The police didn’t enter the curtilage of Dickenson’s home or commit a trespass by walking up her driveway toward the back of her house.
Police were trying to locate Dickenson after finding her car in a snowbank. Two officers went to her home; one approached the front door while the other (Officer Koester) walked up the driveway toward the backyard. When Koester reached the back of the house he saw and man and woman on the back deck; Koester told them he wanted to speak with Dickenson about the vehicle in the snowbank, and after Dickenson identified herself and answered questions she was arrested and charged with OWI. (¶¶2-7).
To help set the scene, here’s a Google Street View image of the address listed in Dickenson’s brief. (It’s the two-story white house.) Street view doesn’t go into the back yard, of course, but it shows the driveway Koester walked up. By moving down the block to the right one click, zooming in, and dragging the image a bit to the left you can see the deck railing. (Dickenson’s brief (at 7) says there’s a flight of stairs from the driveway to the deck, so the deck must be at the second story level.)
Dickenson move to suppress the evidence collected as a result of Koester’s actions on the grounds that Koester violated the Fourth Amendment because (1) Koester invaded the curtilage of her home; and (2) Koester trespassed on her property. The court of appeals rejects both claims.
First, the curtilage of a home is an area “of intimate activity … [where] there was a reasonable expectation of privacy,” and courts gauge whether an area is curtilage by considering: (1) the proximity of the area to the home; (2) whether the area is within an enclosure surrounding the home; (3) the nature and uses to which the area is put; and (4) the steps the resident takes to protect the area from observation by passersby. State v. Wilson, 229 Wis. 2d 256, 264-65, 600 N.W.2d 14 (Ct. App. 1999) (citing United States v. Dunn, 480 U.S. 294, 301 (1987)). Under this test, the deck on which Dickenson was sitting was curtilage because its placement in the immediate back of the home shows an intent to make it less visible and because decks are commonly used for private activities with family and friends. (¶12). But Koester didn’t proceed directly onto the deck; he hailed Dickenson from a place on the driveway that was not curtilage:
¶13 …. While the driveway was adjacent to the home, there is no evidence to suggest the location on the driveway where Koester was standing was within any type of enclosed setting. For example, there was no testimony of any gate, wall, fence, or other barrier which would create an enclosed area. Indeed, it appears from the evidence that Koester simply walked up to that location on the driveway completely unimpeded. The nature and use of the area where Koester was standing was that it was a driveway that would be used for ingress and egress to the front, side, and rear areas of the property by anyone living at or visiting the home, and the driveway continued past the back end area of the home toward a detached garage about two cars lengths farther up the driveway. Lastly, nothing in the record suggests Dickenson took any steps to “protect the area from observation by passersby.” The entrance of the driveway abutted up against the street, and there is nothing to suggest any passerby would not have been able to see the location where Koester was standing when he observed Dickenson. The deck where Dickenson was seated was “intimately connected with the home and the activities that normally go on there” such that it would reasonably be considered part of the home. …. The area where Koester was standing when he observed Dickenson was not so connected.
Because Koester was not on the curtilage when he saw Dickenson, Koester was lawfully permitted to be at that location and his plain-view observations of, and subsequent conversation with, Dickenson were likewise lawful. (¶¶14-16).
Second, Koester didn’t commit a trespass by walking down the driveway: “The driveway was an access point to the property and an area that could be readily utilized by visitors. It directly abutted the city street and was not, as a whole, a constitutionally protected area.” (¶20). Moreover, the court says, “Dickenson does not contend an officer’s, or other citizen’s, presence on all parts of the driveway would constitute trespass and provides no suggestion for how a reasonable person would know he or she had crossed the imaginary line on her driveway that would signal to the person that he or she had left the lawful area and become a trespasser.” (¶19).
According to the venerable LaFave, the cases applying the expectation of privacy test for curtilage generally hold that “when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment.” 1 Search and Seizure § 2.3(f) (5th ed. 2014) (footnotes omitted). But as LaFave also notes, id., §§2.3 (f) and 2.3(c), the general rule from those cases might have to be modified in light of Florida v. Jardines, 133 S. Ct. 1409 (2013), where the Court eschewed the expectation of privacy approach in favor of a property-rights analysis that asks whether the officer’s entry on the property was outside the householder’s “implicit license” to visitors to enter.
LaFave helpfully suggests, id., § 2.3(c), that the “implicit license” issue can be thought of in terms of who is allowed to enter, and where and when, and for what purpose. The last might be especially significant, for Jardines implies at points that the officer’s purpose in that case—to search with a drug-sniffing dog—would never be implicitly licensed, and that the same might hold true for any police information or evidence gathering. 133 S. Ct. at 1415-17. At this point, though, the import of Jardines is unclear, though—not surprisingly—the few post-Jardines decisions so far have not read the decision to modify the rule that an officer who is using a route of access anyone visiting the premises might employ can make observations from the vantage point of that route without violating the Fourth Amendment. See, e.g., United States v. Shuck, 713 F.3d 563, 567 (10th Cir. 2013); State v. Grice, 767 S.E.2d 312, 315-20 (N.C. 2015).
More surprising is that while Dickenson’s brief cites Jardines in support of both prongs of her argument, the court of appeals doesn’t bother to address the decision. In discussing Dickenson’s trespass argument, however, the court of appeals does echo Jardines by, as noted above, saying Dickenson hasn’t explained how a reasonable person would know he or she had crossed the line into trespassing—i.e., exceeded the scope of the implicit license of a visitor. It also addresses another case Dickenson cites, State v. Popp, 2014 WI App 100, ¶¶7, 20, 357 Wis. 2d 696, 855 N.W.2d 471, which itself relied on Jardines to hold that police officers trespassed when, without permission, they went up the back steps and onto the porch of home to peer into the window using a flashlight and walked on the grass and snow to another window and peered into that window, which had blinds that were closed but not fully functioning. The court concludes the facts in Popp are “markedly different” (¶18): Unlike that case, there’s no evidence Koester went onto the deck before engaging Dickenson in conversation from his location on the driveway; Dickenson never informed Koester that he couldn’t come onto the deck to continue the conversation; and Koester didn’t walk up to the house and attempt to “peer” inside through a window or otherwise impinge on the curtilage, nor did Koester use any extraordinary means or devices in order to observe Dickenson sitting on her deck. (¶¶18-19).
The upshot, then, is that for now an argument under Jardines (and Popp) won’t succeed unless the police did things well beyond the “implicit license” of an ordinary visitor. Thus, it’s crucial to explain what the police did that went beyond that implicit license; a conclusory claim that the police trespassed won’t be enough.