a bright-line rule--"any outbuilding or area within 75

feet of the house is within the curtilage and any outbuilding or area

further than 75 feet is outside the curtilage." United States ex

rel. Saiken v. Bensinger, 546 F.2d 1292, 1297 (7th Cir. 1976). The

Seventh Circuit has subsequently criticized its holding. See United

States v. Swart, 679 F.2d 698, 702 (7th Cir. 1982) (stating that Saiken

failed to cite Katz and that "Katz would preclude an absolute rule

that anything beyond a specific distance from a dwelling or business is

in an area unprotected by the Fourth Amendment").



(119.) United States v. Dunn, 480 U.S. 294, 301 n.4 (1987)

(rejecting the government's "first fence rule" stating

"[w]e decline the Government's invitation to adopt a

'bright-line rule' that 'the curtilage should extend no

farther than the nearest fence surrounding a fenced house'");

see also United States v. Ishmael, 843 F. Supp. 205,209 (E.D. Tex. 1994)

("There are no bright lines that determine where the curtilage of a

home ends."), rev'd on other grounds, 48 F.3d 850 (5th Cir.

1995).



(120.) Florida v. Riley, 488 U.S. 445, 452-55 (1989)

(O'Connor, J., concurring in the judgment).



(121.) See United States v. Redmon, 138 F.3d 1109, 1130 (7th Cir.

1998) (en banc) (referring to "the old common law doctrine of

'curtilage'").



(122.) "Unlike Europeans, jealous of their possessions and of

their privacy, Americans did not build walls around their houses."

KENNETH T. JACKSON, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE

UNITED STATES 59 (1985).



(123.) See W.G. HOSKINS, THE MAKING OF THE ENGLISH LANDSCAPE 138-61

(Book Club Assocs. 1981) (1955) (discussing the enclosure acts and their

impact on the English landscape); PHILIP PREGILL 8. NANCY VOLKMAN,

LANDSCAPES IN HISTORY: DESIGN AND PLANNING IN THE EASTERN AND WESTERN

TRADITIONS 261 (2d ed. 1999).



(124.) See infra note 212 and accompanying text.



(125.) See Wright v. State, 77 S.E. 657, 658 (Ga. Ct. App. 1913)

("It has been several times said by learned jurists that it was

unfortunate that this term "curtilage," found in the English

statutes defining the offense of burglary, and which applies to the

dwelling and the houses surrounding the dwelling-house in England,

should have been perpetuated in the statutes of our different States;

for the term is not strictly applicable to the common disposition of

enclosures and buildings constituting the homestead of the inhabitants of this country, and particularly of farmers. In England dwellings and

outhouses of all kinds are usually surrounded by a fence or stone wall,

enclosing a small piece of land embracing the yards and outbuildings

near the house, constituting what is called the "court;" and

this constitutes the cartilage of the dwelling-house."); see also

Bare v. Commonwealth, 94 S.E. 168, 172 (Va. 1917) ("In England the

curtilage seems to have included only the buildings within the inner

fence or yard, because there, in early times, for defense, the custom

was to enclose such place with a substantial wall. In this country,

however, such walls or fences, in many cases, do not exist, so that with

us the curtilage includes the cluster of buildings constituting the

habitation or dwelling place, whether enclosed with an inner fence or

not.").



(126.) Before today's curtilage cases involving marijuana

offenses, most of the earlier curtilage cases dealt with the production

or possession of illegal liquor during Prohibition. See, e.g., Amos v.

United States, 255 U.S. 313 (1921).



(127.) The American marijuana drug culture is exemplified by High

Times, a magazine first published in 1974, which in 2002 had an average

paid circulation of 137,393. See High Times Media Kit 12, 18, available

at http://www.hightimes.com/mainsite/About/content.php?page=mediakit

(last visited Feb. 25, 2004).



(128.) Frontline: Busted (PBS television broadcast, Apr. 28, 1998)

[hereinafter Frontline].



(129.) In the mid-1970s, most marijuana was imported from Mexico

and Colombia. In the late 1970s, due to an eradication program, the

supply of the drug from Mexico dwindled. To satisfy demand, Americans

became producers of up to half of the marijuana consumed domestically.

NAT'L DRUG ENFORCEMENT POLICY BD., ANALYSIS OF THE DOMESTIC

CANNABIS PROBLEM AND THE FEDERAL RESPONSE 15 (1986).



(130.) Kevin B. Zeese, Drug Policy in America--A Continuing Debate:

Engaging the Debate Reform vs. More of the Same, 30 FORDHAM URB. L.J.

465,480 (2003).



(131.) Frontline, supra note 128.



(132.) Drug Enforcement Admin., U.S. Dep't of Justice, DEA

Programs: Marijuana Eradication, at

http://www.usdoj.gov/dea/programs/marijuanap.htm (last visited Feb. 25,

2004).



(133.) Id.



(134.) See United States v. Reilly, 875 F. Supp 108, 117 (N.D.N.Y.

1994) ("Several courts adopt the view that it does not matter

whether 'officers first trespass upon property that is obviously

curtilage ... while investigating a tip, as long as the incriminating observations themselves take place outside the protected

curtilage.' ... This court agrees...." (first omission in

original) (quoting United States v. Traynor, 990 F.2d. 1153, 1157 (9th

Cir. 1993))), aff'd, 76 F.3d 1271 (2d Cir. 1996).



(135.) See, e.g., John Gales Sauls, Curtilage: The Fourth Amendment

in the Garden, at http://www.totse.com/en/law/justice_for_all/curtilag.html (last visited Feb. 25, 2004). In this article, John Sauls, Legal

Instructor at the FBI Academy, poses hypothetical curtilage scenarios

for agents. For example, in one hypothetical an "officer needs to

determine whether the bushes he is considering crawling into [in order

to see men on a patio] are within the curtilage of the residence."

Id. Even private investigators are concerned with the scope of the

curtilage. See Jim Parker, Trash Archaelogy [sic]: Curtilage and

Expectation of Privacy (2002), at

http://www.pimall.com/nais/nl/n.trasharchaelogy.html ("[The intent

behind the Fourth Amendment] was not to protect people from people--or

indeed people from Private Investigators. However, it is still important

that we know the rules of the game before we play. Should we ever face

legal action as a result of obtaining information in this manner, it may

give you grounds to appeal any adverse court ruling and show diligence

which may prove instrumental in you holding on to your finances and

livelihood.") (last visited Feb. 25, 2004).



(136.) See United States v. Redmon, 138 F.3d 1109, 1112 (7th Cir.

1998) (en banc) (stating that the curtilage "is an imaginary

boundary line between privacy and accessibility to the public").

See generally Carol M. Rose, Crystals and Mud in Property Law, 40 STAN.

L. REV. 577, 592-93 (1988) (discussing the tension of rules versus

standards).



(137.) See WARREN SCHULTZ, A MAN'S TURF: THE PERFECT LAWN

31-35 (1999) (chronicling the history of America's obsession with

lawn mowing).



(138.) See Mike Pulfer, Crisscross Lawns Come Home: Owners Emulate

Major League Ballparks by Mowing Patterns into Their Yards, CINCINNATI

ENQUIRER, May 9, 2000, available at

http://www.enquirer.com/editions/2000/05/09/loc_criscross_lawns.html

(last visited Feb. 5, 2004).



(139.) See DAVID R. MELLOR, PICTURE PERFECT: MOWING TECHNIQUES FOR

LAWNS, LANDSCAPES, AND SPORTS 15 (2001).



(140.) Id.



(141.) See David R. Mellor, Art Exhibit Focuses on Mowing Patterns,

GROUNDS MAINTENANCE, Sept. 1, 2000, at

http://grounds-mag.com/ar/grounds_maintenance_art_exhibit_focuses/index.htm (last visited Feb. 5, 2004).



(142.) For the influence of golf on the residential lawn, see

Virginia Scott Jenkins, "'Fairway Living": Lawncare and

Lifestyle from Croquet to the Golf Course, in THE AMERICAN LAWN 116

(Georges Teyssot ed., 1999). Today there are approximately 25 million

golfers in America. Hal Philips, Winners' Club: Success Stories

from Public Golf Course Renovations, PARKS & RECREATION, June 1,

2003, at 38.



(143.) See Mark Blakemore, The ABC's of Golf, at

http://www.pgaprofessional.com/ glossary (last visited Nov. 7, 2003).



(144.) United States v. Shates, 915 F. Supp. 1483, 1488-89 (N.D.

Cal. 1995) ("While the trees do form a demarcation of the north

side of the 'compound,' they are more akin to a mow line than

to a fence. In a curtilage analysis, a fence may weigh more heavily in

favor of finding curtilage, whereas a mow line weighs far less

heavily.") The court goes on to assess aerial photographs of

"mowing patterns" to determine the nature and use of each area

of the compound but decides, in this case, they are inconclusive:





Testimony at the hearing showed that, in the rural areas of

Mendocino County, people mow for many reasons other than a well

manicured lawn. The residents mow to prevent ticks from jumping on

their legs, to prevent fires, and to curb what is described as "a

serious problem with rattlesnakes."

Id. at 1489.



(145.) Mow-lines were analyzed before Dunn. See United States v.

Van Dyke, 643 F.2d 992, 993 (4th Cir. 1981) ("The officers walked

through the trees growing along the boundary between the two properties,

climbed a fence, and moved 15 feet beyond the fence to a location 150

feet from the residence. There they lay down in a patch of honeysuckle bordering the mowed lawn."); Durham v. State, 471 S.W.2d 527, 529,

531 (Ark. 1971) ("The yard had been mowed and was fenced.... Unlike

the field where the rifles were found, this yard was the curtilage of

the Durham dwelling and, as such, subject to the same constitutional

protection as the house itself." (emphasis added) (citing McDowell

v. United States, 383 F.2d 599 (8th Cir. 1967) and Wattenburg v. United

States, 388 F.2d 853 (9th Cir. 1968))); State v. Burch, 320 S.E.2d 28,

30 (N.C. Ct. App. 1984) ("A careful review of the evidence

presented in this case indicates that the brush pile concealing the

marijuana plants was in fact a part of the curtilage. The curtilage

naturally began at the defendant's house. From his dwelling to the

brush pile, there was sown grass which the defendant mowed with a

regular yard mower.... [W]e need only to recognize that the curtilage

extended at least as far as the brush pile where the marijuana was

located. Because the marijuana was within the curtilage, it was unlawful

for the officers to search the area and seize the plants without a

search warrant or other circumstances justifying an exception to the

warrant requirement.").



(146.) See infra note 176 and accompanying text.



(147.) See infra note 159 and accompanying text.



(148.) United States v. Dunn, 480 U.S. 294, 301 (1987).



(149.) Id.



(150.) See Williams v. Garrett, 722 F. Supp. 254, 260-61 (W.D. Va.

1989) ("[R]eading the word 'enclosure' in Dunn to require

an artificial barrier seems unduly narrow. The boxwood hedge and the

heavy woods created a natural enclosure around the home and yard;

requiring a person to expend resources and sacrifice aesthetics by

building a fence in order to obtain protection from unreasonable

searches is not required by the constitution.").



(151.) Dunn, 480 U.S. at 301.



(152.) No. 208857, 1998 Mich. App. LEXIS 883 (Mich. Ct. App. Dec.

1, 1998).



(153.) Id. at *1.



(154.) Id. at *4-5.



(155.) 412 S.E.2d 477 (W. Va. 1991) (per curiam).



(156.) See id. at 479.



(157.) See supra note 64 and accompanying text.



(158.) Townsend, 412 S.E.2d at 479.



(159.) No. 99CA09, 1999 Ohio App. LEXIS 6008 (Ohio Ct. App. Dec. 9,

1999).



(160.) Id. at *9 (citations omitted) (quoting United States v.

Dunn, 480 U.S. 294, 302 (1987)).



(161.) 308 F.3d 430 (4th Cir. 2002).



(162.) Id. at 437.



(163.) 604 N.W.2d 552 (Wis. 2000).



(164.) See id. at 554.



(165.) Id. "As defense counsel admitted to the circuit court,

his 'client's home would not win a Martha Stewart award.'

Instead, a twenty-foot clearing surrounds the house in which only

low-lying weeds, brush, and wildflowers grow." Id. at 554-55.



(166.) Id. at 561 (citations omitted).



(167.) United States v. Dunn, 480 U.S. 294, 301 (1987).



(168.) No. 98-6116, 1999 U.S. App. LEXIS 3546 (6th Cir. Mar. 1,

1999).



(169.) Id. at *9.



(170.) Id. at *9-10.



(171.) No. C6-92-641, 1993 Minn. App. LEXIS 55 (Minn. Ct. App. Jan.

12, 1993).



(172.) Id. at *4.



(173.) Criminal No. 10587, 1997 Va. Cir. LEXIS 660 (Va. Cir. Ct.

Jan. 27, 1997).



(174.) Id. at *17. One of the marijuana plants was found in a

"bush-hogged" area (meaning that the grass in the area had

been cut by a Bush Hog[R] brand lawnmower). The court concluded that

this area was not "'so associated with the activities and

privacies of domestic life' as to raise an inference that the [area

is] a part of the curtilage." Id. at *19 (quoting United States v.

Dunn, 480 U.S. 294, 301-02 (1987)).



(175.) See United States v. Rivard, No. 92-10064-01, 1993 U.S.

Dist. LEXIS 2910, at *4 (D. Kan. Feb. 18, 1993) ("The officers

never entered the mowed or finished area of the property."); State

v. Chaussee, 866 P.2d 643,646 n.3 (Wash. Ct. App. 1994).



(176.) 793 F. Supp. 273 (D. Kan. 1992).



(177.) Id. at 275.



(178.) 124 F.3d 768 (6th Cir. 1997).



(179.) The court of appeals noted that "[d]efendants'

backyard, much of which is shielded from the road by the house, consists

of a neatly trimmed lawn...." Id. at 770.



(180.) Although the court of appeals held that the district court

erred in denying the motion to suppress, it affirmed the

defendant's conviction because the admission of the tainted

evidence was harmless error. The task force had lawfully seized 862

marijuana plants from an open field behind the backyard. Id. at 774.



(181.) Id. at 773.



(182.) See also United States v. Reilly, 76 F.3d 1271, 1279 (2d

Cir. 1996) ("The park-like appearance of the area made it readily

apparent to observers that the area was private.").



(183.) No. 92 CA 527, 1992 Ohio App. LEXIS 6280, at *8 (Ohio Ct.

App. Dec. 10, 1992).



(184.) See also State v. Tanner, No. 94 CA 2006, 1995 Ohio App.

LEXIS 1028, at *11 (Ohio Ct. App. Mar. 10, 1995) ("In Bayless, we

determined that a garden located approximately fifty feet from a house

was within the curtilage of the house. The area between that house and

garden was a mowed lawn.... In the case sub judice, the garden was

located near the house. Appellant mowed the area near the garden.... We

find that the evidence presented in the case sub judice supports a

conclusion that the garden was within the curtilage of the

house.").



(185.) Bayless, 1992 Ohio App. LEXIS 6280, at *7.



(186.) 875 F. Supp. 108, 119 (N.D.N.Y. 1994), aff'd, 76 F.3d

1271 (2d Cir. 1996).



(187.) The discussion in Reilly of the history and maintenance of

the defendant's lawn included the following description:





Sometime between 1987 to 1989, defendant had a local farmer plant a

lawn on the entire area of the defendant's property between the main

residence and the north boundary line as well as from the main

residence to Woodard Road. A large tractor was used to till the soil

and to plant seed. After the grass began to grow, the lawn was

extensively roiled. At about the same time, defendant hired a local

resident who mowed the lawn, tended gardens and placed mulch around

most of the trees located on the property through September 1991.

While the area between the main residence and the north boundary

line was regularly mowed with both a push and riding mower, the

front portion of the lawn, between the main residence and Woodard

Road, was regularly mowed with a brush hog. In September 1991, the

time of the allegedly unlawful search, the lawn had substantially

grown throughout defendant's property, although it had been very dry

as a result of drought conditions during the preceding summer

months.

Id. at 112.



(188.) Id. at 113.



(189.) The outbuilding in Dunn, considered outside the curtilage,

was 180 feet from the residence. United States v. Dunn, 480 U.S. 294,

302 (1987).



(190.) Reilly, 875 F. Supp. at 118.



(191.) Id. at 118-20.



(192.) Id. at 119-20 (quoting Dunn, 480 U.S. at 301) (citations and

internal quotation marks omitted).



(193.) Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,

concurring) (internal quotation marks omitted).



(194.) See supra note 192 and accompanying text.



(195.) "This ambiguity of the lawn, of the threshold between

the public space of the street and the private, familial, domestic

space, has remained a constant of the American landscape since the

moment of its colonization." Georges Teyssot, The American Lawn:

Surface of Everyday Life, in THE AMERICAN LAWN, supra note 142, at 1,

15.



(196.) Therese O'Malley, The Lawn in Early American Landscape

and Garden Design, in THE AMERICAN LAWN, supra note 142, at 64, 84

("The lawn in the colonial and antebellum periods was rarely the

'green velvet carpet' portrayed in treatise literature. Lawns

were not a standard feature of every citizen's home. But they were

found at the houses of members of a political and cultural elite as well

as an emerging educated middle class in the period of the early

republic.").



(197.) See generally DAVID HACKETT FISCHER, ALBION'S SEED:

FOUR BRITISH FOLKWAYS IN AMERICA 181-86, 390, 763 (1989) (stating, for

example, that in Massachusetts, "villages and hamlets were common,

and isolated homesteads were comparatively rare").



(198.) See JACKSON, supra note 122, at 55 (stating that "in

colonial America the Puritans did believe that eternal salvation could

best be won in a cohesive, tight community"); JOHN REPS, TOWN

PLANNING IN FRONTIER AMERICA 1 (Univ. of Mo. Press 1980) (1965).



(199.) JACKSON, supra note 122, at 56 ("House siting ...

followed no clear pattern before 1860."); VIRGINIA SCOTT JENKINS,

THE LAWN: A HISTORY OF AN AMERICAN OBSESSION 27 (1994) (stating that

"there was no clear pattern of house siting during the nineteenth

century").



(200.) JACKSON, supra note 122, at 55.



(201.) Id. at 56 ("[S]mall towns copied the compact

arrangements of larger cities.").



(202.) Id. at 55-56.



(203.) Id. at 56 ("Because regular garbage collection was rare

before the Civil War, most families threw their refuse out the doors to

scavenging dogs and pigs.").



(204.) Id. (stating that "[e]xcept for regular visits to the

privy vault or outhouse, most people avoided the backyard

entirely").



(205.) Id. See JENKINS, supra note 199, at 20.



(206.) See JENKINS, supra note 199, at 22-23.



(207.) Id. at 26 ("Mid-nineteenth-century architectural

pattern books all showed detached houses, many surrounded by

lawns.").



(208.) CLIFFORD EDWARD CLARK, JR., THE AMERICAN FAMILY HOME:

1800-1960, at 38 (1986) ("The plan-book houses were almost always

pictured in isolated rural settings. No other homes were visible and the

surrounding trees and shrubs seemed to provide both a sense of

spaciousness and a feeling of privacy."); JACKSON, supra note 122,

at 58 ("The new ideal was no longer to be part of a close

community, but to have a self-contained unit, a private wonderland [figuratively] walled off from the rest of the world."); GWENDOLYN

WRIGHT, MORALISM AND THE MODEL HOME 13 (1980) ("[T]he homes built

from these pattern-book models were supposed to reinforce both a

democratic spirit of progress and an individual family's sense of

privacy."). But see WILLIAM J. NOVAK, THE PEOPLE'S WELFARE:

LAW AND REGULATION IN NINETEENTH-CENTURY AMERICA 157 (1996) ("One

of the most sacred and enduring myths in Anglo-American

constitutionalism is Edward Coke's adage 'a man's house

is his castle.' ... Despite such sentimental attachment to houses

as quintessentially private spheres, public realities intruded all the

time. As the New York fire cases made clear, all the king's men

could not only cross a tenement's threshold, they could tear it

down.").



(209.) See Teyssot, supra note 195, at 17.



(210.) See JENKINS, supra note 199, at 21. Andrew Jackson Downing,

the most famous nineteenth-century pattern-book author, stated:

"'[T]he close proximity of fences to the house gives the whole

place a confined and mean character.... A wide spread lawn, on the

contrary, where no boundaries are conspicuous, conveys an impression of

ample extent and space for enjoyment.'" Id.



(211.) O'Malley, supra note 196, at 82 ("Llewellyn Park,

New Jersey, a planned residential park begun in 1857, was a turning

point between the great country estates and the middle-class suburban

tract, and the treatment of the lawn was a key element of its innovative

planning.").



(212.) Id. ("Since the goal was to make these private

properties parklike, and therefore communal, buyers agreed there would

be no fences separating the lots."). Compare this idea of the

park-like setting as a communal space with the Reilly court's view

of a park-like setting: "The park-like appearance of the area made

it readily apparent to observers that the area was private." United

States v. Reilly, 76 F.3d 1271, 1279 (2d Cir. 1996).



(213.) O'Malley, supra note 196, at 82 (stating that "the

utilization of lawns and borrowed views [in Llewellyn Park] ... became a

standard for suburban design of the next half century in America").



(214.) Teyssot, supra note 195, at 22 (stating the unwritten rule

of architectural composition in the American suburb: "the

inhabitant must maintain his lawn as a community place").



(215.) W.D. WETHERELL, THE MAN WHO LOVED LEVITTOWN 14 (1985).



(216.) See infra Part III.C; see also Nan Ellin, Shelter from the

Storm or Form Follows Fear and Vice Versa, in ARCHITECTURE OF FEAR 13,

33 (Nan Ellin ed., 1997) ("The impulse to privatize is epitomized

by the growth of gated communities, residential developments with

patrolled entryways and a clear separation from other neighborhoods,

usually by a secure fence.").



(217.) See Todd W. Bressi, Planning the American Dream, in PETER

KATZ, THE NEW URBANISM: TOWARD AN ARCHITECTURE OF COMMUNITY, at xxv,

xxvi (1994) ("The most powerful icon of the middle class, the

single-family detached house surrounded by ample yards, has roots in

Victorian-era mythology: The house was seen as a cradle, nurturing (and

cultivating) the emerging independent nuclear family, and as a bulwark,

insulating woman and children from the industrial city's evils....

And the house, protected in its residential enclave and surrounded by

spacious yards, offered privacy and protection from outside

contamination.").



(218.) 138 F.3d 1109 (7th Cir. 1998) (en banc).



(219.) Id. at 1110.



(220.) Id. at 1114.



(221.) Id. at 1132 (Posner, C.J., dissenting) ("If I am right

to draw the line at the boundaries of the curtilage, the critical

question in this case is whether the place where the garbage cans were

set out for collection, at the head of Redmon's driveway, was

within his curtilage.... My answer to the question ... is

'yes.'").



(222.) Judge Posner's dissent continued:





The garage was attached to the house, and the garbage cans were

right outside the garage, at the farthest point of the driveway from

the street. If this spot was not within Redmon's curtilage--if it is

to be classified as an 'open field'--then no place outside his house

was within the curtilage, and, indeed, attached houses, row houses,

and other cramped urban dwellings have no curtilage (beyond the

house itself); curtilage is confined to farmers and to wealthy

suburbanites and exurbanites.

Id.



(223.) Id.



(224.) 612 F. Supp. 777 (E.D. Cal. 1985) (holding that the aerial

surveillance was unreasonable), rev'd, 805 F.2d 849 (9th Cir.

1986).



(225.) Id. at 790 n. 11. The court also stated:





Moreover, where a rural business structure is located near, although

not within, the curtilage of a farm residence, there is manifest a

more likely possibility that the business enterprise is related to

domestic life. Arguably, this is a factor for the Court's serious

consideration in determining whether a privacy expectation in the

structure is reasonable.

Id.



(226.) 632 F.2d 1149 (4th Cir. 1980).



(227.) Id. at 1159.



(228.) 537 F.2d 554 (1st Cir. 1976).



(229.) Id. at 558 (citations omitted).



(230.) Even before Dunn, the rural character of a residence was

important. See United States v. Holmes, 521 F.2d 859 (5th Cir. 1975)

(holding that the search of a shed was a violation of the curtilage),

aff'd by an equally divided court on reh'g en banc, 537 F.2d

227 (5th Cir. 1976). "Whatever precautions a homeowner in an urban

area might have to take to protect his activity from the senses of a

casual passerby, a dweller in a rural area whose property is surrounded

by extremely dense growth need not anticipate that government agents

will be crawling through the underbrush by putting up signs warning the

government to keep away." Holmes, 521 F.2d at 870.



(231.) See State v. Rogers, 638 A.2d 569, 573 (Vt. 1993)

("Defendants' home is not an urban residence for which privacy

expectations are reduced exponentially as the distance from the home

increases.").



(232.) See United States v. Johnson, 256 F.3d 895, 902 (9th Cir.

2001) ("[C]ourts have reasoned that the curtilage of a home in a

rural area could extend farther than the curtilage of a home in an urban

or suburban setting." (citation omitted)); United States v. Reilly,

76 F.3d 1271, 1277 (2d Cir. 1996) ("[C]urtilage may reach a larger

area in a rural setting.... On a large parcel of land, a pond 300 feet

away from a dwelling may be as intimately connected to the residence as

is the backyard grill of the bloke next door."); see also Hart v.

Myers, 183 F. Supp. 2d 512, 522 (D. Conn. 2002) ("Here, the

hangpole [to hang deer carcasses] was approximately twenty-five yards

away from the [hunting shed] structure. That distance is fairly short

and could support an inference that the hangpole should be treated as

part of the home. This is especially true in the outdoor or camp-like

setting at issue here, because more of the activities intimately

associated with the home will likely be conducted outside this home,

which lacked plumbing, a stove and private sleeping quarters."),

aff'd, 50 Fed. Appx. 45 (2d Cir. 2002).



(233.) However, one court, in discussing the difficulty of applying

Dunn in the urban context, noted that the enclosure factor is not

particularly relevant in the city and turned to factor three to resolve

the curtilage question. Joyner v. State, 589 A.2d 1330, 1337 (Md. Ct.

Spec. App. 1991) ("Likewise, the absence of a fence or other means

of excluding passersby from the area may be less significant in an urban

than in a rural area, since the configuration of the streets and houses

in many parts of the city may make it impossible, or at least highly

impracticable, to screen one's home and yard from view."). The

court went on to give substantial weight to the "use factor."

The court stated, "In any event, in an urban area, substantial

weight may have to be accorded the uses to which one's real estate

is put, for actual use of the yard and related property is likely to be

the primary way in which one asserts an intimate tie to the home."

Id.



(234.) United States v. Jenkins, 124 F.3d 768 (6th Cir. 1997).



(235.) Id. at 773.



(236.) See William H. Lucy & David L. Phillips, Suburbs and the

Census: Patterns of Growth and Decline (Brookings Inst. Survey Series,

Dec. 2001), http://www.brookings.edu/dybdocroot/es/urban/census/lucy.pdf

(last visited Feb. 5, 2004).



(237.) See Commonwealth v. Oglialoro, 547 A.2d 387, 392 (Pa. Super.

Ct. 1988) (Kelly, J., concurring) ("Given the heightened

significance of the ancient concept of curtilage in modern Fourth

Amendment jurisprudence, we will no doubt be called upon to apply that

feudal concept in the strikingly non-feudal context of urban and

suburban housing...."), aff'd, 579 A.2d 1288 (Pa. 1990).



(238.) See LEONIDAS W. RAMSEY, LANDSCAPING THE HOME GROUNDS 54

(1930) ("A man's home may be his castle, but his front lawn

belongs to the public. At least this is the case in the great majority

of American homes. The universal practice of establishing building lines

and setting the house back from the street has created the typical

American front yard. Custom has prescribed the leaving of the front yard

open, providing a view of the house and the grounds."); see also

FRED E.H. SCHROEDER, FRONT YARD AMERICA: THE EVOLUTION AND MEANINGS OF A

VERNACULAR DOMESTIC LANDSCAPE 9 (1993) ("Exemplar of the American

vernacular front yard at its best: open, neat, lawn without any visible

division from the neighbor's, foundation plantings that neither

obscure the view from the street nor ensure privacy within....");

SCHULTZ, supra note 137, at 41 ("In suburbia, the front lawn became

the welcome mat to the home.").



(239.) See supra Part III.A.



(240.) Teyssot, supra note 195, at 1 (quoting Milwaukee gardening

radio talk show host Lorrie Otto).



(241.) Oliver v. United States, 466 U.S. 170, 180 (1984) (quoting

Boyd v. United States, 116 U.S. 616, 630 (1886)).



Brendan Peters, J.D., Stanford Law School, 2003; M.Arch., Princeton

University School of Architecture, 1999; B.S., University of Virginia

School of Architecture, 1993. Executive Editor, Stanford Law Review,

Volume 55. Special thanks to Ben Koodrich, his editing team, and the

members of the Law Review; and most of all to my wife Jil for her love

and immeasurable support.