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Does a front yard count as curtilage? According to the Eighth Circuit Court of Appeals, not when it's a front yard with a motorcycle displaying a "For Sale" sign.
What does and does not count as curtilage is often perplexing to practitioners and law students alike. While the Eighth Circuit's decision in United States v. Bausby fleshes out the rule out a bit, it still leaves much to the legal imagination.
The curtilage saga all began when a concerned citizen thought he spotted a stolen motorcycle in defendant Chris Bausby’s chain-link fenced front yard with a “for sale” sign that contained a telephone number.
Eventually, police entered the yard and subsequently obtained a search warrant for the house. While searching Bausby’s home, the police found a 12-gauge shotgun. Bausby was convicted of being a felon in possession of a firearm.
At its core, the appeal addressed whether the cops were allowed to enter Bausby’s front yard.
Two Eighth Circuit judges decided that the yard was not curtilage because the open display of the motorcycle with the “for sale” sign invited the public to enter the yard and knock on the front door. One judge believed the yard was curtilage due to the location, fence, telephone number, and a “Beware of Dog” sign on the fence.
Still, all three judges decided that the police could pass through the unlocked, unchained gate and enter the yard to knock on the front door and inquire about the motorcycle.
Speaking of bewaring dogs, this decision follows the Supreme Court’s March ruling in Florida v. Jardines, in which the Court held, in a 5-4 split, that the warrantless use of trained police dogs to investigate a home and its immediate surroundings — including a front door — is a “search” within the meaning of the Fourth Amendment.
But that case doesn’t fit squarely with this one since it was essentially about a police dog sniff, a “beware of police dog” ruling, if you will. While police may lawfully knock on the front door, using the police dogs wasn’t OK.
When it comes to physical entries by people police, the apparent trend, followed by the Eighth Circuit, is to allow “plain view,” “knock and talk,” “good faith,” and “implied invitee entry” warrantless curtilage entries, reports Huffington Post.
It seems the golden formula to create a “reasonable expectation of privacy” is to implement a variety of physical barriers.
For your purposes, know that an unlocked and unchained gate in a chain link fence and a “Beware of Dog” sign sans dog in front yard, is not curtilage in the Eighth Circuit’s eyes. Slap on locks on your gate along with a “No Trespassing” sign and you just may pass curtilage muster.
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