Fourth Amendment protection does not necessarily begin at the threshold of the front door. The area immediately surrounding and associated with a home—known as the curtilage—can receive constitutional protection. An officer's physical location when making an observation can be critically important to search-and-seizure analysis.
In many criminal defense investigations, the defense must examine not only what an officer claims to have observed but precisely where the officer was standing when the observation supposedly occurred.
Fourth Amendment Protection Does Not Stop at the Front Door
When courts speak of a home receiving Fourth Amendment protection, they are not referring solely to the interior of the structure. The area immediately surrounding a home and closely associated with its use can also receive constitutional protection.
This makes intuitive sense. A residential property ordinarily includes not only the dwelling itself but also surrounding land used for purposes associated with the home—a driveway, a porch, a yard, or other areas where a family lives its domestic life.
Police action in these surrounding areas may raise Fourth Amendment questions. The specific questions depend upon the location, the officer's purpose, the manner in which the officer arrived at that location, and other circumstances.
What Is Curtilage?
The term curtilage refers to the area immediately surrounding a home that is considered part of the home for Fourth Amendment purposes. The curtilage is not an arbitrary boundary. Courts consider several factors when determining whether a particular area constitutes curtilage.
These factors generally include the proximity of the area to the home, whether the area is enclosed or protected, whether the homeowner uses the area for residential purposes, and the steps the homeowner has taken to protect the privacy of the area. Some areas close to a home may clearly constitute curtilage. Other areas may be more remote or clearly open to the public.
Whether a particular location qualifies as curtilage depends upon the specific circumstances and applicable law. The defense should analyze the particular location at issue based on the facts and circumstances present in the individual case.
Where Was the Officer Standing?
A recurring question in Taylor Defense Firm's approach to search-and-seizure cases is straightforward: do not merely ask what an officer says he saw. Determine precisely where the officer was standing when he saw it.
An officer might report observing something suspicious or concerning. But where was that officer located? Was the officer standing on a public sidewalk in front of the home? Was the officer on the lawn? In a backyard? Near a window? The officer's location matters.
Reconstructing an officer's location requires examining multiple sources of evidence. Body-camera video, if available, can show the route an officer took, where the officer stood, and the vantage point from which observations were made. Photographs and diagrams can help establish the physical layout of a property. Dispatch records and reports can establish the sequence of events. Witness testimony may corroborate or contradict what officers claim to have done.
The defense should work to recreate the scene and understand the officer's precise location and vantage point.
The Front Door and the Implied Invitation to Approach
The law generally recognizes that members of the public, including police officers, may approach a home's customary entrance. A residence ordinarily has certain areas—such as the front porch or front steps—to which visitors are impliedly invited.
An officer conducting a knock-and-talk investigation or attempting to serve documents may approach a residence in the ordinary manner a visitor might approach it. This limited ability to approach the front entrance for ordinary purposes does not, however, constitute unlimited permission to investigate or explore.
The implicit invitation extends to the normal route to the door and the customary entrance area. It does not necessarily extend to exploration of other portions of the property, side yards, backyards, or areas not ordinarily accessible to members of the public.
When a Knock-and-Talk Goes Beyond the Knock
An officer's approach to a home might begin lawfully—approaching the front door through an ordinary route—but then expand to include other portions of the property. The defense should examine whether officers remained on the normal route to the entrance or instead moved around the side of the house, entered a backyard, approached windows, or looked into areas not ordinarily accessible to visitors.
The critical question is whether the officer remained within the scope of ordinary visitor conduct or instead conducted a search or investigation of areas not ordinarily open to members of the public.
It is important to understand that the particular facts and applicable law control this analysis. The defense should not assume that any particular movement is automatically unconstitutional. However, the defense should carefully examine what the officer did, where the officer went, and how those actions compare to conduct ordinarily expected of visitors to a residential home.
Windows, Side Yards, Backyards, Porches, and Other Areas Around the Home
These areas surrounding a home can create important Fourth Amendment questions because they exist in the space between the purely private interior and purely public areas.
A porch or deck attached to the home receives strong constitutional protection because it is clearly part of the residential curtilage and closely associated with the home. A side yard or area behind the home may or may not constitute curtilage, depending on whether it is fenced, enclosed, secluded, or otherwise protected by the homeowner.
The analysis considers officer location, whether the area was accessible to the public, physical barriers such as fences or hedges, the proximity and relationship to the home, the use of the area by occupants, and other circumstances that indicate whether the homeowner intended and took steps to protect the privacy of that area.
An officer's movement into or observation from these areas may raise constitutional questions that deserve examination.
What an Officer Can See Versus Where the Officer Is Entitled to Be
A crucial distinction often overlooked is the difference between an object being visible and whether the officer was lawfully located at the vantage point from which the observation was made.
An officer might claim to have observed something through a window, from a backyard, or from some other location. The observation itself may be technically accurate—something was actually visible from that location. However, the critical question is whether the officer was entitled to be at that location in the first place.
For example, an officer might observe suspicious activity by standing in a backyard enclosed by a fence. The officer's observation might be accurate. But was the officer lawfully entitled to be in that enclosed backyard? If the answer is no, then the observation may be problematic from a constitutional standpoint, even if what was observed was real.
The defense investigation should examine both components: what was allegedly visible and whether the officer was lawfully present at the vantage point from which the observation was made.
Why Body-Camera Video Can Matter
Body-camera footage provides an objective, video record of an officer's movements, location, and vantage point. It can show the exact route an officer took, where the officer stood, which doors or windows the officer approached, what could actually be seen from particular locations, and the sequence and timing of events.
An officer's written report might summarize an observation without fully depicting the physical circumstances under which it occurred. A report might state, "Upon approaching the residence, I observed suspicious activity," without conveying the exact location from which the observation was made or the circumstances of the officer's presence at that location.
Body-camera video, by contrast, shows what actually happened. It can reveal whether the officer remained on the normal route to the door or instead moved through areas not ordinarily accessible to visitors. It can show precisely where the officer stood, what the officer could actually see from that location, and the layout and configuration of the property.
When body-camera video exists, it is often critical to obtain and carefully review it in connection with search-and-seizure analysis.
When an Observation Becomes Part of a Search-Warrant Affidavit
An officer's observations, including observations made from locations that may be constitutionally questionable, may later be included in an affidavit offered to establish probable cause for a search warrant.
If an important observation supporting the probable cause for a warrant was made from a constitutionally questionable vantage point, the significance depends upon several factors. Was the observation material to the probable cause analysis? Did the affidavit rely upon the observation in establishing probable cause? Are there independent bases for probable cause that do not rely upon the potentially problematic observation?
The defense may need to determine what significance constitutional issues regarding officer location have for the subsequent warrant and any evidence obtained pursuant to it. The analysis is fact-specific and depends upon the particular circumstances, the role of the observation in establishing probable cause, and applicable law.
As always, the defense should avoid categorical assumptions about suppression and instead analyze the specific facts and applicable legal principles.
Location Matters
In a search-and-seizure case involving observations made outside a home, the critical questions extend beyond the police report's narrative summary.
The defense should not merely ask: "What did the officer see?"
The defense should also ask:
Where was the officer standing? How did the officer get there? Was that location part of the normal route available to visitors? What could actually be seen from that position? Was the observation later used to justify a search warrant? And what evidence—body-camera video, photographs, dispatch records, reports, witness testimony—can establish the officer's precise location and vantage point?
Careful reconstruction of the physical scene, the officer's route, and the officer's vantage point can reveal Fourth Amendment issues that may not be apparent from simply reading a police report or officer affidavit.
The curtilage surrounding a home, and an officer's location within or observation of that curtilage, deserves careful examination when search-and-seizure issues are part of a criminal defense.