KS: Social guest has standing in curtilage, not following N.D.Okla

Curtilage is defined by either or both the Dunn factors and Jardines. Here, the residential property was fairly large, and the backyard was found to be curtilage in the trial court but the court of appeals disagreed in an unpublished opinion. The district court applied Dunn because Jardines had not yet been decided. The court finally held that a social guest has standing in the curtilage the same as the host, rejecting United States v. Owen, No. 14-CR-0162-CVE, 2014 WL 6750647, at *4-5 (N.D. Okla. 2014) (social guest has no standing in curtilage). State v. Talkington, 2015 Kan. LEXIS 167 (March 6, 2015):

As discussed above, the panel reweighed the evidence and failed to consider some of the factual findings relied on by the district court concerning each Dunn factor. These factual findings are significant because they weighed in favor of a finding of curtilage. While the panel was free to reach a de novo conclusion whether the factors individually and collectively suggested the area was curtilage, it needed to first apply a substantial competent evidence standard to the district court’s factual findings by accepting as true all inferences to be drawn from the evidence which support or tend to support the findings.

While the unkempt nature of the backyard, the lack of enclosed fencing, and the lack of obstructions to view the backyard may suggest the area was not curtilage, the contraband’s close proximity to the back porch steps, the partial enclosure by the rock wall/treeline and chain-link fence, the no trespassing/no solicitation signs on the house, the inability to see the area from a public vantage point, and the lack of a sidewalk or path leading to the backyard weigh in favor of a finding of curtilage. Accordingly, the panel erred in reversing because the district court’s findings of facts were supported by substantial competent evidence, and caselaw supports its legal conclusion that the area was curtilage.

. . .

We find State v. Pierce, 226 Or. App. 336, 203 P.3d 343 (2009), the most analogous of these cases to our factual scenario. In Pierce, officers responding to a noise complaint walked down a driveway past the front of the house to a chain-link fence and observed Pierce, who was a social guest of the homeowner, in the backyard trying to conceal marijuana plants. Pierce moved to suppress the evidence as an unlawful search of his host’s backyard, and the Oregon Court of Appeals agreed, noting in a footnote: “It is not disputed that defendant, who was a guest at [homeowner’s] house and was authorized to use [homeowner’s] garage, had a protected privacy interest in the curtilage of [homeowner’s] residence.” 226 Or. App. at 339 n.2. Likewise in this case, Talkington was a guest of Garrison, was authorized to use the yard, and the officer encroached on the curtilage to observe contraband hidden by the defendant in the backyard.

We find the caselaw attributing a reasonable expectation of privacy to the backyard or curtilage more persuasive. As the curtilage is treated as “‘part of the home itself for Fourth Amendment purposes,'” Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1414, 185 L. Ed. 2d 495 (2013), a social guest standing in the shoes of his or her host has standing to assert a reasonable, subjective expectation of privacy in the residence, which includes the curtilage.

Accordingly, we hold Talkington has a reasonable expectation of privacy as a social guest in his host’s residence under both the Carter factors and the Tenth Circuit’s “‘degree of acceptance into the household'” or an “‘ongoing and meaningful connection to [the host’s] home'” analysis. Poe, 556 F.3d at 1122. Considering whether the backyard falls under this protection, this case is more analogous to Hawkins (shed) and Pierce (hiding marijuana in backyard) than Meeks (locked detached garage) because Talkington’s relationship with Garrison included authorization to be in Garrison’s backyard. As Talkington has demonstrated that he was entitled to Fourth Amendment protections afforded his host as a social guest, he has also demonstrated standing to assert a reasonable, subjective expectation of privacy in the backyard, i.e., curtilage, of his host’s residence. See Huff, 278 Kan. 214, Syl. ¶ 6.