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Expectation of Privacy – Curtilage – Backyard area

State v. Michael Wilson, 229 Wis.2d 256, 600 N.W.2d 14 (Ct. App. 1999)
For Wilson: Martha A. Askins, SPD, Madison Appellate.

Issue/Holding: Officer’s invasion of home’s curtilage, where he smelled marijuana burning inside, held unlawful. Court enumerates various factors relevant to extent of curtilage protection, and stresses that fourth amendment protects both home and area around it. In this case, the officer went into a backyard area where children played, and the back door “is intimately related to the home itself[.]” For these and other reasons, the court finds that the officer penetrated the curtilage when he discovered the odor of marijuana. His intrusion was therefore unlawful. (Note: presumably, this illegal entry tainted everything that followed, but the court doesn’t analyze the issue this way, instead seeming to suggest that only the “discovery of the marijuana odor was without legal justification.”)

For a relatively detailed discussion of the considerations which go into whether a back-yard area is “curtilage” or “open field,” see Trimble v. State, 816 N.E.2d 83 (Ind. App. 2004), stressing that the backyard and area immediately surrounding the home are extensions of the dwelling, reversed on other groundsTrimble v. State, Ind SCt No. 40S01-0602-CR-64, 2/21/06. See also Hardesty v. Hamburg Township, 6th Cir No. 05-1346, 9/1/06 (“the backyard of a home is part of the curtilage”; but: court goes on to uphold police “officers’ decision to proceed around the house to seek out a back door [as being] within the scope of the knock and talk investigative technique”); State v. Silva, Or App No A120338, 2/2/05 (where backyard fenced from adjoining property, and back door not visible from front door or any other area accessible to public, police committed trespass by entering backyard without warrant); State v. Hemphill, LA App No. 41,526-KW, 11/17/06 (shed in yard deemed within curtilage: “defendant had a heightened expectation of privacy in his yard. The yard was partially enclosed and fenced, and distinguishable from adjoining agricultural fields. The shed itself was partially obscured from view by the fence and vegetation”).


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