W.D.La.: Drug dog could be used on car stopped in owner’s driveway

Defendant was stopped in his driveway and a drug dog was used. The driveway was not “curtilage” for the purposes of barring using a drug dog on the curtilage. United States v. Beene, 2013 U.S. Dist. LEXIS 139311 (W.D. La. September 24, 2013):

Notwithstanding our finding of a lawful stop, the Court will now address the parties’ arguments regarding the location of the vehicle and whether its position in the driveway brought the vehicle within the curtilage of Defendant Beene’s residence. We find, for the reasons that follow, that the vehicle was not parked within the home’s curtilage.

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In assessing the facts of this case in light of the four factors enunciated above, it is helpful to explore how other courts have conducted similar analyses. In United States v. Moffitt, 233 F. App’x 409, 411 (5th Cir. 2007), the Fifth Circuit held that a defendant’s driveway and yard were “not areas ‘so intimately tied to the home’ that they [were] protected curtilage.” Although the court found that the first two factors weighed in favor of the area being curtilage —the driveway was directly next to the house and defendant had enclosed the yard and house with a chain-link fence—the area was not curtilage because of the nature to which it was put to use. Id. “[The defendant’s] driveway and front yard were access areas for visitors to enter and knock on the front door.” Id. at 411-12. If “various members of society may enter his property, [the defendant] should find it equally likely that the police…will do so.” Id. at 412. The defendant also failed the fourth factor, in that he did not take sufficient steps to protect the alleged curtilage from observation by passers-by because the chain-link fence was see-through, providing no protection from outside observation. Id.

Likewise, the Middle District of Louisiana recently found that a defendant’s driveway was not part of the curtilage, where the driveway extended hundreds of feet out to a public roadway; neither the defendant’s home nor the driveway were enclosed; the defendant did not use the driveway for any intimate purpose; and the defendant did not take any steps to shield the driveway from observation by passers-by. United States v. Ardoin, No. 10-29-JJB-CN, 2010 WL 4056191, at *3 (M.D. La. Oct. 14, 2010). Simmilarly, in United States v. Alvarez, 213 F.3d 636 (5th Cir. 2000), the Fifth Circuit upheld the trial court’s finding that the defendant’s driveway was not within the home’s curtilage, because the driveway was open to the plain view and use of passers-by in that the defendant had not taken steps to enclose it. See also United States v. Kessler, 165 F.3d 24 (5th Cir. 1998)(defendant’s driveway not curtilage where fence enclosed a much larger area than the house itself, driveway was used by visitors and others for access to house, gates to the driveway were open, and owner had not taken any steps to indicate permission was necessary before using driveway); United States v. Ramirez, 145 F. App’x 915, 921 (5th Cir. 2005) (finding that a drainage canal was not within curtilage of the defendant’s home where the canal was not within an enclosure surrounding the house, was not used by the defendant for any intimate purpose, and was accessible to the public from public streets).