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Gravel extension of driveway isn’t part of curtilage

State v. Steven J. Schaefer, 2015AP2555-CR, District 3, 11/1/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Schaefer challenged evidence seized after he was arrested outside his home. He argued the arresting officer entered the curtilage of his home without a warrant. The court of appeals holds the area was not curtilage under the four-factor test established by United States v. Dunn, 480 U.S. 294 (1987).

The officer, who went to Schaefer’s house to investigate a harassment complaint, found Schaefer with his truck, which was parked on a gravel area next to his home. The gravel area extends from the end of an asphalt driveway, which runs from the street to a few feet shy of the front corner of the house. The gravel ends near the back corner of the house. There’s a side door to the house next to the gravel pad, and a front door that reached via a paved path from the driveway to the front door. On the other side of the gravel area is a picnic table, grill, and utility shed. (¶¶4-12).

The Dunn factors are: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included in 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 passersby. Dunn, 480 U.S. at 301. The first one supports Schaefer’s claim, but the remaining three don’t:

¶23     …[T]he circuit court found that the gravel strip is a continuation of the asphalt driveway leading to Schaefer’s residence and is essentially used as a “parking lot.” Those findings are supported by the suppression hearing testimony and are not clearly erroneous…. Under some circumstances, a driveway or parking area might be used for the sort of “intimate activities” that necessitate Fourth Amendment protection. See, e.g., United States v. Depew, 8 F.3d 1424, 1427-28 (9th Cir. 1993) (secluded driveway held to be within curtilage of home in part because the defendant was a practicing nudist whose property was remote, secluded, and shielded from public view), overruled on other grounds by United States v. Johnson, 256 F.3d 895, 913 n.4 (9th Cir. 2001). However, a driveway like the one in this case that is visible from the connected public road and is used for access to the residence and for parking cars does not “harbor[] those intimate activities associated with domestic life and the privacies of the home.” See Dunn, 480 U.S. at 301 n.4….

¶24    [Next], it is undisputed that neither Schaefer nor Tuckwab [who lives in the home with Schaefer] took any steps to protect the area in question from view by passersby. There are no signs advising visitors or law enforcement to stay out of the gravel strip. The area is visible from the public road and is not shielded from view by any type of fence, structure, or vegetation. Schaefer argues it would not have been convenient to erect a fence or plant bushes to protect the gravel strip from view because doing so would have interfered with snow plowing and firewood deliveries. Be that as it may, it does not change the fact that the area was not actually protected from view. Moreover, the fact that erecting barriers to protect the area from view would have inhibited third parties from accessing the area to plow snow and deliver firewood further suggests that the area was not the type of private space traditionally found to constitute curtilage….

The court also rejects Schaefer’s challenge to the forfeiture of his cash bond for failing to appear at a hearing. The circuit court’s forfeiture decision is discretionary and the lower court did not erroneously exercise its discretion in this case. (¶¶2, 15-16, 29-31). Note that Schaefer pled, but the court elects to address the bond forfeiture argument even though it may well have been waived by the plea. (¶17 n.4).

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