Virginia law provides a defense to possession of a handgun on one’s own curtilage, but curtilage isn’t defined. The court looks to the common law, and provides us a valuable discussion. Foley v. Commonwealth, 2014 Va. App. LEXIS 107 (March 25, 2014):
A. The Term “Curtilage,” as Contained in Code § 18.2-308(B), Is as Defined at Common Law.
In accordance with the basic tenets of statutory construction, “[w]hen the language of a statute is plain and unambiguous, we are bound by the plain meaning of that language.” Vaughn, Inc. v. Beck, 262 Va. 673, 677, 554 S.E.2d 88, 90 (2001). “Thus, ‘[a]n undefined term must be given its ordinary meaning, given the context in which it is used.'” Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007) (quoting Sansom v. Bd. of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999)). “[W]hen the General Assembly has used words of a plain and definite import, courts cannot place on them a construction that amounts to holding that the General Assembly meant something other than that which it actually expressed.” Vaughn, Inc., 262 Va. at 677, 554 S.E.2d at 90. “Consequently, ‘[t]he plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction.'” Meeks, 274 Va. at 802, 651 S.E.2d at 639 (quoting Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998)).
Both the Commonwealth and Foley agree that the Code does not define “curtilage” and there is no existing Virginia case law construing the meaning of “curtilage” as it is used in Code § 18.2-308(B), or as it is used elsewhere in the Code. Although the Code does not expressly define “curtilage,” because the term’s plain meaning is well established at common law, we assume the General Assembly intended to assign its established meaning. See Meeks, 274 Va. at 802, 651 S.E.2d at 639 (finding that when courts interpret the language of a statute, “‘[a]n undefined term must be given its ordinary meaning, given the context in which it is used'” (quoting Sansom, 257 Va. at 594-95, 514 S.E.2d at 349)); see also Code § 1-200 (“The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.”).
“The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself.” United States v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987). The Supreme Court of Virginia explained in Bare v. Commonwealth, 122 Va. 783, 794, 94 S.E. 168, 172 (1917), that “[i]n 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,” however, in the United States “such walls or fences, in many cases, do not exist, so that [in the United States] the curtilage includes the cluster of buildings constituting the habitation or dwelling place, whether enclosed with an inner fence or not.” The Bare Court defined a home’s “curtilage” as “a space necessary and convenient, habitually used for family purposes and the carrying on of domestic employment; the yard, garden or field which is near to and used in connection with the dwelling.” Id.
Bare’s definition embodies the common law conception of the meaning of “curtilage”: the boundaries of a home’s curtilage are primarily defined by their relationship with the home itself rather than mere physical proximity or ownership. See Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984) (“At common law, the curtilage is the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.'” (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 29 L. Ed. 746 (1886))). Thus, regardless of the context in which the extent of a home’s “curtilage” arises, the shared inquiry is the relevant area’s connection to the residence and its role in the lives of its occupants. See Robinson v. Commonwealth, 273 Va. 26, 34, 639 S.E.2d 217, 221 (2007) (“‘[T]he extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.'” (quoting Dunn, 480 U.S. at 300)). This is because the term “curtilage,” as it is used in the legal context, is historically understood to refer to an extension of the home that is so intertwined with the home that the law must provide it the same protection as the home itself. See Florida v. Jardines, 133 S. Ct. 1409, 1414-15, 185 L. Ed. 2d 495 (2013) (“Just as the distinction between the home and the open fields is as old as the common law, so too is the identity of home and what Blackstone called the ‘curtilage or homestall,’ for the ‘house protects and privileges all its branches and appurtenants.'” (quoting 4 William Blackstone, Commentaries *223, *225)); Jefferson v. Commonwealth, 27 Va. App. 1, 15 n.2, 497 S.E.2d 474, 481 n.2 (1998) (“The concept that the legal protections afforded to a dwelling house also extend to the curtilage originated at common law.”).
Because “curtilage” is properly defined at common law by its relationship to the residence and its use by its occupants, we reject as erroneous the trial court’s conclusion that non-exclusive easements are per se excluded from being considered part of a home’s curtilage within the meaning of this statute. While an area’s use by third parties may be relevant in determining whether the area is in the home’s curtilage, that fact alone does not categorically exclude it. Instead, courts must look to the area’s use and connection to the home itself rather than its use by third parties.
Conversely, this Court also rejects Foley’s argument that simply because he owned the property on which he was standing at the time of the offense, he was within the curtilage of his home and therefore exempt under subsection (B) from criminal prosecution under subsection (A). Such an interpretation of curtilage would deprive the courts of an inquiry into the particular use of the area in question and its relationship with the home. Moreover, if the General Assembly intended Code § 18.2-308(B) to exempt individuals standing on any portion of their property then it would not have chosen to use the more narrow terms “place of abode or the curtilage thereof.” See Chandler v. Peninsula Light & Power Co., 152 Va. 903, 906, 147 S.E. 249, 250 (1929) (“Where the language used is clear but is not as broad as it might have been, the court cannot give to the words used a new meaning in order to make them include that which the letter of the law excludes.”).
