W.D.Va.: Quality of one’s landscaping doesn’t determine bounds of curtilage of home

The side and back yards of defendant’s property were curtilage. The knocker on the door, however, was an implied invitation to come to the front door recognized in Jardines. United States v. Jones, 2013 U.S. Dist. LEXIS 124261 (W.D. Va. August 30, 2013):

In considering the Dunn factors, I am compelled to conclude that the side and back yards are also curtilage. Regarding the first factor, the side and back yards are in direct contact and close proximity to the physical structure of Jones’s home. Pictures of the home show that the side yard is a narrow passageway around the house with no more than five feet separating the wall of the home from the densely wooded area that surrounds the home. (See, e.g., Aug. 12, 2013, Evidentiary Hr’g, Def. Ex. 4 [ECF No. 74-4]; Def. Mem. pg. 12-14.) The back yard, though considerably larger, is still in close proximity to the home. In fact, Officer O’Connell testified that the plants in Jones’s back yard were discovered in “very close proximity to the rear of the house.”

Secondly, although there is no fence surrounding the side or back yards, the yards are surrounded by densely wooded areas, which create a very real barrier around Jones’s home. (See Aug. 12, 2013, Evidentiary Hr’g, Gov. Exs. 1 & 2 [ECF Nos. 74-7, 74-8].) Additionally, the driveway and home were adorned with “No Trespassing” signs. (See Aug. 12, 2013, Evidentiary Hr’g, Def. Exs. 1-4 [ECF Nos. 74-1 thru 74-4].) While such signs do not, in and of themselves, create a right to privacy or automatically place an area under the Fourth Amendment’s protections, they do assist in creating a barrier to the property, albeit one that is not impenetrable. See, e.g., Oliver, 466 U.S. at 173 (holding that “No Trespassing” signs did not make an area subject to Fourth Amendment protections); Edens v. Kennedy, 112 Fed. App’x 870, 876 (4th Cir. 2004) (unpublished) (noting that there are “numerous cases upholding the entry of police officers into areas enclosed by fences or marked with ‘No Trespassing’ signs.”).

Considering the third Dunn factor, Jones had put the back yard to a use common of such areas; he planted plants there. The nature of the plants (marijuana) does not undercut his purpose. While the unkempt nature of the yard weighs in the Government’s favor, the Fourth Amendment’s protections do not turn on the quality of one’s landscaping.

Fourth and finally, Jones had taken numerous, reasonable steps to “protect the area from observation by people passing by.” Dunn, 480 U.S. at 301. The home was secluded in the woods; it was set at the end of a long driveway; it was surrounded on almost all four sides with dense trees and shrubbery (save for the driveway); he had posted numerous “No Trespassing” signs; and his driveway boasted gate posts and traffic pylons on either side. Short of a locked gate or fence surrounding his property, see Edens, 112 Fed. App’x at 875, I am hard-pressed to think of a home more unwelcome to passers-by.

Given that the area into which the officers entered was protected by the Fourth Amendment, the next question is of vital importance: was the entry onto Jones’s property reasonable? Jones argues that it was not because Officer O’Connell decided to go to Jones’s house “on a whim,” indicating that he had no suspicion of wrong-doing. The Government counters that the police had an implied license to enter Jones’s property.

Defendant’s argument presents a rule that is far too rigid. In fact, a rule requiring a level of suspicion in every instance has been flatly rejected time-and-time again. The Government’s argument, however, has merit.