D.Mass.: Apt’s breezeway is curtilage, but officers get qualified immunity

The court concludes that plaintiff’s apartment’s breezeway is curtilage, but the officers get qualified immunity because there’s no case on point. They remained there after being told to leave. Sabey v. Butterfield, 2026 U.S. Dist. LEXIS 52309 (D. Mass. Mar. 13, 2026):

Neither the Supreme Court nor the First Circuit has answered the question of whether “a tenant’s ‘dwelling’ can[] reasonably be said to extend beyond his own apartment and … any separate areas subject to his exclusive control.” United States v. Cruz Pagan, 537 F.2d 554, 558 (1st Cir. 1976) (quoting Commonwealth v. Thomas, 358 Mass. 771, 267 N.E.2d 489, 491 (Mass. 1971)); see United States v. Bain, 874 F.3d 1, 14 n.6 (1st Cir. 2017). Generally speaking, in determining the extent of a home’s curtilage, courts assess (1) “the proximity of the area claimed to be curtilage to the home”; (2) “whether the area is included within an enclosure surrounding the home”; (3) “the nature of the uses to which the area is put”; and (4) “the steps taken by the resident to protect the area from observation by people passing by.” United States v. Mumme, 985 F.3d 25, 40 (1st Cir. 2021) (quoting United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987)). These factors weigh in Plaintiffs’ favor. The breezeway was directly adjacent to Plaintiffs’ apartment door, was an enclosed space, was used by Plaintiffs for storage while rarely being used by the upstairs tenants, and was accessible to the public only through an exterior door which Plaintiffs often locked at night. Based on the above factors, the Court therefore concludes that the breezeway was part of Plaintiffs’ curtilage.

But Count I fails at the second step of the qualified immunity inquiry: No clearly established law placed a reasonable officer on notice that the breezeway was curtilage. Plaintiffs fail to “identify a case” from the First Circuit holding that any area outside an apartment door (or its lock, see Bain, 874 F.3d at 14-15) — let alone an area accessible to other tenants — can be curtilage. Rivas-Villegas, 595 U.S. at 6. Plaintiffs point to French v. Merrill, but that case involved a “dwelling [with] a single front entryway” and a “single kitchen.” 15 F.4th 116, 122 (1st Cir. 2021); see id. (“[Defendants] describe [Plaintiff]’s residence as ‘more akin to an apartment building’ — presumably compared to a single-family home — but they fail to further explain that comparison.”).

Nor was there “a robust ‘consensus of cases of persuasive authority'” in July 2022 indicating that the breezeway was curtilage. al-Kidd, 563 U.S. at 742 (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999)). Circuit courts have varied in their treatment of whether shared spaces can constitute curtilage. Compare, e.g., United States v. Hopkins, 824 F.3d 726, 732 (8th Cir. 2016) (holding that area “six to eight inches” from townhouse door was curtilage despite being shared by two neighbors), with, e.g., United States v. Jackson, 728 F.3d 367, 373-74 (4th Cir. 2013) (holding that grass between sidewalk and apartment’s back patio was not curtilage, including because it was shared by other tenants). Indeed, at least one circuit has held that “common property” can rarely, if ever, be curtilage, and has stated that the “general consensus [is] that common areas shared by all tenants of an apartment building usually will not qualify as … curtilage.” United States v. Johnson, 148 F.4th 287, 295 (4th Cir. 2025) (emphasis omitted), petition for cert. filed, No. 25-774 (U.S. Jan. 2, 2026). It thus was not clearly established that Defendants were intruding on Plaintiffs’ curtilage. The Court therefore will enter summary judgment for Defendants on Count I.