N.D.Ga.: Driveway between street and house not curtilage

No standing to challenge installation of GPS for two reasons: (1) while the car was parked on defendant’s driveway, that’s where cars were commonly parked, and it was close to the street, so this would not be considered curtilage; (2) he didn’t claim he regularly drove the car, just occasionally drove it, so it wasn’t his to complain. United States v. Dooley, 2013 U.S. Dist. LEXIS 185902 (N.D. Ga. January 29, 2013)*:

Considering these factors, the undersigned finds that Henderson has not demonstrated a reasonable expectation of privacy in the driveway because it is not part of the curtilage of the 5015 Michael Jay Street residence. Although the first factor weighs in Henderson’s favor, as the area of the driveway on which the car was parked was right next to the garage door of the house, (Tr. at 51), the other three factors do not weigh in favor of finding the driveway to be within the curtilage. No enclosure or carport covered the driveway; instead, it was completely open to the public. (Tr. at 52). The driveway was being used to store vehicles, see (Tr. at 16, 52-53), and there is no evidence in the record that defendants used it for any other more private purpose, cf. United States v. Soliz, 129 F.3d 499, 502-03 (9th Cir. 1997), overruled on other grounds by United States v. Johnson, 256 F.3d 895 (9th Cir. 2001) (per curiam) (noting that parking cars is not a “private activit[y] connected with the sanctity of the home” and is instead a “mundane, open and notorious activity”). Finally, there is no evidence that any of the residents of 5015 Michael Jay Street, including Henderson, took any steps to protect the driveway from observation of people passing by; there was no gate or fence, no “No Trespassing” signs, nor any other features that would prevent a person standing in the public street from seeing the entirety of the driveway. See generally (Tr. at 51-52). Accordingly, even if Henderson had an expectation of privacy in the residence located at 5015 Michael Jay Street, he had no expectation of privacy in the driveway as it was not part of the residence’s curtilage and law enforcement therefore did not enter into a constitutionally protected area by crossing the driveway to attach the GPS tracker to the Impala. See United States v. Alvin, No. CR208-25, 2009 WL 722267, at *3 (S.D. Ga. Mar. 18, 2009), adopted at *1; see also United States v. Galaviz, 645 F.3d 347, 355-56 (6th Cir. 2011) (citations omitted) (noting that even if proximity to the house was close enough to possibly constitute curtilage, a “short driveway” “at least two car lengths long” was not curtilage where it “was not enclosed by a fence or other barrier” and “no apparent steps were taken by the residents of the house to protect the driveway from the sidewalk or street”); United States v. Ventling, 678 F.2d 63, 66 (8th Cir. 1982) (per curiam) (holding that a driveway is not “protected curtilage” because “a driveway and portion of the yard immediately adjacent to the front door of the residence can hardly be considered out of public view”); cf. United States v. Quintana, 594 F. Supp. 2d 1291, 1301-02 (M.D. Fla. 2009), adopted at 1294 (finding a paved driveway near the front of a residence to be curtilage where law enforcement accessed the driveway by jumping over a fence and unlocking an electronic driveway gate).

Moreover, Henderson has not shown that he had a constitutionally protected interest in the Impala itself. Indeed, with respect to the Impala, Henderson merely asserts that he “sometimes drove” the vehicle. See [Doc. 531 at 6 n.4; Doc. 553 at 554 (citing (Tr. at 17-18, 22))]; see also (Tr. at 18 (Yvonne testifying that Henderson rarely drove the Impala)). Henderson has not established that he had any possessory interest in the vehicle, and a non-owner, like Henderson, who drives the vehicle only after a GPS tracker is installed, cannot establish a Fourth Amendment violation on the basis of the trespass theory. See Jones, 132 S.Ct. at 951-52 (distinguishing United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984), on the ground that the government installed the tracking devices in the containers at a time when defendants did not have the containers in their possession). Accordingly, as Henderson has not established that he has a constitutionally protected interest with respect to either the driveway onto which law enforcement entered to attach the tracker or the Impala itself when the tracker was attached, it is RECOMMENDED that his motion to suppress any evidence obtained as a result of the GPS monitoring of vehicles, [Doc. 193], be DENIED to the extent Henderson asserts that the installation of the GPS tracking device violated his Fourth Amendment rights.