Curtilage: the expectation of privacy in the yard.

The English common law tradition of protecting the home against government intrusions existed long before this great republic was founded. William Pitt's 1763 address before the House of Commons in England perhaps best expresses the special status of the home. "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; but the King of England cannot enter - all his force dares not cross the threshold of the mined tenement."(1)

America's founding fathers embodied this tradition in the Fourth Amendment, which recognizes the right of the people to be secure in their houses from unreasonable searches and seizures. The U.S. Supreme Court has interpreted the Fourth Amendment as providing the greatest degree of protection against government encroachment to the home. For Fourth Amendment purposes, that area immediately surrounding the home, the curtilage, has customarily been viewed as part of the home.(2) This article explores the limits of the protection afforded the curtilage.(3)

The area that is outside the curtilage of the home, Which courts refer to as an open field, is not protected by the Fourth Amendment.(4) "Open field" is a term of art; for an area to be considered an open field, it need not be in the open nor a field.(5)

The U.S. Supreme Court has ruled that "...in the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment."(6) A property owner cannot add to the constitutional protection of an open field or change its character to that of curtilage by posting "No Trespassing" signs at its boundaries.(7) The scope of the protection given an area does not depend on whether the owner has attempted to conceal some private conduct.(8) Rather, the courts inquire into whether the government has intruded upon the owner's subjective and personal expectation of privacy and whether that expectation is one that society accepts as reasonable.(9)

If an officer trespasses onto another's curtilage, that trespass would be a search if it was in an area of the curtilage where the owner has a reasonable expectation of privacy. If, however, an officer trespasses onto an open field, that will not be considered a search in a federal case, because an open field is not protected by the Fourth Amendment.(10) A few states, however, have chosen to disregard that federal rule as a matter of state law and have granted protection from police trespass in areas outside the curtilage.(11) State limitations on police conduct would apply only to that state's prosecutions; such limitations, to the extent that they differ from the federal standard, would not be relevant in federal prosecutions.

Curtilage Defined

Because curtilage is given Fourth Amendment protection, and in all federal and most state cases an open field is not, it is important to know where the curtilage ends and the open field begins. Once the boundaries of the curtilage are set, the area that is an open field also will be defined because an open field is simply that area that lies outside the curtilage. The focus of the inquiry, therefore, should be on the curtilage.

The U.S. Supreme Court has described the curtilage as "the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life."'(12) The boundaries of the curtilage for most homes are readily apparent. However, not every home is surrounded by property where the private boundaries are readily apparent. In United States v. Dunn,(13) the U.S. Supreme Court set forth four factors to be considered when deciding whether an area is within the curtilage of the home: 1) what is the proximity of the area to the home, 2) is the area within the same enclosure as the home, 3) what is the nature of the use to which the area is put, and 4) what steps have been taken by the resident to protect the area from the view of passersby?

In Dunn, several DEA special agents and officers from the Houston Police Department crossed a perimeter fence that surrounded two barns and a house. They then walked onto the defendant's property and smelled the odor of precursor chemicals used in the manufacture of illegal drugs coming from one of the barns. based on that and other information, they obtained a search warrant and found sufficient evidence in the barn to convict the defendant of manufacturing illegal drugs.

The Dunn Court ruled that the barn was not within the curtilage of the house. Located on a 198-acre ranch, the barn was 60 yards from the house and 50 yards from a second fence surrounding the house. There was no indication that the barn was being used for those intimate activities normally associated with the home, and the defendant had not taken sufficient steps to protect the barn area from those standing in the open field. Finally, the fences were of the type to corral cattle and not those normally used to block the view of the public.(14)

Because the barn was in an open field, the officers did not violate the Fourth Amendment when they walked onto the defendant's property to get to the barn.(15) The inside of the barn, however, was protected by the Fourth Amendment.(16) based on the facts in this case, it was necessary for the officers to obtain a search warrant before they could lawfully enter the barn.

Under Dunn, in order for property to be considered curtilage it must be appurtenant to a residential building. If there is no residence on the property, then the property will be considered an open field. For example, in Foley v. Kentucky,(17) the police, acting on a tip and without a warrant, dug up a large septic tank that was buried on the defendant's father's property. In the tank they found the bodies of four murder victims. The Supreme Court of Kentucky upheld the warrantless unearthing of the septic tank and affirmed the defendant's murder conviction and death sentence. Although the septic tank was located close to a neighbor's cabin, the property on which the tank was found did not have a dwelling. The court ruled, therefore, that the tank was in an open field and not protected by the Fourth Amendment.

In Foley, the property was in a sparsely populated rural area, but at least one court has held that a fenced vacant lot in a densely populated urban area will also be considered an open field. In O'Neal v. Florida,(18) the police opened a gate and walked onto a fenced vacant lot and discovered a stolen vehicle and other stolen property. The court ruled that the fenced lot was an open field because it did not have a residence on it.

Commercial Property

The U.S. Supreme Court has recognized that "[t]he businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property."(19) While this statement of general principle applies to the interior of a business, the courts have not given the same protection to the land surrounding a business as they traditionally have given to the curtilage of a home. Implicit in the Dunn decision is the conclusion that a barn used in a commercial enterprise has no curtilage of its own.(20) The property around a business is not like the area around a home; it does not harbor those intimate activities associated with the privacies of life and the sanctity of the home. As a matter of federal constitutional law, most courts have limited the application of the curtilage principles to homes and do not recognize commercial curtilages.(21)

What protection, if any, is given to the area surrounding a business if it is not considered a curtilage? In Illinois v. Janis,(22) the Supreme Court of Illinois ruled that although the outdoor area surrounding a commercial establishment does not constitute a curtilage, the business' expectation of privacy in that area will be protected by the Fourth Amendment if the business takes affirmative steps to bar the public from that area.(23)

Similarly, in United States v. Hall,(24) the U.S. Court of Appeals for the Eleventh Circuit ruled that the property surrounding a business is not curtilage and that property will be given Fourth Amendment protection only if the business takes affirmative steps to bar the public from those premises? In Hall, a U.S. Customs agent drove 40 yards down a private road to a dumpster located near a company parking area. The agent reached into the dumpster and seized a bag containing shredded documents that established probable cause for a subsequently obtained search warrant for that business. The defendant was ultimately indicted and convicted for selling restricted arms to Iran. He appealed his conviction, claiming that the initial search of the dumpster was an unlawful intrusion into his commercial curtilage.

The court determined that, although the road that the agent traveled on was private, there were no signs or barricades that would indicate that the public was prohibited from entering the area. The road appeared to be a public road, and the agent believed it to be so at the time. Because the company had taken no affirmative steps to keep the public out, the court ruled that the company's subjective expectation of privacy in the contents of the trash found on the property was not an expectation that society would accept as objectively reasonable.

Peering into the Curtilage

The Fourth Amendment only provides protection for police conduct that is a search or seizure. If the police peer into the curtilage of the home, it does not necessarily indicate that the police have conducted a search. A search under the Fourth Amendment is defined as an intrusion by the government into an area in which a person has a reasonable expectation of privacy.(26) It is well established that "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."(27) Police conduct will not be considered a search, even though they look into the curtilage of the home, if that area of the curtilage is exposed to public view.

For example, in California v. Ciraolo,(28) the police received an anonymous tip that marijuana was growing in Ciraolo's yard. The police were unable to see into the yard, because it was surrounded by a 6-foot outer privacy fence and a 10-foot inner privacy fence. They decided to fly an airplane over the suspect's home at an altitude of 1,000 feet and take pictures of the marijuana growing within the curtilage. The U.S. Supreme Court ruled that, because any private aircraft could have flown over the house, Ciraolo's expectation that the marijuana would not be observed from the air was unreasonable and therefore was not an expectation of privacy that society was prepared to honor. If the police are traveling in a public thoroughfare or in navigable airspace, they are not required to shield their eyes when passing by a home or yard. There is no expectation of privacy where an area of the curtilage is open to public view.

The Ciraolo decision makes it clear that the sighting of evidence on the curtilage need not be inadvertent. Courts will allow observations of the curtilage even if significant steps have been taken in order to make the observations. For instance, in Wisconsin v. Kennedy,(29) the Court of Appeals of Wisconsin held that a county welfare fraud investigator did not violate the defendant's Fourth Amendment rights when he used binoculars to see into the curtilage from a position on the defendant's property that was outside the curtilage.

What if, instead of trespassing onto an open field, an officer trespasses on a neighbor's curtilage in order to peer into the defendant's property? In Sarantopoulos v. Florida,(30) an officer saw several marijuana plants growing in the defendant's backyard. In order to see the marijuana, the officer went onto the yard of the defendant's neighbor without the neighbor's permission and stood on his tiptoes to look over a 6-foot privacy fence that surrounded the defendant's property. The Supreme Court of Florida ruled that the officer's conduct did not violate the Constitution because the defendant did not have a reasonable expectation that someone would not try to peek over his fence.

Physical Entry onto the Curtilage

Simply because an area is open to observation, however, does not mean that it is open to physical intrusion. Although individuals may not have an expectation that the public will not look at their property, they may have a reasonable expectation that the public will not walk or otherwise physically intrude onto their property. Any police search without a warrant in an area on the curtilage where a person has a reasonable expectation of privacy is presumed unreasonable. That presumption of unreasonableness, however, is rebuttable. A warrantless intrusion onto premises is constitutionally permissible if the resident gives consent or exigent circumstances exist, such as: 1) an officer's reasonable belief that evidence may be imminently destroyed;(31) 2) hot pursuit of a suspect whom officers reasonably believe is in the area to be searched;(32) 3) a search where there is an immediate need to protect or preserve life;(33) or 4) a protective sweep of premises where officers reasonably suspect there is a threat to their safety.(34)

In Massachusetts v. Straw,(35) the police went to the defendant's residence to arrest him on the authority of a warrant for assault with intent to commit murder. As the officers spoke with the defendant's mother at the front door, the defendant threw a briefcase out a second-story window. An officer, who had taken a position in the back of the house, saw the briefcase fly out of the window and land 6 to 10 feet from the house in the fenced backyard. The backyard was adjacent to the sidewalk but separated from it by a wrought iron fence. The officer entered the backyard, opened the briefcase, and found over 200 grams of cocaine inside it.

In Straw, the Supreme Judicial Court of Massachusetts ruled that the defendant's intentions were not to abandon the briefcase but to prevent the police from finding it so that he could retrieve it later.(36) The court felt that the defendant had the same reasonable expectation of privacy in his fenced backyard as he had inside his house. Even though the public could see the backyard from the adjacent sidewalk, people had no lawful physical access to the backyard. The court, however, stated that it was lawful for the officer to enter the yard without a search warrant and seize the briefcase because there was an emergency. It was reasonable to believe that the defendant's family might recover the briefcase and hide or destroy its contents.

The court, though, ultimately held that the officer unlawfully opened the briefcase because once he had it in his custody the emergency had passed. The court felt that the officer should have obtained a warrant before opening it. The evidence found in the briefcase, therefore, was suppressed and the defendant's conviction for trafficking in cocaine was reversed.

In Straw, the defendant attempted to hide evidence on his own fenced curtilage. In United States v. Morgan,(37) however, the suspect threw a bag containing two handguns and $6,000 in cash from a recent robbery next to the back porch in an acquaintance's yard as he attempted to run from the police. The yard abutted an open field. The U.S. Court of Appeals for the Tenth Circuit found that by throwing the bag into the yard, the defendant, had abandoned the property. The court stated that the bag was plainly visible to the public, and his ability to recover the bag depended entirely upon the absence of inquisitive passersby.

Areas Within the Curtilage that are Implicitly Open to the Public

Not every physical intrusion onto a curtilage will be viewed as a search. Generally, the courts will not give the same level of protection to a home's front yard as they would give to a home's fenced backyard. The design of many front yards, with walkways leading to the front door, implicitly invites the public to walk onto the front yard, at least insofar as the walkway allows them to get to the front door. In United States v. Tobin,(38) the full bench of the U.S. Court of Appeals for the Eleventh Circuit stated that "there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's 'castle' with the honest intent of asking questions of the occupant thereof - whether the questioner be a pollster, a salesman or an officer of the law."(39)

In Jenkins v. Georgia,(40) the court held that "[w]here a police officer enters upon private property only to the extent of knocking on outer doors, the Fourth Amendment is not violated....After all, such an officer is merely taking the same route as would any guest or other caller."(41)

Driveways, like walkways, are commonly used by neighbors, mail carriers, salespeople, and other visitors as an access route to the house. The courts typically allow police officers the same right to enter onto a driveway as any other member of the public.(42) In North Dakota v. Winkler,(43) the police were investigating a hit and run collision. They drove 200 feet up the defendant's driveway and shined their headlights into his open garage. The Supreme Court of North Dakota found that, although the police drove onto the defendant's curtilage, they did not intrude into a private area of the curtilage. The driveway was implicitly open to the public and anyone could have driven up the driveway just as the officers had done. That is not to say that homeowners must take affirmative steps to keep the public out of the curtilage before they will be afforded protection of that area under the Fourth Amendment.(44) If an area of the curtilage is not implicitly open to the public then the resident will have a protected right to privacy in that area.

In New Hampshire v. Pinkham,(45) an officer drove to the defendant's home after a citizen complained that the defendant may have been driving drunk. The officer got out of his police cruiser and walked onto the curtilage and up to the defendant, who was sitting in his car. The car was parked in his driveway, within 10 to 15 feet of the house. The Supreme Court of New Hampshire ruled that, as a matter of state law, there was an implied invitation for any member of the public to use the driveway as an access route to the house. The court noted that the view of the driveway from the road was not blocked by shrubbery or the house. In addition, entry into the driveway was not prohibited by a gate or "No Trespassing" signs. The court concluded that it was not necessary for the officer to obtain a search warrant before walking onto the driveway.

Retrieving Trash from the Curtilage

The U.S. Supreme Court, in California v. Greenwood,(46) ruled that a person does not have a reasonable expectation of privacy in garbage that has been left at the curb for collection. Consequently, it would not be a Fourth Amendment search if the police retrieved the trash from the curbside. Would it be proper for the police to enter onto the curtilage to retrieve trash that has not been put at the curb for collection? The Greenwood Court did not address that issue, so we must look to the state courts and lower federal courts to answer that question.

In United States v. Hedrick,(47) the defendant kept his garbage in a fixed area on his driveway 50 feet from the house, 20 feet from an unattached garage, and 18 feet from the sidewalk. The U.S. Court of Appeals for the Seventh Circuit ruled that the police did not conduct a search when they went onto his property to retrieve the garbage on the evening prior to the regularly scheduled garbage collection. The court held that the defendant had no reasonable expectation of privacy in garbage left in that area, even though it was on his curtilage, because there was no fence or other barrier securing the area, and it was readily accessible to children, scavengers, snoops, or other members of the public. Other courts have noted that scavenging animals are not familiar with the curtilage rule of the Fourth Amendment and ordinarily cannot be relied upon to abide by it. "Urban raccoons are particularly skillful in ignoring the Fourth Amendment even when the garbage is secreted in a can with a lid. The attractive contents likely will soon be neatly spread out by ingenious and industrious raccoons for all to see."(48)

A resident's expectation of privacy in areas on the curtilage increases the closer the area is to the house or the garage. If the area is not accessible to the public, then an intrusion by the police into that area will constitute a search under the Fourth Amendment. For example, in United States v. Certain Real Property at 987 Fisher Road,(49) the U.S. District Court for the Eastern District of Michigan was faced with an issue involving valet garbage pick up. The sanitation workers in that city drove scooters into the yards to pick up the garbage and then dump it into the larger truck waiting on the street.

In the Fisher Road decision, the court disapproved of a police officer portraying a sanitation worker and driving a scooter into the backyard of a residence to pick up the garbage bags from the back wall of the house on the scheduled day for trash pickup. The court held that closed trash bags in the backyard of the curtilage are entitled to Fourth Amendment protection from police intrusion until they either are taken to the curbside or removed from the premises by the owner or trash collector. Because the police in Fisher Road did not have a warrant and there was no applicable exception to the warrant requirement, the evidence found in the trash was suppressed.

The court in Fisher Road focused on the fact that it was the officer himself who intruded onto the defendant's property. In North Carolina v. Hauser,(50) a police officer, rather than going into the yard himself, requested that a sanitation worker pick up the trash from the back of the defendant's residence on the appointed pickup day and deliver it to the officer. The Supreme Court of North Carolina approved of that tactic because the trash was collected from the curtilage by the regular garbage collector, in the usual manner, on the scheduled collection day.(51)

Conclusion

The area immediately surrounding the home, known as the curtilage, is protected under the Fourth Amendment from unreasonable government intrusions. If, however, there is an area within the curtilage that is implicitly open to the public, such as a walkway to the front door, then it would not be considered a search if the police exercised the same freedom to walk on the curtilage as is implicitly granted to the public. The courts will also protect the property surrounding a business. Unlike the area around a home, however, owners of commercial property must take affirmative steps to keep the public out of an area in order to protect their constitutional privacy interest in that area. Any intrusion without a warrant onto the property around a home or business where a person has a reasonable expectation of privacy is presumed unreasonable and must be justified through one of the recognized exceptions to the search warrant requirement.

Endnotes

1 The Oxford Dictionary of Quotations 379 (2d ed. 1953), quoted in United States v. Ross, 456 U.S. 798, 822, n. 31 (1982).

2 Oliver v. United States, 466 U.S. 170, 180 (1984).

3 See also John Gales Sauls, "Curtilage, The Fourth Amendment in the Garden," FBI Law Enforcement Bulletin, May 1990, 26-32, for a comprehensive review of the pre- 1990 cases involving curtilage issues.

4 Hester v. United States, 265 U.S. 57, 59 (1924); Oliver v. United States, 466 U.S. 170 (1984); United States v. Mckeever, 5 F.3d 863, 867-68 (5th Cir. 1993).

5 Oliver, 466 U.S. at 180, n. 11.

6 Id. at 183-84.

7 Id. at 182.

8 Id. at 182.

9 Id. at 182-83.

10 Id. at 182-83.

11 E.g., New York v. Scott, 593 N.E.2d 1328, 1330 (N.Y. 1992); Montana v. Bullock 901 P.2d 61, 75-76 (Mont. 1995) (the Supreme Court of Montana interpreted the Montana State Constitution to mean that persons may have a reasonable expectation of privacy in their areas of land that are beyond the curtilage if there are fences, "No Trespassing" signs, or other indications that entry is forbidden).

12 Oliver, 466 U.S. at 180 (quoting Boyd v. United States, 116 U.S. 616 (1886)).

13 480 U.S. 294, 301 (1987).

14 See also United States v. Depew, 8 F.3d 1424 (9th Cir. 1993). In Depew, the U.S. Court of Appeals for the Ninth Circuit applied the Dunn factors and determined that an area 50 to 60 feet from a house, within 6 feet of the entrance of the garage but outside a low picket fence that surrounded the house, was within the curtilage of the home. The court noted that the defendant was a practicing nudist who purchased the house because the yard was not visible from the road. An officer walked approximately 120 yards from the road up to the garage on a ruse that his car had broken down on the road. While standing on the property the officer smelled the odor of marijuana, which was the basis for a subsequently obtained search warrant. The police seized 1,000 marijuana plants, which the court then suppressed as the fruit of the initial illegal search. United States v. Jenkins, 124 F.3d 768 (6th Cir. 1997) (area in backyard fenced on three sides was within curtilage).

15 Not all barns will be considered outside the curtilage. The test under Dunn is a totality of the circumstances test, a distinction in any one of the operative facts could result in a different outcome. In Pennsylvania v. Rood, 686 A.2d 442 (Pa. Commw. 1996), appeal denied, 699 A.2d 736 (Pa. 1997), for instance, the barn was close to the house, although the court's opinion did not indicate the distance, and the court ruled that it was within the curtilage. See also United States v. Reilly, 76 F.3d 1271, reh'g granted, aff'd on reh'g, 91 F.3d 331 (2d Cir. 1996) (outcome of case not altered on rehearing) (cottage that was 375 feet from the house was within the curtilage of the house).

16 See also United States v. Santa Maria, 15 F.3d 879, 882-83 (9th Cir. 1994).

17 953 S.W. 2d 924. 934 (Ky. 1997).

18 689 So. 2d 1135 (Fla. App. 4th Dist. 1997).

19 See v. Seattle. 387 U.S. 541, 543 (1967).

20 480 U.S. at 303-04.

21 See Dew Chemical v. United States, 476 U.S. 227, 236-39 (1986). In Dow, the U.S. Supreme Court ruled that an industrial plant complex with numerous plant structures covering an area of over 2,000 acres falls somewhere between an open field and curtilage. The Dew Court ultimately ruled that, when subjected to aerial surveillance, the land surrounding the buildings was more comparable to an open field than to the curtilage of a home. But cf. United States v. Seidel. 794 F. Supp. 1098, 1104-05 (S.D. Fla. 1992) (the court ruled that the Dunn factors are applicable to the "commercial curtilage" of a small wholesale nursery business); Pearl Meadow Mushroom Farm Inc. v. Nelson, 723 F. Supp 432, 440 (N.D. Cal. 1989) (The court adapted the Dunn factors to apply to "commercial curtilage" in a civil action against Immigration and Naturalization Service agents. The court, however, limited the Fourth Amendment protection to those areas where steps had been taken to prevent public intrusion.).

22 565 N.E.2d 633 (111. 1990).

23 See also Massachusetts v. Krisko Corp., 653 N.E.2d 579 (Mass. 1995). In Krisko, the owner of commercial property took affirmative steps to bar the public from access to his trash dumpster by installing gates at both ends of a fenced alley adjacent to his business. He only opened the gates when the trash hauler arrived to pick up the trash. The Supreme Court of Massachusetts ruled that a state environmental engineer conducted an unreasonable search when, without a search warrant, she climbed into the dumpster and seized paint cans containing hazardous waste.

24 47 F.3d 1091 (11th Cir.), cert. denied, 116 S. Ct. 71 (1995).

25 Id. at 1097. See also Air Pollution Variance Board of Colorado v. Western Alfalfa Corp., 416 U.S. 861,865 (1974) (The Court ruled that a Health Department field inspector who walked on business property did not conduct a search. That finding was in part because he was on premises from which the public had not been excluded.); See v. Seattle, 387 U.S. 541, 545-46 (1967) (the Court ruled that a fire inspector must obtain a warrant or have the owner's consent before conducting an inspection of an area on the premises of a business that is not open to the public).

26 Katz v. United States, 389 U.S. 347 (1967).

27 Id. at 351.

28 476 U.S. 207 (1986).

29 535 N.W.2d 43 (Wis. App. 1995).

30 629 So. 2d 121 (Fla. 1993).

31 Schmerber v. California, 384 U.S. 757 (1966), Ker v. California, 374 U.S. 23 (1963) (plurality opinion).

32 Warden v. Hayden, 387 U.S. 294 (1967).

33 See Mincey v. Arizona, 437 U.S. 385, 392-93 (1978), citing Michigan v. Tyler, 436 U.S. 499, 509-10 (1978). See also United States v. Mayes, 670 F.2d 126 (9th Cir. 1982).

34 Maryland v. Buie, 494 U.S. 325 (1990).

35 665 N.E.2d 80 (Mass. 1996).

36 Id. at 83. See also Smith v. Ohio, 494 U.S. 541,543-44 (1990) (a suspect who throws a bag inside his car has not abandoned the bag).

37 936 F.2d 1561 (10th Cir. 1991), cert. denied, 502 U.S. 1102 (1992).

38 923 F.2d 1506 (11th Cir.) (en banc), cert. denied, 502 U.S. 907 (1991).

39 Id. at 1511 (quoting Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964)).

40 477 S.E.2d 911, 912 (Ga. App. 1996).

41 Id.

42 E.g., New Hampshire v. Pinkham, 679 A.2d 589, 591 (N.H. 1996); Maisano v Welcher, 940 F.2d 499, 503 (9th Cir. 1991); United States v. Smith, 783 F.2d 648, 650 (6th Cir. 1986).

43 552 N.W.2d 347, 352 (N.D. 1996).

44 Washington v. Hoke, 866 P.2d 670, 675 (Wash. 1994).

45 679 A.2d 589 (N.H. 1996).

46 486 U.S. 35 (1988). The Greenwood decision was not followed on state law grounds in the following cases: Vermont v. Morris, 680 A.2d 90 (Vt. 1996); New Jersey v. Hempele, 576 A.2d 793 (N.J. 1990): Washington v. Boland, 800 P.2d 1112 (Wash. 1990).

47 922 F.2d 396 (7th Cir. 1991), cert. denied, 502 U.S. 847 (1991). See also United States v. Shanks, 97 F.3d 977 (7th Cir. 1996), cert. denied, 117 S. Ct. 1002 (1997).

48 United States v. Redmon, 117 F.3d 1036, 1038, n. 2 (7th Cir. 1997), vacated for hearing en banc, 122 F.3d 1081 (1997). In Redmon, "[t]he defendant, Joseph Redmon, deposited his trust and his cocaine accessories in his garbage cans. That was a mistake. The police got to his garbage cans before the garbage collectors." Redmon sought to distinguish his case from the Greenwood decision by pointing out that his garbage cans were still on the curtilage of his townhouse and were not left at the curb. The Redmon court stated that it appeared that the garbage cans were not within the curtilage of the townhouse, but that even if they were on the curtilage, Redmon had no reasonable expectation of privacy in that area. The cans were located on the driveway, immediately outside his attached two-car garage, which he shared with another townhouse. The only approach to his front door required that visitors walk up the driveway to a walkway that ran along the side of the garage. Walkways to and from a front door, although on private property, are generally regarded as open to the public. The court pointed out that visitors to both Redmon's townhouse and his neighbor's townhouse would use that driveway and that Redmon had no control over visitors to his neighbor's townhouse. Therefore, the area was open to the public. A dissenting judge in Redmon argued that the trash cans were on the curtilage of Redmon's home and that he had a reasonable expectation of privacy in that area. The Redmon decision has since been vacated. The entire bench of the United States Court of Appeals for the Seventh Circuit will review the case and issue a superseding opinion. As of the date of the drafting of this article, the superseding opinion had not yet been issued.

49 719 F. Supp. 1396 (E.D. Mich. 1989).

50 464 S.E.2d 443 (N.C. 1995).

51 See also Crocker v. Wyoming, 477 P.2d 122, 125 (Wyo. 1970); and United States v. Bionich, 652 F.2d 743 (8th Cir.), cert. denied, 454 U.S. 975 (1981).

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Special Agent Edward M. Hendrie, Drug Enforcement Administration, is a legal instructor at the FBI Academy.