CA8: Police violated curtilage going on driveway to back yard

Police violated curtilage without a warrant or consent when they went down defendant’s unpaved driveway to the back of his house. “Because we treat curtilage as part of the home, Oliver, 466 U.S. at 180, those same rules apply here.” United States v. Wells, 648 F.3d 671 (8th Cir. 2011). Applying the Dunn factors:

A reasonable expectation of privacy will not always be an expectation of absolute privacy. See, e.g., Katz v. United States, 389 U.S. 347, 349-52 (1967) (“[Katz] was as visible after he entered [the telephone booth] as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen.”). Certainly Wells would have no cause to complain had the officers, standing in the public street, observed him openly cooking methamphetamine on the unpaved driveway, just as he would have no cause to complain had the officers observed the same through an open window in his home. “The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.” Ciraolo, 476 U.S. at 213.

But an officer’s ability to observe through open windows what happens inside a home does not altogether extinguish the homeowner’s otherwise reasonable expectation of privacy in the home itself. Not even probable cause, absent an exigent circumstance, would permit an officer to enter that home without a warrant to make an arrest or seize contraband. See Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971) (“[P]lain view alone is never enough to justify the warrantless seizure of evidence. … [It] may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.”). That a homeowner exposes some portion of his dwelling to public view is not a license for officers to treat it as public space.

Similarly, we think that a homeowner may expose portions of the curtilage of his home to public view while still maintaining some expectation of privacy in those areas. In this case, for example, Wells certainly exposed his unpaved driveway to public view, and therefore could not reasonably expect that members of the public would not observe whatever he might do there. But he could reasonably expect that members of the public would not traipse down the drive to the back corner of his home, from where they could freely observe his entire backyard. Accord Garrott, 745 F. Supp. 2d at 1213 (“Though the yard was visible from beyond the fence, it is important to distinguish the physical invasion into defendants’ backyard that took place in this case from visual inspection from a lawful vantage point.” (internal quotation marks omitted)). We therefore will not accord this fourth factor the controlling weight the government’s position requires.