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Expectation of Privacy – Curtilage – (Attached) Garage

State v. Walter Leutenegger2004 WI App 127
For Leutenegger: Bill Ginsberg

Issue/Holding: ¶21 n. 5:

The State does not challenge the circuit court’s holding that the garage was part of the curtilage of Leutenegger’s house and subject to the warrant requirement. This implicit concession appears appropriate in this case. Published decisions on this topic consistently hold that an attached garage is part of the curtilage. See Los Angeles Police Protective League v. Gates, 907 F.2d 879, 885 (9th Cir. 1990); State v. Pink, 648 N.W.2d 107, 109 (Iowa 2002). We caution, however, that such determinations are fact specific and, in a particular case, a house and attached garage may be situated such that entry through an open garage door to an “exterior” house door within the garage may appear to be the least intrusive means of establishing contact with an occupant. Under such circumstances, an attached garage might be considered non-curtilage for the limited purpose of making contact with an occupant, similar to some porches. See United States v. Santana, 427 U.S. 38, 42 (1976); State v. Potter, 72 S.W.3d 307, 313-14 (Mo. Ct. App. 2002).

If the point is to remind that access to a house ought to be by ” least intrusive means,” then the question is still begged: the issue is whether there’s an invitation of public access, not whether one means of uninvited access is less intrusive than another. Moreover, it may be imaginable that some house, somewhere, affords public access through an attached garage, but the possibility seems unlikely enough to warrant this footnote — which probably explains why, as the footnote concedes, published decisions “consistently” hold an attached garage to be within the curtilage. E.g., State v. Kitchen, 1997 ND 241, ¶17, 572 N.W.2d 106 (attached garage distinguished from “small attached entryway” re: expectation of privacy).

Nor do the cases cited in the footnote explain when a garage is or isn’t regarded as curtilage. Potter is a search warrant case (police authorized to search garage under authority of warrant precisely becauseit was curtilage). Santana says that if you voluntarily stand in the open doorway of your home you’re relinquishing your right to privacy, such that the police can arrest you (assuming cause, of course).

Santana doesn’t quite cover Leutenegger’s situation because he was inside the garage, not standing in its doorway. The underlying principle has been termed the “doorway exception,” and a number of courts, including State v. James L. Larson, 2003 WI App 150, refuse to apply it when you answer the door in response to the police. This is, however, not exactly uncontroversial: there is authority for the idea that when someone “voluntarily” opens the door to a police knock, the police may indeed frisk that person inside the doorway, State v. Mann, CT SCt No. SC 16996, 10/5/04, on less than probable cause. Contrast, State v. Cranford, 2005-Ohio-1904, ¶¶14-18 (merely opening door to police knock didn’t expose occupant to “public view,” so as to allow police to enter and make warrantless arrest, at least where occupant didn’t actually “step[] into the open doorway or exit[] her home”). The Supreme Court will eventually have to resolve the “doorway exception,” but for present purposes you can see that we’re getting somewhat afield from the undisputed notion thatLeutenegger’s garage was within the curtilage of his home; and that’s why the footnote might be regarded as gratuitous.

UPDATE: For a more refined analysis of what constitutes garage-as-curtilage, see State v. Trusiani, 2004 ME 107:

[¶10] In Oliver v. United States, the United States Supreme Court held that the Fourth Amendment protects the curtilage of a house from unreasonable searches and seizures. 466 U.S. 170, 180 (1984). The definition of curtilage was explored in United States v. Dunn, 480 U.S. 294 (1987), where the Court developed a test for determining what constitutes the curtilage of the home, requiring the consideration of four factors:

the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. Id. at 301.

[¶11] Using this test, the garage was within the curtilage of Trusiani’s mother’s home. The garage was attached to the home. It was used for storage, and it housed a working refrigerator and a freezer. Although the garage had windows, the vehicle and passage doors to the garage were closed. …

As Trusiani goes on to point out, a determination of “curtilage” hardly ends the analysis — “the State is allowed to intrude into the home’s curtilage under certain circumstances, including accessing the entry to a dwelling while conducting legitimate law enforcement activities,” ¶15. The question thus becomes whether the walkway, albeit part of the curtilage, is tantamount to an implied invitation, such that the police do have the right to enter the curtilage, “that right is restricted to areas that are the ‘normal route of access’ for visitors .” ¶¶17-19. In Trusiani’s instance, his family used the garage to enter the house, but it wasn’t a normal access route for visitors, hence police entry of the garage was unlawful. See alsoState v. Jenkins, 2007 Op. No. 30, ID SCT No. 33347, 2/21/07 ( “Jenkins’ garage was part and parcel of the structure constituting his home, and was secured with a door closed at the time police arrived at the home. On the facts of this case, Jenkins had a reasonable expectation of privacy in his temporarily opened attached garage, and this space was subject to Fourth Amendment protection.”).

Same sort of analysis, but different result on the facts, albeit not a garage-entry case: Trimble v. State, Ind SCt No. 40S01-0602-CR-64, 2/21/06 (“However, police entry onto private property and their observations do not violate the Fourth Amendment when the police have a legitimate investigatory purpose for being on the property and limit their entry to places visitors would be expected to go, such as walkways, driveways, and porches.”), reversing Trimble v. State, 816 N.E.2d 83 (App 2004). The court of appeals had held that the police should have approached via the front door rather than the back but the supreme court ruled that the police were allowed to go to the back door because the “driveway … wrapped around the back of Trimble’s house,” and “(m)ost of the traffic to Trimble’s house goes to the back door.” Both of these courts stressed that the issue of whether “a given piece of real estate may reasonably be viewed as open to visitors is fact-specific.”

For detailed discussion with a number of cites on “implied invitation” doctrine, see Robinson v. State, 45 Va App 592, 612 S.E.2d 751 (2005). (See also discussion re: Larson and “Threshold of Residence,” below, on “implied invitation” doctrine.) Indeed, as the Robinson dissent makes clear, the implied invitation doctrine is to a large extent the rationale authorizing the “knock and talk” practice which is increasingly referred to in the caselaw. Note as well that Robinson was upheld on en banc review, 1/31/06, in a lengthy opinion which among others makes the following general points:

It is generally recognized that, absent any affirmative attempts to discourage trespassers, owners or possessors of private property impliedly consent to have members of the general public intrude upon certain, limited areas of their property. …This invitation, where it exists, extends only to those areas of the property that would be used when approaching the residence in an ordinary attempt to speak with the occupants. See id. Thus, areas of the curtilage that a visitor could reasonably be expected to cross when approaching the front door—for example, the driveway, front sidewalk, and front porch—are generally exempted from Fourth Amendment protection….

The landowner’s implied consent is generally presumed to exist absent evidence of an affirmative intent to exclude the public from the premises….

As for knock-and-talk, see e.g., U.S. v. Taylor, 11th Cir No. 05-10648, 7/28/06 (“a minor departure from the front door under these circumstances does not remove the initial entry from the ‘knock and talk’ exception to the warrant requirement”). But see, State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998) (“One of Ferrier’s contentions is that the so-called ‘knock and talk’ procedure employed by the police officers to obtain her consent to the search is violative of both the state and federal constitutions. … We conclude that because Ferrier had heightened privacy rights in her home, as guaranteed by article I, section 7 of our state constitution, she should have been informed that she need not consent to the search.”).

And see State v. Silva, Or App No A120338, 2/2/05 (to effect that intrusion onto curtilage presumptively trespass; mere existence of gate, path, etc., insufficient to defeat presumption); State v. Pierce, OR App No. A131475, 3/4/09 (similarly: “Approaches to points on the property other than a front door, however, are generally not regarded as being approaches to which the occupant has implicitly consented.” That is, entry onto property by means other than approaching front door is presumptive trespass, albeit rebuttably so.); Leach v. Commonwwealth, KY App NO. 2006-CA-001481-MR, 7/20/07 (“the officer may [execute knock-and-talk at back door] only if the front door is inaccessible or if they first knocked on the front door and got no response”).

For conclusion that officer’s penetration of front porch was proper because it was “an entryway,” hence resident had no reasonable expectation of privacy, see State v. Edgeberg, 188 Wis. 2d 339, 524 N.W.2d 911 (1994) (i.e., stressing that porch afforded “normal mean of access to and from house”; as contrasted, interestingly, from “a closed garage”). To like effect, with survey of cases, seePeople v. Tierney, MI App No. 252185, 6/14/05; U.S. v. Titemore, 2nd Cir No. 05-1380-cr, 2/9/06 (officer’s approach, across lawn and up porch, permissible because within “principal entranceway” to house; very detailed discussion of curtilage doctrine, synthesized as: “when a police officer enters private property for a legitimate law enforcement purpose and embarks only upon places visitors could be expected to go, ‘observations made from such vantage points are not covered by the Fourth Amendment'”). But see, State v. Peterson, 2007-Ohio-5667 (during knock-and-talk operation one officer went up to the side of residence, where there was no driveway or sidewalk: this violated occupant’s expectation of privacy such that officer’s observations couldn’t be considered in plain view).

For authority that a detached garage was within the curtilage of the home, see Bies v. State, 76 Wis.2d 457, 462-63, 251 N.W.2d 461 (1977). Result similar to BiesState v. Buzzard, 2005-Ohio-5270 (peering into garage through 1/4-inch crack violated expectation of privacy).

For idea that absence of closed gate generally amounts to invitation to public to enter along driveway and portion of yard adjacent to front door of residence: U.S. v. Lakoskey, 8th Cir No. 05-3389, 9/14/06.

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