The curious case of curtilage.

March 19, 2023
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United States v. Banks (7th Cir. 2023) highlights the importance of securing a warrant when conducting a search, even when there is reasonable suspicion to believe that a crime is being committed. In the Banks case, a Springfield Illinois Police Officer saw a Snapchat post of Jeremy Banks, a convicted felon, grilling on his front porch with a gun sitting on the grill’s side shelf. When the Officers went to Banks house they saw Banks exactly where they expected to—on his porch, next to the grill. 

Officers approached Banks and contacted him resulting in a struggle that spilled into the living room of Bank’s residence. This led to the discovery of a loaded gun in his pocket and a box of ammunition in the front room. Banks asked the court to suppress the evidence, arguing that the officers’ intrusion on the porch without a warrant was unlawful.

What is curtilage and why should I care?

Curtilage is a legal term that refers to the area of land around a house or dwelling that is considered part of the home for legal purposes. It is an extension of the Fourth Amendment protection against unreasonable searches and seizures, which protects individuals from warrantless searches by the government. The curtilage of a home can include things like the yard, garden, driveway, and other areas immediately surrounding the home that are used for intimate activities like family gatherings, barbecues, or other private events.

The U.S. Supreme Court has recognized the importance of curtilage in several cases, including United States v. Dunn (1987) and Florida v. Jardines (2013). In Dunn, the Court established a four-factor test to determine whether an area should be considered curtilage, which includes:

  1. The proximity of the area 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.

In Jardines, the Court held that a police officer’s warrantless use of a drug-sniffing dog on the front porch of a home was an unconstitutional search because the porch was considered curtilage, and the use of the dog without a warrant violated the homeowner’s Fourth Amendment rights.

Overall, curtilage is an important legal concept that helps protect the privacy of individuals in their homes and is recognized as an extension of the Fourth Amendment protection against unreasonable searches and seizures.

An application of Terry v. Ohio

At an evidentiary hearing before a Magistrate Judge, Officers testified that they went to Banks house with the intent to arrest him. Officers did not believe they needed a search warrant to enter the porch because they had reasonable suspicion Banks was committing a crime by possessing a firearm as a convicted felon. The Magistrate examined the case through the lens of Terry v. Ohio which held that an officer who has reasonable suspicion to believe that dangerous criminal activity is afoot can briefly detain and frisk a person. 392 U.S. 1, 21–22 (1968). Additionally, based on United States v. Richmond, 924 F.3d 404 (7th Cir. 2019), the magistrate concluded that the officers had ample suspicion to step onto Banks’s front porch. Bank’s initial motion was denied.

A man’s kingdom and its curtilage

Banks appealed the motion in the 7th Circuit Court of Appeals and his suppression motion was overturned citing 4th amendment protections of Banks’ home and curtilage. The court reiterated that a person’s home is entitled to a high degree of protection under the Fourth Amendment, and the front porch of a residence is generally considered part of the curtilage that requires a warrant, consent, or some other Fourth Amendment exception like exigent circumstances. 

In this case, the court concluded that the officers could have avoided the outcome by taking a small but necessary step of obtaining a warrant. The suppression testimony confirmed that the County has a Judge on call 24 hours a day, 365 days a year to consider and issue search warrants. The officers had more than enough to pick up the telephone, call the on-duty judge, and get the authorization the Fourth Amendment required before stepping onto Banks’s porch.

Is curtilage a forbidden land?

We cannot know exactly what lead to the decisions of the Officers, but two things are clear from the available facts:

  1. Exigent circumstances did not exist that would allow them to enter the property.
  2. Officers expected to contact Banks at his residence with the intent to arrest him.

An intrusion upon the curtilage of a property can be a complicated matters with many factors to consider, like the physical layout of the property, distances from public areas, and the placement of objects like gates. If a Girl Scout could approach to door to sell cookies, then an Officer could approach the door to contact the resident. The bigger question is that of intent; the Girl Scout intended to sell a few boxes of those delicious Thin Mints while the Officers intended to arrest Mr. Banks.

This illustrates the confusion with access to curtilage. Should an Officer be prevented from knocking on a residents door when canvasing the neighborhood looking for witnesses for a recent vehicle burglary? Certainly not as the intent of the contact with the resident is completely consensual and no criminal liability would be applied to the resident. 

What do we learn from this?

Overall, this case serves as a reminder that Fourth Amendment protections apply not only to a person’s home but also to the curtilage surrounding it, including the front porch. Had the Officers applied for a warrant, Judicial insight would have been applied to the case before the critical step of contacting Mr. Banks. Although this would have been a very quick search warrant to write, it also gives Officers an opportunity to pause and consider other tactics that could reduce the chance of a violent encounter with a felon in possession of a firearm.

A simple search warrant could have easily avoided the suppression of evidence.