Andrew Sandlin | When is Property Considered “Curtilage” Subject to Fourth Amendment Protection from Unreasonable Search and Seizure?

Background

In the 1924 case Hester v. United States, the Supreme Court made a distinction between so-called “open fields” and the areas afforded protection under the Fourth Amendment. This Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” U.S. Const. amend. IV.  While not explicitly using the word “curtilage,” Justice Holmes refers to a distinction between the “special protection” given by the Fourth Amendment to the people [to be secure] in their 'persons, houses, papers and effects,'” and that this protection is not extended to the open fields. Hester v. United States, 265 U.S. 57, 59 (1924).

Citing Blackstone’s commentaries, the distinction between the two was as “old as the common law” to Justice Holmes. Id. This doctrine of distinguishing between open fields and protected areas was again applied and given more substance in Oliver v. United States. There, the Court referenced and defined curtilage as “land immediately surrounding and associated with the home.” Oliver v. United States, 466 U.S. 170, 180 (1984). From there, it became that the curtilage of one’s home would be given Fourth Amendment protection from unreasonable search and seizure, while areas classified as open fields would not.  Some questions were still left unanswered in Oliver, however. To the Court in Oliver, what constitutes curtilage was an easy question, informed by “our daily experience.” Oliver, 466 U. S., at 182, n. 12. Some questions still emanated from the Court’s opinion in Oliver, however. At least some of these questions were resolved in United States v. Dunn, which perhaps serves as the most substantive case on what constitutes curtilage. There, the Court found that the relevant factors in determining curtilage are:

(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. Dunn, 480 U.S. 294, 301 (1987).

Justice White’s opinion gives much focus to what the officers in question knew at the time they conducted the search of the area. See Dunn, 480 U.S. at 302. It was “especially significant that the law enforcement officials possessed objective data indicating that the barn was not being used for intimate activities of the home.” Id. When analyzing these facts, the Court found that the activities the area was being used for “could not fairly be characterized as so associated with the activities and privacies of domestic life.” Dunn, 480 U.S. at 303. Important here is that Justice White found that the officers would not have believed that the areas was being used for domestic activities based on these facts.

Justice Scalia’s concurrence takes issue with the majority’s use of the “objective” phrasing. Dunn, 480 U.S. at 305 (Scalia, J. concurring). To Justice Scalia, what mattered when reaching an answer on the third Dunn factor was the fact that the area was in fact not being used for “intimate activities of the home,” otherwise known as the “actual use” approach. Id. This led to the concurrence joining all parts of the opinion except the majority’s application of this factor. Id.[AS1] 

It is important to note that the Dunn factors are not the exclusive way to determine curtilage, but when circuits do apply them, they have done so differently. The circuits have found room for interpretation amongst the factors, particularly with regards to the third factor concerning the use of the area. This third factor simply (or not so simply) asks whether the owner of the property uses it for private domestic use.

Issue

When analyzing whether property is part of a home’s curtilage and a warrant is required to search it, should courts look at how the homeowner actually uses the property (the actual use approach) or how the objective, reasonable officer would view it (the objective approach)?

The Split

The standard for determining what constitutes curtilage has divided the Circuits. The definition of curtilage might have been set out in Oliver, and the Court may have provided guidance in Dunn, but about the method in which what standard to employ for answering the question of whether property fits into this definition are more nuanced.

Both sides of this split have used language from Dunn to support their position. Firstly, when setting out the four factor test, the opinion uses the language of “the nature of the uses to which the area is put.”  Dunn, 480 U.S. at 301. This has served as the basis for some circuits joining the actual use approach. United States v. Reilly, 76 F.3d 1271, 1278 (2nd. Cir. 1996) (finding that the Court’s phrasing of the third Dunn factor referred to the actual use of the property).

The First and Second Circuits

The Second Circuit is coupled with the First Circuit in applying the “actual use” approach. In United States v. Reilly, the Second Circuit cited Justice Scalia’s concurrence in Dunn when determining whether a small cottage that the defendant used for a variety of purposes qualified as curtilage. United States v. Reilly, 76 F.3d 1271, 1278 (2nd. Cir. 1996). The Court in Reilly took the “actual use” language from Justice Scalia’s concurrence in Dunn to find that the actual use test served as the best method for determining the third factor. Id at 1278-1279. In United States v. Diehl, the First Circuit sided with the actual use test, also relying on Justice Scalia’s Dunn concurrence. United States v. Diehl, 276 F.3d 32, 40 (1st Cir. 2002). The Diehl opinion offers a rebuke to the objective approach, arguing that the method “turn[s] the concept upside down, presuming the absence of curtilage until and unless the contrary appears.” Id. at 40-41.

The Sixth and Eighth Circuits

The Sixth Circuit and Eighth Circuits divert from the “actual use” approach, thereby applying the objective approach to determining the question of curtilage. In Daughenbaugh v. City of Tiffin, the Sixth Circuit joined the objective approach group when it ruled that the appellee police department did not possess sufficient knowledge to lead them to objectively believe that “Daughenbaugh used…his property for anything other than domestic activities.” Daughenbaugh v. City of Tiffin, 150 F.3d 594, 600 (6th Cir. 1998). Present in Daughenbaugh is also the issue of when officers discover information regarding the property owner’s use of the area. There, the officers did not observe the contents of the claimed curtilage until they had already entered the area constituting curtilage. Id. Therefore, the knowledge obtained at this point could “not be considered as a part of the officers' objective knowledge.” Id. This timing issue also guided the 8th Circuit’s application of the Dunn factors in United States v. Gerard. There, the Court found that absent the knowledge gained after invading appellee’s property, a reasonable officer would have believed that the property was being used for “private activities.” United States v. Gerard, 362 F.3d 484, 488 (8th Cir. 2004). Coupling the two representative cases of Daughenbaugh and Gerard, the objective analysis relies on determining whether a reasonable officer would have believed that the property in question was being used for private domestic activity.

The Third Circuit

Finally, the Third Circuit recognized the split amongst the Circuits and formally joined the objective approach group in the case of United States v. Moses, decided earlier this year. In Moses, the Third Circuit analyzed a search in which a police officer pulled over a driver suspected of smoking marijuana. United States v. Moses, 142 F.4th 126 (3rd Cir. 2025). The issue was that Moses, the suspect, pulled into his own driveaway in response to the officer’s request to pull over. Id. This led the officer to walk up the driveaway, confront Moses, and find a handgun Moses was prohibited from possessing in the vehicle. Id at 128. At the district court, Moses filed a motion to suppress the handgun, arguing that the officer had invaded the curtilage of his home without a warrant. Id. The district court denied the motion to suppress, resulting in Moses’ appeal to the Third Circuit. Id. The Court affirmed, and in doing so, firmly joined the objective approach group and its approach to curtilage. The opinion gives two reasons for reaching this conclusion. First, according to the Court, the factor was framed and analyzed using “objective” data in Dunn. Moses, 142 F.4th at 134. Second, the Court read the Dunn opinion to consider the other factors in light of objective evidence and how it would appear to a reasonable officer. Id. In applying the objective approach to the facts of this case, the Third Circuit found that there was no sign that Moses used the driveway for anything other than parking vehicles, and that act of parking vehicles is not “domestic or private.” Id. Based on this finding, coupled with the analysis of the other factors, the court ruled that Moses’ driveway was not curtilage.

Looking Forward

Earlier, I stated that the Dunn factors are not the only way to determine whether an area is protected curtilage. One of the Supreme Court’s more recent cases on this issue used the “daily experience” language mentioned in Oliver in deciding the issue and did not even mention Dunn. Florida v. Jardines, 569 U.S. 1, 7 (2013). The Third Circuit in Moses applied the daily experience test before even reaching the Dunn factors, Moses 142 F.4 at 131, although it found that Dunn “reinforced” its view. Id. at 133. This being said, curtilage can be litigated and decided using various methods, and the objective vs. actual use debate only applies if and when a court decides to use Dunn. It is difficult to speculate on how the Supreme Court would rule should parties be granted certiorari on the issue. Florida v. Jardines was decided by a very different court in which the opinion was written by Justice Scalia. An even more recent case, Collins v. Virginia, similarly makes no mention of the Dunn factors, but rather also applied the “daily experience” language from Oliver. Collins v. Virginia, 584 U.S. 586, 593 (2018).

Moses filed a petition for writ of certiorari after the Third Circuit’s decision. Naturally, Moses argues against the lower court’s decision and in favor of the actual use approach. Petition for Writ of Certiorari, Moses, (No. 25-399). The petition argues that Dunn should be read to bolster actual use and that the text of the Fourth Amendment itself does not consider the knowledge of the officer conducting the search. Id. at 20-23. Ultimately, it is difficult to speculate on whether the Court will grant the petition, and if it does, how it will rule.

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