Curtilage or Open Field? Vantage Point Matters to the Fourth Amendment

by | February 12, 2016

Investigators received an anonymous tip that Dixon was making methamphetamine in his home. When they went to investigate, they spoke with Dixon’s mother, who told them that Dixon lived in a nearby trailer through the woods. The investigators drove down a nearby gravel road, passed at least two more residences, and located Dixon’s trailer at the end of the road.

They noted several signs of methamphetamine production at Dixon’s trailer, including an open fire near the front door that smelled like burning plastic and windows covered from the inside. The investigators approached the front door, intending to knock-and-talk, but before they reached it, Dixon came out of the trailer and met them in front of the porch. Dixon declined to allow the investigators to enter the trailer.

As one investigator spoke with Dixon, the other walked around the side of the trailer in an area of tall weeds and grass at the edge of the woods. The investigator saw two bottles that appeared to be a one-step methamphetamine process. He could seek smoke coming from the back door of the trailer and he smelled odors consistent with methamphetamine production. The investigator testified that he stayed outside the curtilage, off the mowed portion of the vegetation, standing in an area used for dumping trash.

The investigators conducted a protective sweep and ordered the occupants outside. During the sweep the investigators saw other methamphetamine processes underway. They obtained a search warrant and called for a properly equipped search team.

The core issue before the court: whether the investigator was standing within the curtilage, which usually constitutes a Fourth Amendment intrusion, or whether he was in an “open field” when he saw the methamphetamine process. The court of appeals reversed Dixon’s conviction for manufacturing methamphetamine, holding that the investigator intruded upon the curtilage prior to seeing the methamphetamine labs at the back of the trailer. The Kentucky Supreme Court disagreed with the curtilage analysis, and reversed the intermediate appellate court decision.

The court’s analysis reminds officers of the factors used to distinguish between open fields and curtilage. Though backyards are almost always treated as part of the curtilage, the court stated that the lower court put too much emphasis on proximity and did not sufficiently examine other factors in the analysis of curtilage.

In United States v. Dunn (480 U.S. 294 (1987)), the U.S. Supreme Court described four factors to consider when determining whether an area falls within the curtilage:
1. The proximity of the area to the home
2. Whether the area is included within an enclosure surrounding the home
3. The occupant’s uses for the area
4. The steps taken to protect the area from observation by passersby

There was no fence or other barrier surrounding Dixon’s trailer. The investigator was standing in tall, uncut weeds and grass where piles of household trash had been dumped. Nothing suggested that Dixon had taken any steps to shield the back door and back area from the view of passersby. In this case, the investigator was careful to stay outside the area that Dixon, or anyone else, could reasonably claim as part of the living space (curtilage). The investigators’ caution paid off with an abundance of admissible evidence.

Commonwealth v. Dixon, 2016 WL 673543 (Ky. 2016)

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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