E.D.N.C.: Driveway isn’t always curtilage under Collins

Defendant’s driveway was not enough curtilage to make it unreasonable for the police to come on the driveway and look at his car. It wasn’t covered, and there was a road and open field right next to it. United States v. Hall, 2020 U.S. Dist. LEXIS 141598 (E.D. N.C. Aug. 6, 2020):

Defendant argues that his failure to enclose or otherwise make private his driveway is not determinative, citing Collins for the proposition that “a parking patio or carport into which an officer can see from the street is no less entitled to protection from trespass and a warrantless search than a fully enclosed garage.” 138 S. Ct. at 1675. Defendant’s reliance on Collins is unpersuasive. First, defendant selectively quotes the Court by omitting the first part of the relevant sentence, which begins: “[s]o long as it is curtilage ….” Id. Second, defendant ignores the context of the Court’s discussion, where the Court explained why it rejected a bright line rule proposed by the government that “the automobile exception does not permit warrantless entry into the physical threshold of a house or a similar fixed, enclosed structure inside the curtilage like a garage.” Id. at 1674 (internal quotations omitted). Here, the court’s determination is limited to individualized consideration of the facts of this case, rather than a bright line rule. Third, in the case before the Supreme Court, it expressly relied upon the fact that the driveway was “partially enclosed” in addition to proximity to the house to determine that the relevant location was curtilage. Id. at 1670-71. In sum, Collins does not support defendant’s sweeping position that proximity to the home is determinative of the curtilage inquiry.

Defendant further argues that it is “patently unfair” for the court to find that portions of his driveway are not part of the curtilage of his home because defendant did not argue or solicit testimony on the issue at evidentiary hearing. This argument falters for several reasons. It is defendant’s burden to show that the Fourth Amendment protects his interest in the place searched. United States v. Bullard, 645 F.3d 237, 242 (4th Cir. 2011). Defendant placed the issue of whether his vehicle was parked within the curtilage before the court and implicitly addressed the issue of curtilage both in briefing and at evidentiary hearing by focusing on the proximity of defendant’s car to the home. … The government also never conceded the issue of whether the area searched is curtilage, and defendant was further heard in opposition to the government’s supplemental response explicitly challenging his curtilage argument following hearing. For all these reasons, the court is not precluded from passing on defendant’s legal argument.

In sum, Vithalani and Sultan circling defendant’s vehicle was not an unlicensed trespass into the curtilage of defendant’s home. Rather, the two were in an undeveloped, unenclosed open field abutting the public road and right next to defendant’s home.