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Fourth Amendment yard work: curtilage's mow-line rule.

INTRODUCTION
I. A GRAPHIC EVOLUTION OF THE FOURTH AMENDMENT HOUSE
 A. Defining the Fourth Amendment House
 B. Curtilage as a Boundary Within Which Structures Are Granted
 Protection
 C. Modern Curtilage: Curtilage Itself Gets Fourth Amendment
 Protection
 D. Curtilage Gets a z-Axis: Aerial Surveillance Cases
 E. Katz or Curtilage?
II. CUTTING OLIVER'S "CLEARLY MARKED" BOUNDARY WITH A LAWNMOWER
 A. Curtilage in a Nation Without Walls
 B. Weed in the Grass
 C. Mow-lines
 1. Keep off the grass
 2. On grass
III. Is LAWN PRIVACY REASONABLE?
 A. Brief History of Lawn Privacy
 B. Curtilage's Antiurban Bias
 C. 'Burb Curtilage
CONCLUSION


No, that's not in the curtilage, counsel.... That's too far ... [Ms. Chaussee] has drawn on her demonstrative exhibit No. 15 the area that is covered by not only the house and the shop, but I think by her lawn mower or weed whacker or whatever she uses in order to kind of keep things beat down, and at most, that would be the curtilage. (1)

INTRODUCTION

In 1999, the Museum of modern Art (MoMA) in New York hosted an exhibition entitled The Un-Private House. (2) MoMA claimed the exhibit laid the groundwork for the first architectural debate of the twenty-first century--how to define privacy in the house. Terence Riley, an architectural theorist and Chief Curator of MoMA's Department of Architecture and Design, declared, "Privacy is no longer drawn at the property line" (3) and argued that privacy in the American house was eroding. The evidence supporting this thesis came from twenty-six houses designed by prominent architects and gathered for the exhibit. Riley scrutinized these houses for architectural clues and concluded that the distinct line between the public and private zones of the past had become "blurred" and "fluid" in today's houses. (4)

During the past twenty years, courts across America have been actively engaged in a similar endeavor--looking for architectural clues and reading markers in the landscape to determine where the privacy of a house begins and ends. The stakes here, however, are higher than they are for architectural theorists. The line between public and private under the Fourth Amendment can determine whether an accused goes to prison or not. (5)

One can imagine that the house, as mentioned in the Constitution, might have a clear boundary--ending at the threshold (6) between inside and outside. In the Supreme Court's decision in Oliver v. United States, (7) however, the Court said that, for purposes of the Fourth Amendment, the house spills out-of-doors to a space called "the curtilage." (8) Under Oliver's modern definition of curtilage, (9) "house" now includes curtilage, (10) and because curtilage is a larger area than the physical structure of a house, one has to know how far the curtilage extends from the house to determine the scope of Fourth Amendment privacy. The majority in Oliver thought this inquiry would be easy. The Court stated, "for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage--as the area around the home to which the activity of home life extends--is a familiar one easily understood from our daily experience." (11)

But the curtilage's boundary was not as clearly marked as the Court thought. Four years after Oliver, the Court announced a curtilage standard in United States v. Dunn. (12) Under Dunn, the "extent-of-curtilage" (13) is analyzed through four factors:
 [1] [T]he proximity of the area claimed to be curtilage to the home,
 [2] whether the area is included within 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 people passing by. (14)


Since the common law, determining the curtilage has always involved looking to a house's landscape architecture. In England, where the idea of curtilage originated, the inquiry was simple: The curtilage included the buildings enclosed by the wall surrounding the house. America's residential landscape architecture, however, is different. Americans usually do not have walls or fences around their houses. (15) Therefore, under the Dunn standard, courts go looking for other architectural clues to determine the scope of the curtilage.

In looking for clear dividing lines like fences, walls, or other marks in the landscape to find the curtilage boundary, some courts are turning to a bright-line or mow-line rule--if officers set foot on mowed grass, then they have invaded the curtilage. (16) If "curtilage is the area to which extends the intimate activities associated with the sanctity of a man's home and the privacies of life and therefore has been considered part of the home itself for Fourth Amendment purposes," (17) is it reasonable that this area extends to the limit of where a homeowner takes the John Deere? This Note is an attempt to investigate the developing definition of curtilage and the questions it raises.

The Note is divided into three Parts. Part I traces the evolution of the Fourth Amendment house and curtilage graphically. Today, there is an overwhelming sense that zones of privacy are shrinking. (18) This Part examines how the Fourth Amendment zone of privacy may actually have expanded with the inclusion of modern curtilage into the definition of "house."

The curtilage doctrine was imported with the common law from England. Part II examines the difficulty in translating the doctrine into the American context and considers the heightened importance the war on drugs has placed on the curtilage boundary. In warrantless searches, police risk the exclusion of any evidence resulting from the search (19) and therefore they have an interest in staying off the curtilage. As this Part illustrates, the police often avoid entering mowed areas, and it often appears that courts rely, in part at least, on a mowline role to determine the extent of the curtilage.

Part III questions whether society is prepared to recognize lawn privacy as reasonable. In recent "aerial surveillance cases" and in Kyllo v. United States, (20) the Court suggested the appropriate inquiry for examining curtilage privacy is the Katz v. United States (21) two-part reasonableness framework. (22) In exploring the issue, this Part looks at lawn privacy historically, the antiurban character of curtilage, and briefly considers suburban curtilage.

I. A GRAPHIC EVOLUTION OF THE FOURTH AMENDMENT HOUSE

This Part graphically illustrates the evolution of the meaning of "houses" in the Fourth Amendment. In reviewing this history, this Part also questions two assumptions taken for granted today. The first assumption is that our zone of privacy is shrinking. (23) As the following analysis illuminates, with the addition of a modern understanding of curtilage, our constitutional zone of privacy around the house has actually expanded since the framing. The second assumption is that the common law meaning of "house" as applied to the Fourth Amendment included the curtilage. (24)

A. Defining the Fourth Amendment House

It may seem unnecessary today to analyze whether a structure is defined as a "house" or not (25) after the announcement in Katz v. United States (26) that the Fourth Amendment "protects people, not places." (27) But the inquiry into whether a structure is a house is important for two reasons. First, even after Katz, houses are viewed as having heightened Fourth Amendment protection. (28) Second, and more importantly for this Note, houses are the only structures that clearly have curtilage. (29) Therefore the discussion here begins with the question: What is a Fourth Amendment "house"?

[FIGURE 1 OMITTED]

This may seem like a simple question. After all, children draw pictures of them--the gabled roof, four windows, and smoke billowing out of the chimney. But certainly more than just architecture distinguishes houses from other kinds of places. The influential architect Le Corbusier defined a house as a place affording protection from outside observation. (30) The Constitution also defines a house as a place free from observation--it is the only place expressly granted Fourth Amendment protection from unreasonable searches. (31) Houses are especially private (32) places, and the Constitution underscores this point, (33) but the Constitution does not provide any clues as to what kind of places are Fourth Amendment "houses." In California v. Carney, (34) the United States Supreme Court confronted this house definition issue. (35)

The police searched Carney's Dodge motor home without a warrant, and Carney argued that the marijuana and paraphernalia found in the motor home should have been suppressed at trial under the Fourth Amendment. The California Supreme Court agreed, and it reversed the trial court's finding that the search was permitted under the "automobile exception" (36) and held that the motor home is "more properly treated as a residence." (37) In reaching its conclusion, the California court looked to the fact that Carney's motor home was "equipped with at least a bed, a refrigerator, a table, chairs, curtains and storage cabinets ... [that] created a setting that could accommodate most private activities normally conducted in a fixed home." (38) The fact that a motor home is a "repository of intimate effects," (39) that the interior is "often fully shielded from view by its design," (40) and its "outward appearance" (41) also led the court to determine the motor home was house-like and therefore protected.

The United States Supreme Court reversed the California Supreme Court and held that the motor home fell within the automobile exception because it was readily mobile and was in a place that indicated it was being used as a vehicle. (42) The important part of the Carney decision here is that the Court acknowledged that the "vehicle possessed some, if not many of the attributes of a home." (43) Unfortunately, the majority failed to elaborate on this statement, (44) but the dissent's opinion provides a glimpse into what the Court considers house-like attributes.

In the dissent's opinion, some structures are houses simply by their outward appearance or architecture. A "brick bungalow or a frame Victorian" clearly "serves as a permanent lifetime abode." (45) But even structures that do not match this archetype may be house-like because of the functions they contain. Focusing on this functionality inquiry, the dissent considered structures designed to accommodate a "breadth of ordinary everyday living" to be like houses. (46) Further, like the California Supreme Court, the dissent noted that the motor home contained "stuffed chairs [a]round a table; cupboards ... for storage of personal effects; bunk beds [for] sleeping ... and a refrigerator ... for food and beverages." (47)

Implicit in both the majority and dissenting opinions is the interplay between two factors--form and function--that suggest whether a structure qualifies for Fourth Amendment house protection. Under the first, or form factor, the greater the similarity of a structure to the archetypal home--"the brick bungalow or frame Victorian"--the more likely it will fall within the express protection of the Fourth Amendment. (48) When a structure deviates from the archetype, the Court looks to the function of the place. The majority found that Carney's motor home was more motor than home, and, therefore, its primary function placed it within the automobile exception. (49) The dissent on the other hand, thought the motor home was more home than motor. Carney's Dodge could accommodate a "wide range of private human activity"-sleeping, eating, storing personal effects--and was associated with a particular way of living. (50) On this basis, the dissent concluded the motor home functioned more like a dwelling than a vehicle.

While Carney is the only Supreme Court case where the definition of "house" was at issue, the lower courts have faced other problems in determining whether structures like tents (51) and caves (52) are sufficiently house like to receive constitutional protection. Because these structures deviate from the archetypal house, as in Carney, courts look to the functionality of a space to determine whether it qualifies as a Fourth Amendment "house." (53)

Finding or simply concluding that a structure is a house, however, is not the end of the inquiry to determine the scope of the house's Fourth Amendment privacy protection. The privacy of the house extends beyond the perimeter of its walls because courts have held that "house" in the Fourth Amendment means "house plus curtilage." (54) The following discussion begins the inquiry into what constitutes the curtilage.

B. Curtilage as a Boundary Within Which Structures Are Granted Protection

The idea of curtilage was imported with the common law from England. (55) At common law, the curtilage concept was a boundary within which structures were granted the same protection under the law of burglary as afforded to the house itself. (56) As Blackstone states, "And if the barn, stable, or warehouse, be parcel of the mansionhouse, though not under the same roof or contiguous, a burglary may be committed therein; for the capital house protects and privileges all its branches and appurtenants, if within the curtilage or homestall." (57)

In England, it was relatively simple to locate the curtilage boundary because it was collinear with the wall that surrounded most dwellings. (58) Turning to Figure 2, the curtilage boundary is represented as an imaginary dashed boundary line. The structures within this boundary at common law were considered part of the house for the law of burglary. Therefore, on Figure 2, the two structures outlined in a solid line would be considered part of the house, while the shed--represented with a dotted line--would not be part of the house.

[FIGURE 2 OMITTED]

As discussed below in Part II, the lack of walls or fences around houses in the United States has caused considerable problems establishing the extent of curtilage in America. (59) While the idea of the curtilage as a boundary within which structures are protected was originally applied in the burglary context, it was first read into the Fourth Amendment by the Supreme Court in Amos v. United States. (60)

In Amos, the defendant petitioned the trial court to return property that was going to be used against him at trial. The evidence was seized "in a search of defendant's house and store 'within his curtilage," made unlawfully and without warrant of any kind, in violation of his rights under the Fourth and Fifth Amendments." (61) The Supreme Court held that the petition should have been granted. (62)

Note that in both the burglary (63) and Fourth Amendment context under Amos, only structures are protected spaces. (64) Returning to Figure 2 for illustration, the ground area of the yard within the dashed boundary is not protected. (65) As is discussed next, not until dictum in Oliver v. United States (66) was there any suggestion that the curtilage yard was included within the Fourth Amendment's purview.

C. Modern Curtilage: Curtilage Itself Gets Fourth Amendment Protection

The preceding discussion illustrated that only physical structures were protected under the original meaning of curtilage as applied to the Fourth Amendment. (67) The Supreme Court in Oliver, however, announced (68) what is being labeled here the "modern curtilage doctrine." (69) Under this doctrine, structures within the curtilage and the lawn (70) of the curtilage itself are protected. Modern curtilage is a significant extension of the understanding of the Fourth Amendment because after Oliver, if officers without a warrant enter the curtilage (read: yard or lawn) of the house, (71) not just structures within the yard, any evidence found is subject to the exclusionary rule. (72) Figure 3 illustrates the modern curtilage. As in Figure 2, structures within the curtilage are still protected, but protection of the yard is added, as represented by the hatched lines. The unprotected space outside of the hatched area is "open field." (73)

[FIGURE 3 OMITTED]

In Oliver, police officers searched petitioners' (74) fields without a warrant and discovered patches of marijuana plants. Against a backdrop of the war on drugs, (75) and recent Court decisions admitting drug evidence in Fourth Amendment search cases, (76) the Court had to decide whether the search violated the Fourth Amendment. The petitioners raised a colorable argument under Katz that they had a reasonable expectation of privacy in the field--it was marked with a no trespassing sign, the entrance to the farm was secured with a gate, and the field itself was highly secluded. (77) In order to avoid excluding the evidence under Katz, the Court turned to the open field doctrine announced in Hester v. United States (78) and held that the field was not protected by the Fourth Amendment. (79)

As part of the Oliver majority opinion, the Court conceded that not all ground areas are "open fields" or places where people cannot expect privacy. The Court did this by announcing in dictum that the curtilage was still protected space. (80) Prior to this opinion, the curtilage doctrine had only been applied to structures around the house. (81) In this case, however, the marijuana was growing outside in a field. The Court's mention of the curtilage under Oliver's facts suggests that had the marijuana been growing in the house's curtilage (lawn), the warrantless search would have violated the Fourth Amendment and the evidence would have been suppressed.

The Oliver Court collaged three sources--Blackstone, Hester v. United States, (82) and Boyd v. United States (83)--to create the modern curtilage doctrine. It did this in two moves. First, the Court combined Blackstone and Hester to distinguish an open field from curtilage: "As Justice Holmes, writing for the Court, observed in Hester, the common law distinguished 'open fields' from the 'curtilage,' the land immediately surrounding and associated with the home." (84) The Court's second move used language from Boyd, (85) a case that never mentions curtilage, to define the curtilage as "the area to which extends the intimate activities associated with the 'sanctity of a man's home and the privacies of life' and therefore has been considered part of the home itself for Fourth Amendment purposes." (86) This modern curtilage was then defined as an "area immediately adjacent to the home." (87)

Courts interpreted Oliver's curtilage to mean that the Fourth Amendment protects the yard of the house. (88) Once the yard became part of the Fourth Amendment "house," determining the size of it became an important constitutional question. (89) According to Oliver, the inquiry would be easy since "for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage--as the area around the home to which the activity of home life extends--is a familiar one easily understood from our daily experience." (90)

In United States v. Dunn, (91) the Court tackled the issue of how far this modern curtilage extended. The line between curtilage and noncurtilage proved not as bright as the Court in Oliver assumed. As a result, the Court adopted a four-factor standard to resolve extent-of-curtilage questions. (92)

In defining the scope of the modern curtilage in Dunn, the Court did not consider the issue of whether spaces routinely accessed by the public were included within the Fourth Amendment's reach. (93) In the limited number of cases reaching this issue, courts have held that driveways, sidewalks, and frontentry walkways that are exposed to the public are not covered by the Fourth Amendment. (94) Figure 4 represents this by subtracting driveways and walkways from the scope of the curtilage.

[FIGURE 4 OMITTED]

D. Curtilage Gets a z-Axis: Aerial Surveillance Cases

Dunn created the standard for the horizontal reach of the modern curtilage--its x- and y-axes. Two subsequent Supreme Court aerial surveillance cases considered modern curtilage's ceiling. (95) By establishing a curtilage ceiling, as illustrated in Figure 5, the curtilage becomes a three-dimensional space that police may not enter without a warrant. (96)

[FIGURE 5 OMITTED]

The first aerial surveillance case, California v. Ciraolo, examined "whether naked-eye observation of the curtilage by police from an aircraft lawfully operating at an altitude of 1,000 feet" violated the Fourth Amendment. (97) The Court held under the second part of Katz (98) that there was no search and therefore no Fourth Amendment violation. (99) Although the Court did not set a curtilage ceiling, the opinion implies that entry into the airspace above the curtilage with a fixed-wing aircraft at some height between 0 and 1000 feet would constitute an unreasonable search. (100)

In the second case, Florida v. Riley, (101) the Court considered the following question: "[w]hether surveillance of the interior of a partially covered greenhouse in a residential backyard from the vantage point of a helicopter located 400 feet above the greenhouse constitutes a 'search' for which a warrant is required under the Fourth Amendment." (102) The Court held that it was not a search. (103) In reaching this result, a plurality of the Court suggested the test for an aerial surveillance search might hinge on whether the aircraft was in legally navigable airspace. (104) Justice O'Connor, concurring in the judgment, agreed with the plurality that there was no search based on Katz but rejected their reliance on whether the aircraft was flying at an altitude contrary to law. (105)

In rejecting the navigable airspace test, the Court again failed to establish a bright-line rule for the curtilage. Riley and Ciraolo held that there was no search and therefore the height of the ceiling is still in flux. However, what can be inferred from these decisions is that the curtilage protection, the z-axis in Figure 5, extends somewhere between 0 and 1000 feet for fixed-wing aircrafts, and between 0 and 400 feet for helicopters.

E. Katz or Curtilage?

Part I. A began (106) by suggesting that even with Katz's announcement that the Fourth Amendment "protects people not places," houses and their curtilage are a special kind of constitutional space. Houses are expressly mentioned in the Constitution, while phone booths and other spaces examined under the Katz rubric are not. Furthermore, the curtilage has its own special standard, (107) and three of the four factors of this standard are not about "people" but look to the character of a "place." (108) The aerial surveillance cases coupled with Kyllo v. United States (109)--the latest Supreme Court decision mentioning curtilage--however, suggest that curtilage's special status is being pulled into Katz's expanding reach. (110)

In Ciraolo and Riley, the Court could have added a fifth factor to Dunn to cover the vertical component of the curtilage. (111) Instead, the Court conceded that the area surveyed was within the curtilage (112) but relied on the second part of Katz to establish whether an expectation of privacy from the air is "one that society is prepared to honor." (113) Therefore, whether the police enter the airspace above the curtilage is a Katz rather than a curtilage question. By framing aerial surveillance as a Katz question, the Court takes the notion that houses are extraordinarily protected areas out of the inquiry (114)--curtilage viewed from above is looked at with the same Katz scrutiny as are other places such as phone booths.

In Kyllo, the Court held that the use of a thermal-imaging device aimed at a private home from a public street to detect the amount of heat within a home was a search. (115) What is relevant here is the Court's suggestion that Katz, not Dunn, is the appropriate test for determining whether a search of the curtilage has occurred. (116) If Oliver expressed the idea that "house" included curtilage for purposes of the Fourth Amendment, Kyllo, in contrast, unearths the pre-Oliver definition of house and suggests that the house ends at the threshold: "We have said that the Fourth Amendment draws 'a firm line at the entrance to the house.' That line, we think, must be not only firm but also bright...." (117) The implication of the aerial surveillance cases, combined with Kyllo, is that curtilage's status as a specially protected space is waning--the Court may be done with Dunn. In its place, the Court seems to be heading toward a Katz reasonableness framework for curtilage questions in the future.

II. CUTTING OLIVER'S "CLEARLY MARKED" BOUNDARY WITH A LAWNMOWER

In the brief history of the modern curtilage since Oliver, the Court has twice rejected a bright-line rule. (118) First, the Court rejected a "fence-line rule" in Dunn, (119) instead opting for a four-factor standard. Second, in the aerial surveillance cases, the Court failed to reach a majority for a navigable airspace rule to determine the height of curtilage protection. (120) The Court relied instead on the Katz reasonableness standard.

Before examining the mow-line analysis developing in some lower courts, this Part considers two developments leading up to the emphasis on mow-lines. First is the origin of curtilage in England and its failure to translate into the American landscape. Second is the importance of the curtilage boundary in the context of the war on drugs and the increase in domestic marijuana production.

A. Curtilage in a Nation Without Walls

Though curtilage is as old as the common law, (121) courts today still have difficulty defining it. The problem with curtilage is partially an architectural one. England's landscape architecture is different from America's landscape, making it difficult for our courts to translate the curtilage doctrine into the American context. (122)

In England, because of several enclosure acts, landholdings were traditionally surrounded by fences, walls, or hedgerows. (123) These elements compartmentalized the English landscape and made the boundary of the curtilage easy to find. The American landscape, however, is not so clearly divided. (124) Early in the twentieth century, American jurists noted the difference between England's landscape architecture and our own and concluded that this difference posed serious problems for the application of the curtilage doctrine. (125)

It was not until recently that the problem was highlighted. For one thing, the exclusionary role did not come into effect until the 1960s. For another, until Oliver's decision in 1984, the curtilage only protected structures. But the lawn's new Fourth Amendment status coupled with increased production of domestic marijuana has increased the amount of extent-of-curtilage cases. (126)

B. Weed in the Grass

If America's landscape architecture made it difficult to establish a clear curtilage boundary, its marijuana drug culture (127) has made it a pressing question. Ten to thirty million Americans are marijuana users, and up to half of the marijuana consumed in this country is homegrown by an estimated two million domestic growers. (128) The enormous domestic production resulted from a marijuana shortage in the early 1980s in tandem with the escalating price of the drug. (129)

As homegrown marijuana production increased, so did the government's crackdown. In 2000, there were 734,497 arrests for cannabis abuse violations. (130) In Indiana alone, the state's cannabis eradication program in 1997 identified 3000 domestic cultivators. (131) Nationally, the Drug Enforcement Agency ("DEA") initiated the Domestic Cannabis Eradication/Suppression Program (DCE/SP) in 1979. (132) The DCE/SP was responsible for the eradication of 3,068,632 cultivated outdoor marijuana plants in 2001. (133)

Marijuana cultivation increased the potential for illicit activity in the modern curtilage. Investigation of marijuana offenses often leads police to areas around the home where plants can be grown for personal use. As the curtilage doctrine makes clear, if the police enter the curtilage without a warrant, any evidence found in the curtilage is excludable under the Fourth Amendment. (134) Police, therefore, have an interest in knowing the limit of the curtilage. (135) After a police search of the curtilage, courts are often faced with determining whether the police stepped into or stayed out of the protected boundary. The four factors from Dunn help frame this inquiry. But the curtilage inquiry is about line-drawing, albeit imaginary, and so courts go looking for lines. (136) As noted above, many American houses do not have fence-lines, wall-lines, or hedge-lines, so courts occasionally use mow-lines to help resolve the curtilage boundary question.

C. Mow-lines

Although the term "mow-line" is not within the pages of Webster's or Black's Law Dictionary, the lines left in the wake of a lawnmower are part of America's popular culture. (137) Mowing patterns and striping have become commonplace on the turf of American professional athletic fields and suburban lawns. (138) Videogame manufacturers are incorporating patterned grass surfaces to make the games look more realistic. (139) There is even a book describing how to prepare the perfect grass-lawn canvas and inscribe patterns and lines on its surface. (140) In 2000, the touring international art exhibition entitled The American Home Lawn: Surfaces of Everyday Life included images of striped and patterned lawns. (141) With the popularity of golf in America, (142) more and more people are reading cut-lines in the grass--the divisions between the rough, fairway, apron, and fringe for example. (143) Courts also appear to be reading lines in the turf. Although only one opinion explicitly mentions the term "mow line," (144) as the cases below illustrate, the line separating a lawn from other unmanicured areas of a property, or the cut-line separating a mowed lawn from an unmowed lawn, often is being used to determine extent-of-curtilage questions.

1. Keep off the grass.

The following discussion analyzes cases where courts have determined that the cartilage was not penetrated because the police stayed off the mowed areas of a residential property. On this basis, courts have held that there is no search, and therefore the drug evidence found is admissible. Nearly all of the cases incorporating mow-lines into the curtilage analysis are post-Dunn 1990s or 2000 decisions. (145) Courts vary in how they incorporate mow-lines into the Dunn four-factor standard. In some cases, the mow-line is a factor in the outcome, but the court does not pigeonhole the analysis into one of the four Dunn factors. 146 In other cases, the mow-line discussion is framed within either the second or third Dunn factor. (147) In Dunn, the Court cautioned that the four factors should not be applied mechanistically to produce a finely tuned formula to answer all "extent-of-curtilage questions." (148) The Court said, "Rather these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration--whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." (149) As the cases below illustrate, the mow-line weighs heavily on this "centrally relevant consideration."

In a few cases, courts have used the mow-line as a stand-in for a fence or enclosure (150) under Dunn's second factor--"whether the area is included within an enclosure surrounding the home." (151) In People v. Pittiglio, (152) an officer acting on a tip that marijuana might be growing inside the defendant's house walked through an "uncut" field and noticed plants growing in some of the house's windows. The officer used his binoculars to confirm that the plants were marijuana, while "at all times remaining off the mowed area of the lawn." (153) The officer then obtained a warrant, searched the residence, and found marijuana. The trial court suppressed the drug evidence stating that the warrant was based on an unconstitutional search. The court of appeals reversed and incorporated the mow-line analysis into the second Dunn factor:
 In applying these [Dunn] factors to the present case, we
 find ... that the area from which [Officer] Vondra made his
 observations was not part of the cartilage of defendants'
 home.... Although defendants' home had no fence or other enclosure
 surrounding it, it did have a mowed lawn. Vondra did not intrude
 into this mowed area, but rather, observed the plants while
 standing in a rough, overgrown field containing weeds and sumac.
 We find that such an area was not "being used for intimate
 activities of the home...." (154)


Here, the mowed lawn is considered an enclosure. When the police keep off this enclosed area there is no overstepping of the curtilage boundary.

In State v. Townsend, (155) West Virginia's Supreme Court of Appeals also used the mow-line as a proxy for an enclosure. (156) In this "reverse curtilage" case, (157) an officer searched the defendant's house based on a valid warrant. After finding marijuana in the house, the officer then searched a hog house--which was not mentioned in the warrant and which was located approximately 200 feet from the house--and found a box of marijuana. The defendant argued that the hog house was outside the curtilage and therefore not covered by the warrant, but the trial court denied the motion to suppress the drug evidence. The court of appeals reversed, holding that the hog house was not within the curtilage and therefore not covered by the warrant allowing a search of the house. In its analysis, the court analogized the mowed area to an enclosure:
 Although the area was not fenced, the record suggests that the grass
 in the area immediately surrounding the defendant's mansion house,
 as well as surrounding other outbuildings, was mowed, whereas the
 grass around the hog house itself was not mowed.... There was
 nothing to suggest that the defendant in any way attempted to
 surround it with the aura of privacy involved in a home and the
 immediately surrounding area. (158)


State v. Todor (159) is another example of the mow-line being incorporated within the Dunn second-factor analysis. In Todor, a police helicopter pilot informed officers that he had spotted a single marijuana plant growing in Todor's backyard and later informed officers that he saw additional plants growing in an "overgrown area" behind the house. The police seized the plants before obtaining a warrant. The trial court suppressed the single plant growing in Todor's backyard because it was within the curtilage and the police had seized it before obtaining a warrant. The court admitted the additional 393 plants found in the "overgrown area," holding that they were located in an "open field." Based in part on the second factor of Dunn, the court of appeals decided that the overgrown area was not "intimately tied to the house" and was therefore distinguishable from the curtilage:
 While Todor testified that the bathing pool itself was enclosed,
 the record contains no evidence that the overgrown area was
 segregated from the rest of the property so that it was "readily
 identifiable as part and parcel of the house." To the contrary, the
 area is clearly distinguishable from the mowed portions of Todor's
 property. (160)


Mow-lines under the "enclosure" rubric often trump the other curtilage factors. In United States v. Breza, (161) for example, officers went within fifty feet of Breza's home located on a ninety-two-acre farm when searching for marijuana. The court held that, "[a]lthough the garden [where the marijuana was found] was relatively close to Breza's house and Breza had chosen to live in an isolated location, these factors are outweighed by the clear demarcation of the vegetable garden from the landscaped portion of the yard and the uses to which the garden was put." (162)

Even when mow-lines are analyzed under Dunn's second factor, some decisions suggest that mow-lines alone may provide Oliver's "clearly marked" curtilage boundary. For example, in State v. Martwick, (163) during a warrantless search police officers in Wisconsin took a leaf-slip sample from plants growing on the defendant's property. Based on the sample, the police determined the plants were marijuana, obtained a search warrant, and seized the drugs. The defendant argued that the officers illegally entered the curtilage when taking the sample and moved to suppress the evidence seized. The Supreme Court of Wisconsin held that the police had not violated the defendant's curtilage. (164) Although the defendant did not "cultivate a traditional mowed lawn," (165) the court stated: "It is significant that the marijuana plants did not stand in the area of low-cut weeds and brush surrounding the house. Oliver noted that the curtilage of most homes is clearly marked.... In this case, the curtilage is clearly marked by the low-cut weeds and brush." (166)

Mow-lines have also been analyzed under the third Dunn factor--"the nature of the uses to which the area is put." (167) In these situations, courts have concluded that mowed areas function as an extension of the house and are therefore included within the curtilage. In the following cases, the police stayed off the grass.

In United States v. Groce, (168) an officer entered the area around the defendant's home before obtaining a warrant. The officer admitted having crossed over an electric fence before entering the area, but the court stated that this fact was not dispositive. Instead, the court looked to the fact that the officer "did not cross into any area around the house that had been mowed." (169) The officer "discovered the growing trays in one of the unmowed areas," and under Dunn's third factor, the area that the officer entered "was unmowed and collecting refuse." (170)

Again, in State v. Campbell, (171) the appellant argued that the area where officers found marijuana growing was within the curtilage of his house. The court applied the Dunn factors and looked to the mow-line in its third-factor analysis: "[The marijuana] was outside of the cleared and mowed area of land used for activities associated with the home." (172) As a result, the court held that the Fourth Amendment had not been violated.

Finally, in Commonwealth v. Ferguson, (173) the court held that the officers had not conducted an unreasonable search because marijuana plants found by an officer were not within the curtilage of the house. In making this determination, the court noted within its Dunn third-factor analysis that "[a]ll of the suspected marijuana plants were found beyond the mowed lawn next to the house." (174)

In some cases, even when the mow-line inquiry is included within the Dunn framework, it appears to be operating as a separate rule. (175) For example, in United States v. Sumner, (176) officers entered the defendant's 240-acre property and found several marijuana plots. The defendant filed a motion to suppress the marijuana claiming that the officers trespassed on the curtilage of the property. Although the court cited Dunn, it did not apply the four factors. The court stated, "While the defendant's father testified that the family used the entire 240 acre area, the court must conclude that only the manicured area of approximately four or five acres constitutes the curtilage." (177) Since the nearest plot of marijuana was sixty yards away from the "manicured area," the court held that there had been no search under the Fourth Amendment and denied the defendant's motion to suppress.

2. On grass.

Unlike the preceding discussion, in the cases below, drug evidence is suppressed because officers enter a mowed area, and the court holds this to be a violation of the curtilage. Like the cases above, mow-lines are usually discussed within the Dunn framework. However, given the weight that mow-lines appear to have within the standard, a mow-line rule has effectively displaced the curtilage test.

In United States v. Jenkins, (178) based on information obtained by aerial surveillance, a team from Kentucky's Marijuana Strike/Task Force seized materials used in the production of marijuana from Jenkins' backyard without a warrant. The trial court concluded that the defendant's backyard was an "open field" and denied the motion to suppress. On review, the court of appeals held that the backyard (179) was curtilage and held that the district court erred in denying the motion. (180) In distinguishing open fields from curtilage under Dunn's second factor, the court of appeals cited Oliver's "clearly marked" test, stating: "Defendants' backyard is clearly demarked as a continuation of the home itself. No one could mistake the yard, with its neatly mowed lawn and garden arrangements, for the unkept open fields composing the remaining portion of defendants' rural property." (181) For the Jenkins court, a mowed lawn is a signal, like a fence, that an area is private. (182)

State v. Bayless (183) also held that a mowed area is part of a house's enclosure. (184) An officer, acting on a tip that marijuana was growing in Bayless' garden, went to the back of the house without a warrant and observed four marijuana plants growing among tomato and corn plants. Bayless argued on appeal that the marijuana plants seized were within the curtilage. The court of appeals agreed and held that the plants should have been excluded, noting under the second Dunn factor "that the area between the house and the garden was mowed lawn and beyond the garden was a field of tall weeds." (185)

Finally, in United States v. Reilly, (186) although the court used the Dunn framework to organize its curtilage inquiry, it based its conclusion almost exclusively on the fact that officers had discovered marijuana plants while on the defendant's lawn. In the court's findings of fact, it discussed at great length the defendant's efforts to establish the lawn on his eleven-acre property, which had once been a farm field--Reilly tilled the soil and planted the seed, rolled the lawn, and made sure that it was mowed with both a push and riding mower. (187) It was from this "groomed" (188) area that the officers observed marijuana growing in Reilly's cottage and in a wooded area.

Based on the Dunn factors alone, the court could have concluded that the lawn was not protected curtilage. Under the first Dunn factor, the court acknowledged that the area where the officers discovered the plants was approximately 375 feet from the residence. (189) The court also observed that factor two had not been satisfied: "[T]he court does not find that any fence or natural structure can be said to clearly mark the limits of the curtilage between the main residence and the wooded area and the cottage." (190) Similarly, the court noted that factor three, the "use" factor, and factor four, "the steps taken to prevent observation," had not been clearly satisfied. (191) At bottom, the court based its conclusion on a mow-line rule--the area was curtilage because it was a "well-groomed" lawn:
 In summary, the court concludes that the officers violated
 defendant's Fourth Amendment rights when they searched his property
 without a warrant on September 6, 1991. This conclusion is mainly
 premised on the layout of defendant's property at the time of the
 warrantless search. Unlike the property in Dunn, defendant's
 property was not subdivided by fencing. The grounds were groomed
 and well maintained, and although boundary fencing was down at
 several locations, it should have been readily apparent to an
 observer that the groomed area of the property was private
 .... Viewed as a whole, an observer could reasonably conclude
 that the area in question "harbors the intimate activity associated
 with the sanctity of a man's home and the privacies of life."

 In short, the officers had no right to approach the cottage or
 wooded area without a warrant, because the nature of the grounds
 made it apparent that it was part of the curtilage of defendant's
 home. (192)


III. IS LAWN PRIVACY REASONABLE?

As Part 1.E suggested, although courts sometimes look to mow-lines within the Dunn standard to guide the curtilage inquiry, the Supreme Court may be moving away from Dunn's curtilage factors and turning to a Katz reasonableness framework. The question here is whether an expectation of privacy in the lawn is "one that society is prepared to recognize as reasonable." (193) This Part first examines the expectation of privacy by looking at the history of the residential lawn and then examines curtilage in today's American urban and suburban contexts.

A. Brief History of Lawn Privacy

The cases discussed in Part II indicate there is a proclivity by some courts to view the residential lawn as private under the Fourth Amendment. A well-manicured grass carpet may be enough to establish the curtilage. (194) As this brief history suggests, however, privacy in the lawn may not be so clear-cut. (195)

Lawns as they are thought of today were uncommon in America before the mid-nineteenth century. (196) In general, towns were the basis for America's development. (197) The early settlers generally favored town life because it offered them security and was a continuation of a living system with which they were familiar. (198) Although no clear settlement pattern developed in the New World, by the time of America's founding, (199) a "typical" house was set on a tiny lot in a densely settled neighborhood. (200) As towns grew into urban centers, very little space surrounded the house. (201) Front yards and side yards were almost nonexistent. (202) Backyards were usually less than twenty-five feet deep, "and the little space that was not built upon was typically rancid, disreputable, and overrun by rodents." (203) The backyard space was private insofar as "a social occasion there would have been unthinkable." (204)

Fast forwarding to the mid-nineteenth century, the appeal of "jammed-together" houses was waning and the idea of suburban living was on the rise. (205) While there are many explanations for the rise of the suburban environment--a concern for family health, a reaction to urban congestion, and the growth of the commuter railroad (206)--it is clear the growth of the suburbs encouraged a new vision for the house that included the lawn. This "new" house, as illustrated in the popular pattern books and architectural treatises of this era, sat in an open rural setting surrounded by a grass lawn. (207)

Some have argued that the suburban house reflected a desire for a more secluded and private home life. (208) Even if this is so, it is anything but clear that the lawn surrounding the house itself was private. Residents planted lawns for public view. The favored aesthetic device of this period was the "borrowed view"--designing landscapes without enclosures so a spectator could enjoy a long vista beyond his own property. For this reason, fences and walls were highly contested in the suburban image. (209) Generally, grass lawns were open and exposed, rather than enclosed for privacy. (210)

By the late nineteenth century, designers had taken the idea of the individual house surrounded by a lawn and aggregated it into suburban residential communities such as Llewellyn Park, New Jersey. (211) In these early developments, where the houses sat within a park-like setting, the lawn was considered a communal space. (212) These early residential developments served as precursors to the twentieth-century suburbs and lawns. (213)

It is questionable that the lawn in the twentieth century was considered private. (214) In the mid-twentieth century, in Levittown, one of America's most emulated housing communities, a former resident described the total openness of the lawns: "[W]e used to talk about ... how there were no hedges ... in the old days, no fences, no locked doors. Everyone's home was your home; we all walked back and forth like it was one big yard." (215) Today, it is also unclear whether the lawn--in the suburban context at least--is private. (216)

B. Curtilage's Antiurban Bias

The impulse behind the courts' protection of the manicured lawn's privacy may lie in a romanticized, bucolic vision of the American house. (217) What has followed from this ideal is that urbanites seem to have less curtilage protection than those who live in rural environs.

For example, the defendant in United States v. Redmon (218) lived in an eight-unit townhouse and put his garbage out for collection next to his unit's garage door. A "constitutional garbage issue" arose when officers without search warrants removed the contents of Redmon's garbage cans while the garbage cans were sitting just outside his garage on the common driveway awaiting collection. (219) The officers found evidence of drugs in the garbage, and Redmon argued that the search violated the Fourth Amendment. The majority rejected the application of the curtilage doctrine in this context and decided the case under a reasonableness framework--holding that Redmon's expectation of privacy in the trash was unreasonable. (220) In dissent, Judge Posner opined that the court should have applied the curtilage doctrine. (221) He emphasized that under the majority's approach, urban dwellings have no curtilage (222) and had the following to say about context and privacy expectations:
 Of course it is simple realism that people who live in rural
 areas or have wealth will have more physical privacy than people who
 live in cities or working-class suburbs, and that therefore they
 will derive more protection from the Fourth Amendment. That does not
 trouble me; the wealthy have advantages in every department of life.
 What does bother me is the idea that the police have carte blanche
 to invade the property rights of people who by virtue of living on
 small lots place their garbage cans near their house. (223)


Other courts have made general observations about the expectation of privacy in rural versus urban contexts. In United States v. Broadhurst, (224) the court held that officers violated the defendant's Fourth Amendment rights by flying, without a warrant, in circles around the defendant's greenhouse in an effort to determine its contents. The court, in analyzing the aerial surveillance under the Fourth Amendment, paid particular attention to the rural setting of Broadhurst's property: "Furthermore, it is at least arguable that a defendant's reasonable expectation of privacy is heightened rather than diminished as a result of locating his business in a rural, rather than an urban area. After all, privacy is a principal reason 'to move to the country.'" (225) The court in United States v. Ramapuram (226) also commented on how privacy expectations differ in the country from the city: "Unlike an urban dweller, whose activities and effects are more likely to be viewed by the casual passerby, the rural dweller reasonably can expect more privacy concerning his activities and his effects if his premises are far removed from the public road." (227) Finally, in United States v. Cruz Pagan, (228) the court commented:
 In a modern urban multi-family apartment house, the area within the
 "curtilage" is necessarily much more limited than in the case of a
 rural dwelling subject to one owner's control. In such an apartment
 house, a tenant's "dwelling" cannot reasonably be said to extend
 beyond his own apartment and perhaps any separate areas subject to
 his exclusive control. (229)


The notion that there is a reduced expectation of urban privacy occasionally injects itself into the curtilage doctrine through the Dunn factors. (230) Within Dunn's first factor--"proximity"---courts have noted that in terms of distance, urban curtilage is "exponentially" smaller than rural curtilage. (231) Conversely, courts have held that the zone of curtilage as a general matter is larger in a rural or "outdoor" setting. (232)

Courts usually do not discuss the character of the environment within Dunn factor two ("enclosure") or three ("use"), (233) but it is discussed within the fourth factor. For example, in Jenkins, (234) under the fourth factor the court stated, "It is also important to remember that defendants live in a remote and sparsely populated rural area where they would have had no particular reason to believe that they needed to construct a high impenetrable fence around the backyard in order to ensure their privacy." (235)

C. 'Burb Curtilage

Suburbia is neither the country, nor the city so it is hard to know whether curtilage's prorural bent carries into the suburban context and what kind of expectation of privacy is reasonable. Suburban housing developments have continued to expand in the twenty-first century, (236) and, as a result, courts are likely to face increasing extent-of-curtilage questions as applied to the suburbs. (237)

In the suburban front lawn at least, an expectation of privacy is questionable. Most writers on this subject view the front yard as public. (238) The question of the expectation of privacy in the other mowed areas around the house is more difficult. (239) One critic at least has commented on the lifelessness of the mowed areas in suburbia: "'[T]he mowed lawns beyond my yard appear so naked, bleak and cruel ... absent of all life.'" (240) If curtilage protects "'the privacies of life,'" (241) a question for the courts as they move forward is whether a privacy expectation in mowed lawns of the suburbs is one that they think society is prepared to honor as reasonable.

CONCLUSION

This Note set out to investigate the developing definition of curtilage. Part I traced the expansion of the common law understanding of curtilage as applied to the Fourth Amendment. Originally, curtilage protected only structures surrounding the house. The "modern curtilage" as formulated in Oliver expanded this idea by covering the ground space between structures. The curtilage then went vertical in the context of the aerial surveillance cases. Part I closed with a question--whether curtilage will continue in the face of the Supreme Court's continued reliance on Katz for Fourth Amendment questions.

Part II examined the difficulties following the importation of England's curtilage doctrine into the American context. The increase in domestic marijuana production has highlighted the difficulty of finding the curtilage boundary in America. As a result, under Dunn courts have to look for clues in the landscape to resolve extent-of-curtilage questions. Courts often look to mow-lines for answers.

Part III questioned whether lawn privacy is one that society is prepared to recognize as reasonable. It looked briefly at the history of the lawn as a way to question whether the grass surrounding a house is private. Given the emphasis on lawns in the curtilage doctrine, Part III also examined the implications of an antiurban bias toward the curtilage and ended by briefly considering suburban curtilage. Although the Note posed as many questions as it answered, at least one thing is clear for curtilage--for privacy's sake, cut the grass.

(1.) State v. Chaussee, 866 P.2d 643, 646 n.3 (Wash. Ct. App. 1994) (alteration in original) (quoting the trial court).

(2.) See TERENCE RILEY, THE UN-PRIVATE HOUSE (1999).

(3.) MAGGIE JACKSON, WHAT'S HAPPENING TO HOME?: BALANCING WORK, LIFE, AND REFUGE IN THE INFORMATION AGE 39 (2002) (quoting Terence Riley).

(4.) In the recent past, the household and public realms were "'distinct, separate entities.'" RILEY, supra note 2, at 14 (quoting Hannah Arendt). But today, we may only "'hope of rediscovering, at least in our own minds, the line between private life and public exposure.'" Id. (quoting Hannah Arendt). Riley uses Frank Lloyd Wright's A Home in a Prairie Town--a design published in the Ladies' Home Journal's February 1901 issue--as an example of "how refined the notion of privacy in the private house had become by the twentieth century." Id. Wright's design afforded "absolute privacy" from the public and the other houses on the block, Id.

(5.) The exclusionary rule requires the suppression of evidence obtained in violation of a defendant's constitutional rights. See Mapp v. Ohio, 367 U.S. 643 (1961) (applying the exclusionary rule to the states). See generally Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. ILL. L. REV. 363 (examining the theories supporting the exclusionary rule and proposing that a damages regime would be more effective than the rule as a means to ensure police and courts abide by the Fourth Amendment).

(6.) See, e.g., United States v. Arboleda, 633 F.2d 985,992 (2d Cir. 1980) ("In its recent decision in Payton v. New York, the Supreme Court identified the line at which the requirement for an arrest warrant takes hold as 'the entrance to the house' and the 'threshold.'" (citation omitted) (quoting United States v. Santana, 427 U.S. 38, 42 (1976))).

(7.) 466 U.S. 170 (1984).

(8.) See United States v. Redmon, 138 F.3d 1109, 1112 (7th Cir. 1998) (en banc) (stating that the curtilage "is an imaginary boundary line between privacy and accessibility to the public").

(9.) See infra note 69 and accompanying text.

(10.) See Oliver, 466 U.S. at 180 (defining curtilage as "the land immediately surrounding and associated with the home").

(11.) Id. at 182 n.12.

(12.) 480 U.S. 294 (1987); see also United States v. Reilly, 76 F.3d 1271, 1275 (2d Cir. 1996) ("Hester and Olmstead adopted the concept of curtilage, but its contours remained unclear until the Supreme Court's decision in United States v. Dunn." (citation omitted)). Courts have created shorthand headings for the four factors, such as: (1) proximity, (2) enclosure, (3) use, and (4) visibility. United States v. Johnson, 256 F.3d 895, 901-03 (9th Cir. 2001).

(13.) Dunn, 480 U.S. at 301.

(14.) Id.

(15.) See infra note 125 and accompanying text.

(16.) See infra Part II.

(17.) Oliver v. United States, 466 U.S. 170, 180 (1984) (citation and internal quotation marks omitted).

(18.) See infra note 23 and accompanying text.

(19.) See Mapp v. Ohio, 367 U.S. 643 (1961); see also supra note 5.

(20.) 533 U.S. 27 (2001).

(21.) 389 U.S. 347 (1967).

(22.) Since the Katz decision, the Court has followed the two-part test outlined by Justice Harlan: "[F]irst that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" Id. at 361 (Harlan, J., concurring).

(23.) See ELLEN ALDERMAN & CAROLINE KENNEDY, THE RIGHT TO PRIVACY, at xiv (1995) ("We began our research with the same gut reaction that most people have: there is less privacy than there used to be. As we immersed ourselves further in the topic, reading privacy cases and talking with people who had tried (and often failed) to vindicate their loss of privacy through the legal system, we concluded that things were worse than we originally thought."); JACKSON, supra note 3, at 43 ("Today, it's almost impossible to pick up a newspaper without seeing an article about a new threat to Americans' privacy."); JEFFREY ROSEN, THE UNWANTED GAZE: THE DESTRUCTION OF PRIVACY IN AMERICA 3, 12, 27 (2000) (stating that "changes in law as well as changes in technology are blurting the boundaries between home and work, reducing the backstage areas in which we can retreat from public view," discussing "how dramatically privacy protections have eroded," and "consider[ing] ways of reconstructing some of the zones of privacy that law and technology have been allowed to invade"); Kathleen Stewart, Nostalgia--A Polemic, 3 CULTURAL ANTHROPOLOGY 227, 231 (1988) ("There is no clear 'inside' or 'outside' anymore, no private and public spheres of life."). But see Marilyn Gardner, What's Happening to the American Home?, CHRISTIAN SCI. MONITOR, July 24, 2002, at 15, available at http://www.csmonitor.com/2002/0724/p15s02-lihc.html ("Size of new US houses has been increasing 500 square feet every 20 years, while the average family size has shrunk from 3.4 in 1950 to 2.6 in 2000.") (last visited Feb. 5, 2004).

(24.) See Oliver v. United States, 466 U.S. 170, 180 (1984) ("At common law, the curtilage is the area to which extends the intimate activities associated with the sanctity of a man's home and the privacies of life, and therefore has been considered part of the home itself for Fourth Amendment purposes." (citation and internal quotation marks omitted)); Eric Dean Bender, The Fourth Amendment in the Age of Aerial Surveillance: Curtains for the Curtilage?, 60 N.Y.U.L. REV. 725,727 (1985) (reviewing "the historical background of the definition of 'house' and its curtilage at common law" and "conclud[ing] that for fourth amendment purposes 'house' includes its curtilage, and that the curtilage is therefore constitutionally protected from unreasonable searches and seizures").

(25.) For the continued relevance of this analysis, see Hart v. Myers, 183 F. Supp. 2d 512, 521 (D. Conn. 2002) (analyzing "whether the [small wooden hunting] structure on the property was a home, from which curtilage could extend"), aff'd, 50 Fed. Appx. 45 (2d Cir. 2002). The court determined that the structure was a home based on its function: "[T]here is evidence from which a reasonable juror could find that plaintiffs used the structure for sleeping as well as other privacies of the home." 183 F. Supp. 2d at 522; see also infra note 53 and accompanying text (discussing a structure's function as a way to decide "house" questions).

(26.) 389 U.S. 347 (1967).

(27.) Id. at 351.

(28.) See 1 WAYNE R. LAFAVE, THE FOURTH AMENDMENT 465 ("[E]ven under the Katz justified-expectation-of-privacy approach, it is still useful to view residential premises as a place especially protected against unreasonable police intrusion."). Justice Harlan in Katz acknowledged that "a man's home is, for most purposes, a place where he expects privacy." Katz, 389 U.S. at 361 (Harlan, J., concurring).

(29.) See Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986) ("We conclude that the open areas of an industrial plant complex with numerous plant structures spread over an area of 2,000 acres are not analogous to the 'curtilage' of a dwelling for purposes of aerial surveillance."). But see United States v. Swart, 679 F.2d 698, 702 (7th Cir. 1982) ("Therefore, the cars may have been within the curtilage of the business buildings.").

(30.) See BEATRIZ COLOMINA, PRWACY AND PUBLICITY: ARCHITECTURE AS MASS MEDIA 7 (1994) (discussing "'Le Corbusier's basic definition of the primordial idea of the house--'The house is a shelter, an enclosed space, which affords protection against cold, heat, and outside observation.'").

(31.) The Fourth Amendment states:
 The right of the people to be secure in their persons, houses,
 papers, and effects, against unreasonable searches and seizures,
 shall not be violated, and no Warrants shall issue, but upon
 probable cause, supported by Oath or affirmation, and particularly
 describing the place to be searched, and the persons or things to be
 seized.


U.S. CONST. amend. IV.

(32.) Although privacy has many different meanings, Jeffrey Rosen has suggested that private spaces are analogous to backstage areas, where "individuals, like actors in a theater ... can let down their public masks, collect themselves, and relieve the tensions that are an inevitable part of public performance." ROSEN, supra note 23, at 12.

(33.) See Payton v. New York, 445 U.S. 573, 585 (1980) ("[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." (citation omitted)).

(34.) 471 U.S. 386 (1985).

(35.) Other Supreme Court cases have extended Fourth Amendment protection beyond the house to spaces such as hotel rooms. But these cases have not explicitly compared spaces like hotel rooms with "houses." See Stoner v. California, 376 U.S. 483, 490 (1964) ("No less than a tenant of a house, or the occupant of a room in a boarding house, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures." (citations omitted)); United States v. Jeffers, 342 U.S. 48 (1951) (holding that a seizure of drugs in a hotel room without a warrant violated the Fourth Amendment).

(36.) See People v. Carney, 668 P.2d 807, 810 (Cal. 1983) ("The court in Carroll premised its analysis on the notion that there is a constitutional difference between houses and cars. The underlying rationale for this distinction was the inherent mobility of automobiles."), rev'd sub nom., California v. Carney, 471 U.S. 386 (1985); see also Carroll v. United States, 267 U.S. 132 (1925) (announcing the automobile exception).

(37.) Carney, 668 P.2d at 812.

(38.) Id.

(39.) Id. at 813.

(40.) Id.

(41.) Id. at 814.

(42.) California v. Carney, 471 U.S. 386, 390 (1985) (relying on Carroll for the distinction between stationary structures and vehicles that can be "quickly moved").

(43.) Id. at 393.

(44.) Over time, the Court might have to elaborate on this statement if more people choose to live in mobile homes. See Robert Kronenburg, Preface to MOBILE: THE ART OF PORTABLE ARCHITECTURE (Jennifer Siegal ed., 2002) ("Now it seems that a return to mobile living is imminent for many more of us. In North America, it is a common phenomenon for retired people, released from the burden of a lifetime's work, to sell the house, buy a trailer home, and become 'snowbirds.' Moving between the fixed homes of their children and grandchildren, they follow the clement weather from north to south....").

(45.) Carney, 471 U.S. at 406 (Stevens, J., dissenting).

(46.) Id.

(47.) Id.

(48.) Id.

(49.) Id. at 393.

(50.) Id. at 407 (Stevens, J., dissenting).

(51.) See Kelley v. State, 245 S.E.2d 872, 874-75 (Ga. Ct. App. 1978) ("Though a tent may not provide the sturdy protection against the winds, the rains, the heat, and the cold, which a customary house provides, the tent-dweller is no less protected from unreasonable government intrusions merely because his dwelling has walls of canvas rather than walls of stone."). For a Fourth Amendment analysis of camping structures, see Robert J. Leibovich, Privacy Goes Camping: Staking a Claim on the Fourth Amendment, 26 U. MEM. L. REV. 293 (1995).

(52.) See United States v. Ruckman, 806 F.2d 1471 (10th Cir. 1986) (rejecting Ruckman's claim that the natural cave on public lands that he was inhabiting came under the ambit of the Fourth Amendment's prohibition of unreasonable searches of "houses" because Ruckman had no legal right to occupy the land and therefore had no reasonable expectation of privacy in the cave); Care v. United States, 231 F.2d 22, 25 (10th Cir. 1956) ("The cave in the instant case was in a plowed field, across a road and more than a long city block from the home. It gave no evidence of ever having been used as a refuge from storms or for normal uses of a cave adjacent to a home such as the storage of foods or dairy products.").

(53.) See Kelley, 245 S.E.2d at 875 ("A dwelling place, whether flimsy or firm, permanent or transient, is its inhabitant's unquestionable zone of privacy under the Fourth Amendment."); see also Care, 231 F.2d at 25; Hart v. Myers, 183 F. Supp. 2d 512, 522 (D. Conn. 2002), aff'd, 50 Fed. Appx. 45 (2d Cir. 2002); Commonwealth v. Peterson, 596 A.2d 172, 177 (Pa. Super. Ct. 1991) ("[I]t is not the superficial characteristics of a structure, its walls, windows, doors, or even furnishings, which give it the constitutional cloak accorded a home. Rather, it is the habitation of the structure and its use as a residence which form the purpose of the constitutional protection."), aff'd, 636 A.2d 615 (Pa. 1993); cf. Commonwealth v. Cameron, 561 A.2d 783, 787 (Pa. Super. Ct. 1989) ("A television, a couch, and a platter of food are insufficient attributes of a home....").

(54.) See United States v. Jenkins, 124 F.3d 768, 772 (6th Cir. 1997) ("[T]he curtilage is considered part of the house itself for Fourth Amendment purposes.") (citing Oliver v. United States, 466 U.S. 170, 180 (1984)); Fullbright v. United States, 392 F.2d 432, 435 (10th Cir. 1968) ("The word 'houses' in the Fourth Amendment has been extended by the courts to include the cartilage."); Kelley, 245 S.E.2d at 875 (holding that once the tent was determined to be a dwelling place, it was surrounded by curtilage: "[T]here can be no question but that the clearing and garden adjacent to these tents was in the curtilage."). Curtilage is considered under the Fourth Amendment's protection of "houses" not "effects." Oliver, 466 U.S. at 186 n.l (Marshall, J., dissenting) ("The Court informs us that the Framers would have understood the term 'effects' to encompass only personal property.").

(55.) See infra note 125 and accompanying text.

(56.) See Fullbright, 392 F.2d at 435 n.7 ("The term [curtilage] was of special importance at common law since the breaking and entering of a building outside the curtilage did not constitute burglary."); Wright v. State, 77 S.E. 657, 658 (Ga. Ct. App. 1913) ("Under the common law, burglary could only be committed in a dwelling-house; and for this reason the outhouses which were within the curtilage were considered a part of the dwelling-house."); Hutchins v. State, 59 S.E. 848, 849 (Ga. Ct. App. 1907) ("A corn-crib, unless it be within the cuttilage, is not the subject-matter of burglary."); C.S. Parnell, Annotation, Burglary: Outbuildings or the Like as Part of "Dwelling House ", 43 A.L.R.2d 831 (1955).

(57.) 4 WILLIAM BLACKSTONE, COMMENTARIES *225 (emphasis added); see also Bender, supra note 24, at 732 & n.33 (defining "homestall" as "farm-yard").

(58.) See Parnell, supra note 56, at 834 ("This principle was applied quite literally in England ... it being necessary that the outbuilding be physically inclosed by the same wall or fence which inclosed the dwelling before the structure could be considered part or parcel of the dwelling so that one breaking into it with the necessary felonious intent would be punishable for the offense of burglary.").

(59.)
 [W]here properties were so inclosed, there was no difficulty in
 applying the [curtilage as boundary] theory. However, it became
 evident in the American jurisdictions that such a literal conception
 would work much mischief, since the American homestead was not
 usually walled for purposes of protection. The theory then began to
 gain recognition that an outbuilding could be within the curtilage
 although no wall or fence inclose the home and its appurtenant
 outbuildings."


Id. As discussed in Part II, infra, the difficulty of establishing the boundary of the curtilage in America has led courts to search for other boundary markers like mow-lines.

(60.) 255 U.S. 313 (1921).

(61.) Id. at 314 (emphasis added). For another pre-Katz case suggesting that the Fourth Amendment applies to buildings in the curtilage, see Care v. United States, 231 F.2d 22, 25 (10th Cir. 1956). The protection of the Fourth Amendment "does, however, apply to buildings within the curtilage which may include a garage, a barn, a smokehouse, a chicken house or similar property." Id.

(62.) Amos, 255 U.S. at 317.

(63.) True, burglary is a breaking and entering, so logically under burglary law going onto another person's lawn would not subject a person to a burglary offense. However, security of the yard at the time Amos was decided was not thought to be of such importance that it was given special protection.

(64.) The curtilage can also work in "reverse"--allowing searches. For example, if a warrant only expressly allows for a search of a house, courts have held that curtilage is also covered by the warrant. See United States v. Gorman, 104 F.3d 272, 275 (9th Cir. 1996) ("Additionally, several state courts have held that the Fourth Amendment is not violated by a search of the grounds or outbuildings within a residence's curtilage where a warrant authorizes a search of the residence."); State v. Vicars, 299 N.W.2d 421,425 (Neb. 1980) (warrant authorizing search of defendant's residence permitted search of a calf shed 100 feet away from the house on the opposite side of a chain link fence); State v. Trapper, 269 S.E.2d 680, 684 (N.C. Ct. App. 1980) (warrant authorizing search of house trailer permitted search of a tool shed thirty feet away); State v. Stewart, 274 A.2d 500, 502 (Vt. 1971) (warrant authorizing search of house permitted search of a tree in the curtilage).

(65.) Cf. infra fig. 3.

(66.) 466 U.S. 170 (1984).

(67.) It is true that the space of the curtilage, as distinct from structures, was protected in the exception to the duty to retreat. See Madry v. State, 78 So. 866, 868 (Ala. 1918) ("The rule is of universal acceptance that a person assailed is not bound to retreat from his own dwelling to avoid killing his assailant, even though a retreat could be safely made. And this doctrine is applied to the curtilage, or such space as is customarily occupied by the dwelling house and out buildings appurtenant thereto."); see also United States v. Gilliam, 26 F. Cas. 1319 (D.D.C. 1854) (No. 15,205a) (considering the extent of curtilage with regard to a goose house); L.S. Rogers, Annotation, Homicide: Extent of Premises Which May Be Defended Without Retreat Under Right of Self-Defense, 52 A.L.R.2d 1458 (1957). But the curtilage's lineage in the Fourth Amendment context is connected with burglary law through Blackstone. See infra text accompanying notes 82-84.

(68.) The Supreme Court cases between Amos and Oliver mentioning curtilage in the Fourth Amendment context suggest that only structures are protected by the Amendment. See Olmstead v. United States, 277 U.S. 438, 466 (1928) ("[There is no Fourth Amendment violation] unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house 'or curtilage' for the purpose of making a seizure."); Scher v. United States, 305 U.S. 251,255 (1938) (holding that a warrantless search of an automobile in a garage within the curtilage did not violate the Fourth Amendment because the officers closely following the car could have properly searched the car before it passed into the open garage); Goldman v. United States, 316 U.S. 129, 141 n.8 (1942) (Murphy, J., dissenting) (citing Olmstead); Poe v. Ullman, 367 U.S. 497, 551 (1961) (Harlan, J., dissenting) ("[I]f the physical curtilage of the home is protected, it is surely as a result of solicitude to protect the privacies of the life within."); United States v. White, 401 U.S. 745, 748 (1971) (citing Olmstead); Coolidge v. New Hampshire, 403 U.S. 443, 459 n.17 (1971) (citing Scher); Trapper v. North Carolina, 451 U.S. 997, 999 (1981) (noting that the warrant allowed the search of the "Lombardo house and curtilage, including a metal storage building").

(69.) Oliver's curtilage is modern in two ways. First, modern simply means "new" in the sense that the Court's definition of curtilage was different from the common law doctrine that only protected structures. If the common law protected "enclosed" spaces in structures surrounding the home, modern curtilage protects the void spaces--"the outdoor areas or spaces between structures and buildings." Dow Chem. Co. v. United States, 476 U.S. 227, 236 (1986). In the architecture profession, this distinction is articulated as the difference between "figural" or enclosed spaces, and the modern conception of space as open or "free." See Adi Shamir Zion, Introduction to OPEN HOUSE: UNBOUND SPACE AND THE MODERN DWELLING 6, 11 (Dung Ngo ed., 2002) (discussing the use of the "free plan" in the modern house); see also Michael Graves, A Case for Figurative Architecture, in MICHAEL GRAVES BUILDINGS AND PROJECTS 1966-1981, at 11 (Karen Vogel Wheeler, Peter Amen & Ted Bickford eds., 1982). Second, modern means post-Katz.

(70.) The modern definition of curtilage as including the "yard" or "lawn" has gained popular acceptance. See ALDERMAN &, KENNEDY, supra note 23, at 25 ("[T]he law even recognizes a certain zone of privacy around the home that we can reasonably expect to reserve for ourselves. That space, along with our house, is protected by the Fourth Amendment. Under the law, this area is known as the 'curtilage.' To most of us, it is known as our yard.").

(71.) Note that under this doctrine, a trespass is not the same as entry into the curtilage. See Oliver, 466 U.S. at 180 n. 15 ("[T]he law of trespass confers protections from intrusion by others far broader then those required by Fourth Amendment interests.").

(72.) See United States v. Karo, 468 U.S. 705, 715 (1984) (excluding evidence and stating that an unreasonable search occurs if "without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house"); see also supra note 5.

(73.) Hester v. United States, 265 U.S. 57, 59 (1924).

(74.) Two cases, No. 82-15 and No. 82-1273, were consolidated. Oliver, 466 U.S. at 170.

(75.) See Declan McCullagh, Privacy a Victim of the Drug War, WIRED, Dec. 11, 2000, available at http://www.wired.com/news/politics/0,1283,40532,00.html (last visited Feb. 25, 2004); Steven Duke, The Drug War on the Constitution, at http://www.cato.org/realaudio/drugwar/papers/duke.html (last visited Feb. 25, 2004).

(76.) See Schaffer Library of Drug Policy, Federal Court Decisions on Drugs by Decade: 1980, at http://www.druglibrary.org/schaffer/legal/legal1980.htm (last visited Nov. 5, 2003).

(77.) These facts relate to case No. 82-15. See Oliver, 466 U.S. at 173-74.

(78.) Hester, 265 U.S. at 59 ("[T]he special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields.").

(79.) Oliver, 466 U.S. at 184.

(80.) See id at 180 n. 11.

(81.) See supra Part I.B.

(82.) 265 U.S. 57 (1924).

(83.) 116 U.S. 616 (1886).

(84.) Oliver, 466 U.S. at 180 (citations omitted). The way this sentence is drafted, with "curtilage" in quotation marks, makes it appear that the Hester opinion distinguished between open fields and curtilage. In fact, the Hester opinion makes no mention of curtilage. See United States v. Reilly, 76 F.3d 1271, 1275 (2d Cir. 1996) (discussing how Blackstone's distinction between curtilage and open fields for the common law of burglary "found its way into American jurisprudence through an opinion by Justice Holmes, who held that 'the special protection accorded by the Fourth Amendment to the people in their persons, houses, papers and effects is not extended to the open fields.'" (quoting Hester, 265 U.S. at 59)).

(85.) 116 U.S. at 630.

(86.) Oliver, 466 U.S. at 180 (quoting Boyd, 116 U.S. at 630).

(87.) Id.

(88.) In United States v. Karo, the first Supreme Court curtilage case following Oliver, the Court again suggested that the curtilage was an outdoor space, not just a structure. 468 U.S. 705, 715 (1984) ("For purposes of the [Fourth] Amendment, the result is the same where, without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation outside the curtilage."). Similarly, in Dow Chemical Co. v. United States, the third case after Oliver mentioning curtilage, the Court explicitly stated, "The curtilage area immediately surrounding a private house has long been given protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept." 476 U.S. 227, 235 (1986) (rejecting "industrial curtilage"). However, the only authority the Court cited in support of the longstanding history of this modern notion of curtilage was California v. Ciraolo, a case decided by the Supreme Court on the same day it decided Dow Chemical. See California v. Ciraolo, 476 U.S. 207, 214 n.3 (1986); see also infra Part I.D. Dow Chemical clearly established the modern definition of curtilage as protecting more than just structures; it "reach[ed] the outdoor areas or spaces between structures." 476 U.S. at 236.

(89.) The modern definition of curtilage is present in "reverse curtilage" cases. See e.g., United States v. Gorman, 104 F.3d 272 (9th Cir. 1996) (holding that a warrant expressly allowing the search of a bus-residence implicitly allows officers to search the grounds of the curtilage around the residence); supra note 64 and accompanying text.

(90.) 466 U.S. at 182 n.12.

(91.) 480 U.S. 294 (1987).

(92.) See supra note 14 and accompanying text. The Court in Dunn rejected a bright-line rule for curtilage: "We decline the Government's invitation to adopt a 'bright-line-rule' that 'the curtilage should extend no farther than the nearest fence surrounding a fenced house.'" Dunn, 480 U.S. at 301 n.4; see also infra Part II (discussing curtilage rules).

(93.) A year after Dunn, the Court decided that trash left on the street for collection was not covered by the Fourth Amendment. See California v. Greenwood, 486 U.S. 35 (1988).

(94.) See Krause v. Penny, 837 F.2d 595,597 (2d Cir. 1988) (holding that driveways that are "readily accessible to visitors are not entitled to the same degree of Fourth Amendment protection as are the interiors of defendants' houses"); Lorenzana v. Superior Court, 511 P.2d 33, 35 (Cal. 1973) ("A sidewalk, pathway, common entrance or similar passageway offers an implied permission to the public to enter which necessarily negates any reasonable expectation of privacy in regard to observations made there."); see also infra note 218 and accompanying text (discussing United States v. Redmon, 138 F.3d 1109 (7th Cir. 1998)); cf United States v. Diehl, 276 F.3d 32, 39 (lst Cir. 2002) ("On scrutiny, the driveway cases cited from this circuit and others do not stand for the proposition urged by the government, that 'there is no Fourth Amendment protection in driveways'.... We noted in our prior conclusion that 'there is no expectation of privacy in a driveway that is exposed to the public'...." (quoting United States v. Roccio, 981 F.2d 587, 591 (lst Cir. 1992))), cert. denied, 537 U.S. 834 (2002).

(95.) The Court has never adopted the concept of "vertical curtilage." Instead, curtitage as viewed from above is analyzed under the Katz reasonableness framework. See Florida v. Riley, 488 U.S. 445 (1989) (holding that observation of the curtilage from a police helicopter flying at 400 feet, which was not contrary to law or regulation, was not a search); California v. Ciraolo, 476 U.S. 207, 213 (1986) (holding that observation of the curtilage from "public navigable airspace," in this case 1000 feet above ground, was not an unreasonable search). Other courts, however, have discussed vertical curtilage. See infra note 96.

(96.) See, e.g., Commonwealth v. Oglialoro, 547 A.2d 387, 392 (Pa. Super. Ct. 1988) (Kelly, J., concurring) (discussing "vertical curtilage"), aff'd, 579 A.2d 1288 (Pa. 1990).

(97.) Ciraolo, 476 U.S. at 213.

(98.) Id. at 214 ("[R]espondent's expectation that his garden was protected from observation is unreasonable and is not an expectation that society is prepared to honor....").

(99.) See Dow Chem. Co. v. United States, 476 U.S. 227, 234-35 (1986) ("In California v. Ciraolo, decided today, we hold that naked-eye aerial observation from an altitude of 1,000 feet of a backyard within the curtilage of a home does not constitute a search under the Fourth Amendment." (citation omitted)).

(100.) See Ciraolo, 476 U.S. at 215 ("[I]t is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet. The Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye.").

(101.) 488 U.S. 445 (1989).

(102.) Id. at 447-48.

(103.) As in Ciraolo, the Court relied on the second part of Katz. The Court recognized that Riley had a subjective expectation of privacy under the first part of Katz but held that here, "such an expectation of privacy was not reasonable and not one that 'society is prepared to honor.'" Id. at 449 (quoting Ciraolo, 476 U.S. at 214).

(104.) Id. at 451 ("This is not to say that an inspection of the curtilage of a house from an aircraft will always pass muster under the Fourth Amendment simply because the plane is within the navigable airspace specified by law. But it is of obvious importance that the helicopter in this case was not violating the law....").

(105.) Id. at 454 (O'Connor, J., concurring in the judgment) ("[T]he relevant inquiry after Ciraolo is not whether the helicopter was where it had a right to be under FAA regulations. Rather, consistent with Katz, we must ask whether the helicopter was in the public airways at an altitude at which members of the public travel with sufficient regularity that Riley's expectation of privacy from aerial observation was not one that society is prepared to recognize as reasonable." (internal quotation marks omitted)).

(106.) See supra Part I.A.

(107.) See Tri-State Steel Constr., Inc. v. Occupational Safety & Health Review Comm'n, 26 F.3d 173, 178 (D.C. Cir. 1994) (Williams, J., concurring in the result) (explaining Dunn as "a special case of the more general doctrine that a reasonable expectation of privacy is necessary for a successful 4th Amendment claim").

(108.) Factors one through three relate to the place itself--"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." United States v. Dunn, 480 U.S. 294, 301 (1987). Only factor four considers "people"--"the steps taken by the resident to protect the area from observation by people passing by." Id.

(109.) 533 U.S. 27 (2001).

(110.) See Gordon J. MacDonald, Stray Katz: Is Shredded Trash Private?, 79 CORNELL L. REV. 452 (1994).

(111.) See supra note 95 and accompanying text.

(112.) Florida v. Riley, 488 U.S. 445, 450 (1989) (stating that "the property surveyed was within the curtilage of respondent's home"); California v. Ciraolo, 476 U.S. 207, 213 (1986) (accepting "that this yard and its crop fall within the curtilage").

(113.) Riley, 488 U.S. at 449.

(114.) In decisions after the aerial surveillance cases, some courts have looked to Katz, not Dunn, as the ultimate inquiry. See United States v. Reilly, 76 F.3d 1271, 1276 (2d Cir. 1996) ("We therefore begin our analysis by looking to these four [Dunn] factors. But we do so fully conscious that the factors are not necessarily exclusive and that we are not, in any event, to apply them mechanistically.... The touchstone of our inquiry, therefore, remains, whether Reilly had a reasonable expectation of privacy in his cottage.").

(115.) Kyllo v. United States, 533 U.S. 27 (2001).

(116.) Id. at 34 ("While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes--the prototypical and hence most commonly litigated area of protected privacy--there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable.").

(117.) Id. at 40 (quoting Payton v. New York, 445 U.S. 573, 590 (1980)).

(118.) In 1976, before Oliver or Dunn, the Seventh Circuit tried to establish a bright-line rule--"any outbuilding or area within 75 feet of the house is within the curtilage and any outbuilding or area further than 75 feet is outside the curtilage." United States ex rel. Saiken v. Bensinger, 546 F.2d 1292, 1297 (7th Cir. 1976). The Seventh Circuit has subsequently criticized its holding. See United States v. Swart, 679 F.2d 698, 702 (7th Cir. 1982) (stating that Saiken failed to cite Katz and that "Katz would preclude an absolute rule that anything beyond a specific distance from a dwelling or business is in an area unprotected by the Fourth Amendment").

(119.) United States v. Dunn, 480 U.S. 294, 301 n.4 (1987) (rejecting the government's "first fence rule" stating "[w]e decline the Government's invitation to adopt a 'bright-line rule' that 'the curtilage should extend no farther than the nearest fence surrounding a fenced house'"); see also United States v. Ishmael, 843 F. Supp. 205,209 (E.D. Tex. 1994) ("There are no bright lines that determine where the curtilage of a home ends."), rev'd on other grounds, 48 F.3d 850 (5th Cir. 1995).

(120.) Florida v. Riley, 488 U.S. 445, 452-55 (1989) (O'Connor, J., concurring in the judgment).

(121.) See United States v. Redmon, 138 F.3d 1109, 1130 (7th Cir. 1998) (en banc) (referring to "the old common law doctrine of 'curtilage'").

(122.) "Unlike Europeans, jealous of their possessions and of their privacy, Americans did not build walls around their houses." KENNETH T. JACKSON, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED STATES 59 (1985).

(123.) See W.G. HOSKINS, THE MAKING OF THE ENGLISH LANDSCAPE 138-61 (Book Club Assocs. 1981) (1955) (discussing the enclosure acts and their impact on the English landscape); PHILIP PREGILL 8. NANCY VOLKMAN, LANDSCAPES IN HISTORY: DESIGN AND PLANNING IN THE EASTERN AND WESTERN TRADITIONS 261 (2d ed. 1999).

(124.) See infra note 212 and accompanying text.

(125.) See Wright v. State, 77 S.E. 657, 658 (Ga. Ct. App. 1913) ("It has been several times said by learned jurists that it was unfortunate that this term "curtilage," found in the English statutes defining the offense of burglary, and which applies to the dwelling and the houses surrounding the dwelling-house in England, should have been perpetuated in the statutes of our different States; for the term is not strictly applicable to the common disposition of enclosures and buildings constituting the homestead of the inhabitants of this country, and particularly of farmers. In England dwellings and outhouses of all kinds are usually surrounded by a fence or stone wall, enclosing a small piece of land embracing the yards and outbuildings near the house, constituting what is called the "court;" and this constitutes the cartilage of the dwelling-house."); see also Bare v. Commonwealth, 94 S.E. 168, 172 (Va. 1917) ("In England the curtilage seems to have included only the buildings within the inner fence or yard, because there, in early times, for defense, the custom was to enclose such place with a substantial wall. In this country, however, such walls or fences, in many cases, do not exist, so that with us the curtilage includes the cluster of buildings constituting the habitation or dwelling place, whether enclosed with an inner fence or not.").

(126.) Before today's curtilage cases involving marijuana offenses, most of the earlier curtilage cases dealt with the production or possession of illegal liquor during Prohibition. See, e.g., Amos v. United States, 255 U.S. 313 (1921).

(127.) The American marijuana drug culture is exemplified by High Times, a magazine first published in 1974, which in 2002 had an average paid circulation of 137,393. See High Times Media Kit 12, 18, available at http://www.hightimes.com/mainsite/About/content.php?page=mediakit (last visited Feb. 25, 2004).

(128.) Frontline: Busted (PBS television broadcast, Apr. 28, 1998) [hereinafter Frontline].

(129.) In the mid-1970s, most marijuana was imported from Mexico and Colombia. In the late 1970s, due to an eradication program, the supply of the drug from Mexico dwindled. To satisfy demand, Americans became producers of up to half of the marijuana consumed domestically. NAT'L DRUG ENFORCEMENT POLICY BD., ANALYSIS OF THE DOMESTIC CANNABIS PROBLEM AND THE FEDERAL RESPONSE 15 (1986).

(130.) Kevin B. Zeese, Drug Policy in America--A Continuing Debate: Engaging the Debate Reform vs. More of the Same, 30 FORDHAM URB. L.J. 465,480 (2003).

(131.) Frontline, supra note 128.

(132.) Drug Enforcement Admin., U.S. Dep't of Justice, DEA Programs: Marijuana Eradication, at http://www.usdoj.gov/dea/programs/marijuanap.htm (last visited Feb. 25, 2004).

(133.) Id.

(134.) See United States v. Reilly, 875 F. Supp 108, 117 (N.D.N.Y. 1994) ("Several courts adopt the view that it does not matter whether 'officers first trespass upon property that is obviously curtilage ... while investigating a tip, as long as the incriminating observations themselves take place outside the protected curtilage.' ... This court agrees...." (first omission in original) (quoting United States v. Traynor, 990 F.2d. 1153, 1157 (9th Cir. 1993))), aff'd, 76 F.3d 1271 (2d Cir. 1996).

(135.) See, e.g., John Gales Sauls, Curtilage: The Fourth Amendment in the Garden, at http://www.totse.com/en/law/justice_for_all/curtilag.html (last visited Feb. 25, 2004). In this article, John Sauls, Legal Instructor at the FBI Academy, poses hypothetical curtilage scenarios for agents. For example, in one hypothetical an "officer needs to determine whether the bushes he is considering crawling into [in order to see men on a patio] are within the curtilage of the residence." Id. Even private investigators are concerned with the scope of the curtilage. See Jim Parker, Trash Archaelogy [sic]: Curtilage and Expectation of Privacy (2002), at http://www.pimall.com/nais/nl/n.trasharchaelogy.html ("[The intent behind the Fourth Amendment] was not to protect people from people--or indeed people from Private Investigators. However, it is still important that we know the rules of the game before we play. Should we ever face legal action as a result of obtaining information in this manner, it may give you grounds to appeal any adverse court ruling and show diligence which may prove instrumental in you holding on to your finances and livelihood.") (last visited Feb. 25, 2004).

(136.) See United States v. Redmon, 138 F.3d 1109, 1112 (7th Cir. 1998) (en banc) (stating that the curtilage "is an imaginary boundary line between privacy and accessibility to the public"). See generally Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577, 592-93 (1988) (discussing the tension of rules versus standards).

(137.) See WARREN SCHULTZ, A MAN'S TURF: THE PERFECT LAWN 31-35 (1999) (chronicling the history of America's obsession with lawn mowing).

(138.) See Mike Pulfer, Crisscross Lawns Come Home: Owners Emulate Major League Ballparks by Mowing Patterns into Their Yards, CINCINNATI ENQUIRER, May 9, 2000, available at http://www.enquirer.com/editions/2000/05/09/loc_criscross_lawns.html (last visited Feb. 5, 2004).

(139.) See DAVID R. MELLOR, PICTURE PERFECT: MOWING TECHNIQUES FOR LAWNS, LANDSCAPES, AND SPORTS 15 (2001).

(140.) Id.

(141.) See David R. Mellor, Art Exhibit Focuses on Mowing Patterns, GROUNDS MAINTENANCE, Sept. 1, 2000, at http://grounds-mag.com/ar/grounds_maintenance_art_exhibit_focuses/index.htm (last visited Feb. 5, 2004).

(142.) For the influence of golf on the residential lawn, see Virginia Scott Jenkins, "'Fairway Living": Lawncare and Lifestyle from Croquet to the Golf Course, in THE AMERICAN LAWN 116 (Georges Teyssot ed., 1999). Today there are approximately 25 million golfers in America. Hal Philips, Winners' Club: Success Stories from Public Golf Course Renovations, PARKS & RECREATION, June 1, 2003, at 38.

(143.) See Mark Blakemore, The ABC's of Golf, at http://www.pgaprofessional.com/ glossary (last visited Nov. 7, 2003).

(144.) United States v. Shates, 915 F. Supp. 1483, 1488-89 (N.D. Cal. 1995) ("While the trees do form a demarcation of the north side of the 'compound,' they are more akin to a mow line than to a fence. In a curtilage analysis, a fence may weigh more heavily in favor of finding curtilage, whereas a mow line weighs far less heavily.") The court goes on to assess aerial photographs of "mowing patterns" to determine the nature and use of each area of the compound but decides, in this case, they are inconclusive:
 Testimony at the hearing showed that, in the rural areas of
 Mendocino County, people mow for many reasons other than a well
 manicured lawn. The residents mow to prevent ticks from jumping on
 their legs, to prevent fires, and to curb what is described as "a
 serious problem with rattlesnakes."


Id. at 1489.

(145.) Mow-lines were analyzed before Dunn. See United States v. Van Dyke, 643 F.2d 992, 993 (4th Cir. 1981) ("The officers walked through the trees growing along the boundary between the two properties, climbed a fence, and moved 15 feet beyond the fence to a location 150 feet from the residence. There they lay down in a patch of honeysuckle bordering the mowed lawn."); Durham v. State, 471 S.W.2d 527, 529, 531 (Ark. 1971) ("The yard had been mowed and was fenced.... Unlike the field where the rifles were found, this yard was the curtilage of the Durham dwelling and, as such, subject to the same constitutional protection as the house itself." (emphasis added) (citing McDowell v. United States, 383 F.2d 599 (8th Cir. 1967) and Wattenburg v. United States, 388 F.2d 853 (9th Cir. 1968))); State v. Burch, 320 S.E.2d 28, 30 (N.C. Ct. App. 1984) ("A careful review of the evidence presented in this case indicates that the brush pile concealing the marijuana plants was in fact a part of the curtilage. The curtilage naturally began at the defendant's house. From his dwelling to the brush pile, there was sown grass which the defendant mowed with a regular yard mower.... [W]e need only to recognize that the curtilage extended at least as far as the brush pile where the marijuana was located. Because the marijuana was within the curtilage, it was unlawful for the officers to search the area and seize the plants without a search warrant or other circumstances justifying an exception to the warrant requirement.").

(146.) See infra note 176 and accompanying text.

(147.) See infra note 159 and accompanying text.

(148.) United States v. Dunn, 480 U.S. 294, 301 (1987).

(149.) Id.

(150.) See Williams v. Garrett, 722 F. Supp. 254, 260-61 (W.D. Va. 1989) ("[R]eading the word 'enclosure' in Dunn to require an artificial barrier seems unduly narrow. The boxwood hedge and the heavy woods created a natural enclosure around the home and yard; requiring a person to expend resources and sacrifice aesthetics by building a fence in order to obtain protection from unreasonable searches is not required by the constitution.").

(151.) Dunn, 480 U.S. at 301.

(152.) No. 208857, 1998 Mich. App. LEXIS 883 (Mich. Ct. App. Dec. 1, 1998).

(153.) Id. at *1.

(154.) Id. at *4-5.

(155.) 412 S.E.2d 477 (W. Va. 1991) (per curiam).

(156.) See id. at 479.

(157.) See supra note 64 and accompanying text.

(158.) Townsend, 412 S.E.2d at 479.

(159.) No. 99CA09, 1999 Ohio App. LEXIS 6008 (Ohio Ct. App. Dec. 9, 1999).

(160.) Id. at *9 (citations omitted) (quoting United States v. Dunn, 480 U.S. 294, 302 (1987)).

(161.) 308 F.3d 430 (4th Cir. 2002).

(162.) Id. at 437.

(163.) 604 N.W.2d 552 (Wis. 2000).

(164.) See id. at 554.

(165.) Id. "As defense counsel admitted to the circuit court, his 'client's home would not win a Martha Stewart award.' Instead, a twenty-foot clearing surrounds the house in which only low-lying weeds, brush, and wildflowers grow." Id. at 554-55.

(166.) Id. at 561 (citations omitted).

(167.) United States v. Dunn, 480 U.S. 294, 301 (1987).

(168.) No. 98-6116, 1999 U.S. App. LEXIS 3546 (6th Cir. Mar. 1, 1999).

(169.) Id. at *9.

(170.) Id. at *9-10.

(171.) No. C6-92-641, 1993 Minn. App. LEXIS 55 (Minn. Ct. App. Jan. 12, 1993).

(172.) Id. at *4.

(173.) Criminal No. 10587, 1997 Va. Cir. LEXIS 660 (Va. Cir. Ct. Jan. 27, 1997).

(174.) Id. at *17. One of the marijuana plants was found in a "bush-hogged" area (meaning that the grass in the area had been cut by a Bush Hog[R] brand lawnmower). The court concluded that this area was not "'so associated with the activities and privacies of domestic life' as to raise an inference that the [area is] a part of the curtilage." Id. at *19 (quoting United States v. Dunn, 480 U.S. 294, 301-02 (1987)).

(175.) See United States v. Rivard, No. 92-10064-01, 1993 U.S. Dist. LEXIS 2910, at *4 (D. Kan. Feb. 18, 1993) ("The officers never entered the mowed or finished area of the property."); State v. Chaussee, 866 P.2d 643,646 n.3 (Wash. Ct. App. 1994).

(176.) 793 F. Supp. 273 (D. Kan. 1992).

(177.) Id. at 275.

(178.) 124 F.3d 768 (6th Cir. 1997).

(179.) The court of appeals noted that "[d]efendants' backyard, much of which is shielded from the road by the house, consists of a neatly trimmed lawn...." Id. at 770.

(180.) Although the court of appeals held that the district court erred in denying the motion to suppress, it affirmed the defendant's conviction because the admission of the tainted evidence was harmless error. The task force had lawfully seized 862 marijuana plants from an open field behind the backyard. Id. at 774.

(181.) Id. at 773.

(182.) See also United States v. Reilly, 76 F.3d 1271, 1279 (2d Cir. 1996) ("The park-like appearance of the area made it readily apparent to observers that the area was private.").

(183.) No. 92 CA 527, 1992 Ohio App. LEXIS 6280, at *8 (Ohio Ct. App. Dec. 10, 1992).

(184.) See also State v. Tanner, No. 94 CA 2006, 1995 Ohio App. LEXIS 1028, at *11 (Ohio Ct. App. Mar. 10, 1995) ("In Bayless, we determined that a garden located approximately fifty feet from a house was within the curtilage of the house. The area between that house and garden was a mowed lawn.... In the case sub judice, the garden was located near the house. Appellant mowed the area near the garden.... We find that the evidence presented in the case sub judice supports a conclusion that the garden was within the curtilage of the house.").

(185.) Bayless, 1992 Ohio App. LEXIS 6280, at *7.

(186.) 875 F. Supp. 108, 119 (N.D.N.Y. 1994), aff'd, 76 F.3d 1271 (2d Cir. 1996).

(187.) The discussion in Reilly of the history and maintenance of the defendant's lawn included the following description:
 Sometime between 1987 to 1989, defendant had a local farmer plant a
 lawn on the entire area of the defendant's property between the main
 residence and the north boundary line as well as from the main
 residence to Woodard Road. A large tractor was used to till the soil
 and to plant seed. After the grass began to grow, the lawn was
 extensively roiled. At about the same time, defendant hired a local
 resident who mowed the lawn, tended gardens and placed mulch around
 most of the trees located on the property through September 1991.
 While the area between the main residence and the north boundary
 line was regularly mowed with both a push and riding mower, the
 front portion of the lawn, between the main residence and Woodard
 Road, was regularly mowed with a brush hog. In September 1991, the
 time of the allegedly unlawful search, the lawn had substantially
 grown throughout defendant's property, although it had been very dry
 as a result of drought conditions during the preceding summer
 months.


Id. at 112.

(188.) Id. at 113.

(189.) The outbuilding in Dunn, considered outside the curtilage, was 180 feet from the residence. United States v. Dunn, 480 U.S. 294, 302 (1987).

(190.) Reilly, 875 F. Supp. at 118.

(191.) Id. at 118-20.

(192.) Id. at 119-20 (quoting Dunn, 480 U.S. at 301) (citations and internal quotation marks omitted).

(193.) Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (internal quotation marks omitted).

(194.) See supra note 192 and accompanying text.

(195.) "This ambiguity of the lawn, of the threshold between the public space of the street and the private, familial, domestic space, has remained a constant of the American landscape since the moment of its colonization." Georges Teyssot, The American Lawn: Surface of Everyday Life, in THE AMERICAN LAWN, supra note 142, at 1, 15.

(196.) Therese O'Malley, The Lawn in Early American Landscape and Garden Design, in THE AMERICAN LAWN, supra note 142, at 64, 84 ("The lawn in the colonial and antebellum periods was rarely the 'green velvet carpet' portrayed in treatise literature. Lawns were not a standard feature of every citizen's home. But they were found at the houses of members of a political and cultural elite as well as an emerging educated middle class in the period of the early republic.").

(197.) See generally DAVID HACKETT FISCHER, ALBION'S SEED: FOUR BRITISH FOLKWAYS IN AMERICA 181-86, 390, 763 (1989) (stating, for example, that in Massachusetts, "villages and hamlets were common, and isolated homesteads were comparatively rare").

(198.) See JACKSON, supra note 122, at 55 (stating that "in colonial America the Puritans did believe that eternal salvation could best be won in a cohesive, tight community"); JOHN REPS, TOWN PLANNING IN FRONTIER AMERICA 1 (Univ. of Mo. Press 1980) (1965).

(199.) JACKSON, supra note 122, at 56 ("House siting ... followed no clear pattern before 1860."); VIRGINIA SCOTT JENKINS, THE LAWN: A HISTORY OF AN AMERICAN OBSESSION 27 (1994) (stating that "there was no clear pattern of house siting during the nineteenth century").

(200.) JACKSON, supra note 122, at 55.

(201.) Id. at 56 ("[S]mall towns copied the compact arrangements of larger cities.").

(202.) Id. at 55-56.

(203.) Id. at 56 ("Because regular garbage collection was rare before the Civil War, most families threw their refuse out the doors to scavenging dogs and pigs.").

(204.) Id. (stating that "[e]xcept for regular visits to the privy vault or outhouse, most people avoided the backyard entirely").

(205.) Id. See JENKINS, supra note 199, at 20.

(206.) See JENKINS, supra note 199, at 22-23.

(207.) Id. at 26 ("Mid-nineteenth-century architectural pattern books all showed detached houses, many surrounded by lawns.").

(208.) CLIFFORD EDWARD CLARK, JR., THE AMERICAN FAMILY HOME: 1800-1960, at 38 (1986) ("The plan-book houses were almost always pictured in isolated rural settings. No other homes were visible and the surrounding trees and shrubs seemed to provide both a sense of spaciousness and a feeling of privacy."); JACKSON, supra note 122, at 58 ("The new ideal was no longer to be part of a close community, but to have a self-contained unit, a private wonderland [figuratively] walled off from the rest of the world."); GWENDOLYN WRIGHT, MORALISM AND THE MODEL HOME 13 (1980) ("[T]he homes built from these pattern-book models were supposed to reinforce both a democratic spirit of progress and an individual family's sense of privacy."). But see WILLIAM J. NOVAK, THE PEOPLE'S WELFARE: LAW AND REGULATION IN NINETEENTH-CENTURY AMERICA 157 (1996) ("One of the most sacred and enduring myths in Anglo-American constitutionalism is Edward Coke's adage 'a man's house is his castle.' ... Despite such sentimental attachment to houses as quintessentially private spheres, public realities intruded all the time. As the New York fire cases made clear, all the king's men could not only cross a tenement's threshold, they could tear it down.").

(209.) See Teyssot, supra note 195, at 17.

(210.) See JENKINS, supra note 199, at 21. Andrew Jackson Downing, the most famous nineteenth-century pattern-book author, stated: "'[T]he close proximity of fences to the house gives the whole place a confined and mean character.... A wide spread lawn, on the contrary, where no boundaries are conspicuous, conveys an impression of ample extent and space for enjoyment.'" Id.

(211.) O'Malley, supra note 196, at 82 ("Llewellyn Park, New Jersey, a planned residential park begun in 1857, was a turning point between the great country estates and the middle-class suburban tract, and the treatment of the lawn was a key element of its innovative planning.").

(212.) Id. ("Since the goal was to make these private properties parklike, and therefore communal, buyers agreed there would be no fences separating the lots."). Compare this idea of the park-like setting as a communal space with the Reilly court's view of a park-like setting: "The park-like appearance of the area made it readily apparent to observers that the area was private." United States v. Reilly, 76 F.3d 1271, 1279 (2d Cir. 1996).

(213.) O'Malley, supra note 196, at 82 (stating that "the utilization of lawns and borrowed views [in Llewellyn Park] ... became a standard for suburban design of the next half century in America").

(214.) Teyssot, supra note 195, at 22 (stating the unwritten rule of architectural composition in the American suburb: "the inhabitant must maintain his lawn as a community place").

(215.) W.D. WETHERELL, THE MAN WHO LOVED LEVITTOWN 14 (1985).

(216.) See infra Part III.C; see also Nan Ellin, Shelter from the Storm or Form Follows Fear and Vice Versa, in ARCHITECTURE OF FEAR 13, 33 (Nan Ellin ed., 1997) ("The impulse to privatize is epitomized by the growth of gated communities, residential developments with patrolled entryways and a clear separation from other neighborhoods, usually by a secure fence.").

(217.) See Todd W. Bressi, Planning the American Dream, in PETER KATZ, THE NEW URBANISM: TOWARD AN ARCHITECTURE OF COMMUNITY, at xxv, xxvi (1994) ("The most powerful icon of the middle class, the single-family detached house surrounded by ample yards, has roots in Victorian-era mythology: The house was seen as a cradle, nurturing (and cultivating) the emerging independent nuclear family, and as a bulwark, insulating woman and children from the industrial city's evils.... And the house, protected in its residential enclave and surrounded by spacious yards, offered privacy and protection from outside contamination.").

(218.) 138 F.3d 1109 (7th Cir. 1998) (en banc).

(219.) Id. at 1110.

(220.) Id. at 1114.

(221.) Id. at 1132 (Posner, C.J., dissenting) ("If I am right to draw the line at the boundaries of the curtilage, the critical question in this case is whether the place where the garbage cans were set out for collection, at the head of Redmon's driveway, was within his curtilage.... My answer to the question ... is 'yes.'").

(222.) Judge Posner's dissent continued:
 The garage was attached to the house, and the garbage cans were
 right outside the garage, at the farthest point of the driveway from
 the street. If this spot was not within Redmon's curtilage--if it is
 to be classified as an 'open field'--then no place outside his house
 was within the curtilage, and, indeed, attached houses, row houses,
 and other cramped urban dwellings have no curtilage (beyond the
 house itself); curtilage is confined to farmers and to wealthy
 suburbanites and exurbanites.


Id.

(223.) Id.

(224.) 612 F. Supp. 777 (E.D. Cal. 1985) (holding that the aerial surveillance was unreasonable), rev'd, 805 F.2d 849 (9th Cir. 1986).

(225.) Id. at 790 n. 11. The court also stated:
 Moreover, where a rural business structure is located near, although
 not within, the curtilage of a farm residence, there is manifest a
 more likely possibility that the business enterprise is related to
 domestic life. Arguably, this is a factor for the Court's serious
 consideration in determining whether a privacy expectation in the
 structure is reasonable.


Id.

(226.) 632 F.2d 1149 (4th Cir. 1980).

(227.) Id. at 1159.

(228.) 537 F.2d 554 (1st Cir. 1976).

(229.) Id. at 558 (citations omitted).

(230.) Even before Dunn, the rural character of a residence was important. See United States v. Holmes, 521 F.2d 859 (5th Cir. 1975) (holding that the search of a shed was a violation of the curtilage), aff'd by an equally divided court on reh'g en banc, 537 F.2d 227 (5th Cir. 1976). "Whatever precautions a homeowner in an urban area might have to take to protect his activity from the senses of a casual passerby, a dweller in a rural area whose property is surrounded by extremely dense growth need not anticipate that government agents will be crawling through the underbrush by putting up signs warning the government to keep away." Holmes, 521 F.2d at 870.

(231.) See State v. Rogers, 638 A.2d 569, 573 (Vt. 1993) ("Defendants' home is not an urban residence for which privacy expectations are reduced exponentially as the distance from the home increases.").

(232.) See United States v. Johnson, 256 F.3d 895, 902 (9th Cir. 2001) ("[C]ourts have reasoned that the curtilage of a home in a rural area could extend farther than the curtilage of a home in an urban or suburban setting." (citation omitted)); United States v. Reilly, 76 F.3d 1271, 1277 (2d Cir. 1996) ("[C]urtilage may reach a larger area in a rural setting.... On a large parcel of land, a pond 300 feet away from a dwelling may be as intimately connected to the residence as is the backyard grill of the bloke next door."); see also Hart v. Myers, 183 F. Supp. 2d 512, 522 (D. Conn. 2002) ("Here, the hangpole [to hang deer carcasses] was approximately twenty-five yards away from the [hunting shed] structure. That distance is fairly short and could support an inference that the hangpole should be treated as part of the home. This is especially true in the outdoor or camp-like setting at issue here, because more of the activities intimately associated with the home will likely be conducted outside this home, which lacked plumbing, a stove and private sleeping quarters."), aff'd, 50 Fed. Appx. 45 (2d Cir. 2002).

(233.) However, one court, in discussing the difficulty of applying Dunn in the urban context, noted that the enclosure factor is not particularly relevant in the city and turned to factor three to resolve the curtilage question. Joyner v. State, 589 A.2d 1330, 1337 (Md. Ct. Spec. App. 1991) ("Likewise, the absence of a fence or other means of excluding passersby from the area may be less significant in an urban than in a rural area, since the configuration of the streets and houses in many parts of the city may make it impossible, or at least highly impracticable, to screen one's home and yard from view."). The court went on to give substantial weight to the "use factor." The court stated, "In any event, in an urban area, substantial weight may have to be accorded the uses to which one's real estate is put, for actual use of the yard and related property is likely to be the primary way in which one asserts an intimate tie to the home." Id.

(234.) United States v. Jenkins, 124 F.3d 768 (6th Cir. 1997).

(235.) Id. at 773.

(236.) See William H. Lucy & David L. Phillips, Suburbs and the Census: Patterns of Growth and Decline (Brookings Inst. Survey Series, Dec. 2001), http://www.brookings.edu/dybdocroot/es/urban/census/lucy.pdf (last visited Feb. 5, 2004).

(237.) See Commonwealth v. Oglialoro, 547 A.2d 387, 392 (Pa. Super. Ct. 1988) (Kelly, J., concurring) ("Given the heightened significance of the ancient concept of curtilage in modern Fourth Amendment jurisprudence, we will no doubt be called upon to apply that feudal concept in the strikingly non-feudal context of urban and suburban housing...."), aff'd, 579 A.2d 1288 (Pa. 1990).

(238.) See LEONIDAS W. RAMSEY, LANDSCAPING THE HOME GROUNDS 54 (1930) ("A man's home may be his castle, but his front lawn belongs to the public. At least this is the case in the great majority of American homes. The universal practice of establishing building lines and setting the house back from the street has created the typical American front yard. Custom has prescribed the leaving of the front yard open, providing a view of the house and the grounds."); see also FRED E.H. SCHROEDER, FRONT YARD AMERICA: THE EVOLUTION AND MEANINGS OF A VERNACULAR DOMESTIC LANDSCAPE 9 (1993) ("Exemplar of the American vernacular front yard at its best: open, neat, lawn without any visible division from the neighbor's, foundation plantings that neither obscure the view from the street nor ensure privacy within...."); SCHULTZ, supra note 137, at 41 ("In suburbia, the front lawn became the welcome mat to the home.").

(239.) See supra Part III.A.

(240.) Teyssot, supra note 195, at 1 (quoting Milwaukee gardening radio talk show host Lorrie Otto).

(241.) Oliver v. United States, 466 U.S. 170, 180 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).

Brendan Peters, J.D., Stanford Law School, 2003; M.Arch., Princeton University School of Architecture, 1999; B.S., University of Virginia School of Architecture, 1993. Executive Editor, Stanford Law Review, Volume 55. Special thanks to Ben Koodrich, his editing team, and the members of the Law Review; and most of all to my wife Jil for her love and immeasurable support.
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