Residential Driveways and Curtilage
March 12, 2023 - Posted by Ed Esposito
A New Jersey Appellate Division Court recently had the opportunity to review a case to determine if an officer who walked onto the driveway of a home without permission or a warrant was lawfully there when he observed illegal narcotics in a hole in the home's front porch. In this case (State v. Ingram Docket A-1500-20), the Court analyzed the application of a home’s curtilage and the right to privacy that attaches to areas that are considered to be part of a home’s curtilage. Relying on the United States Supreme Court decisions in Collins v. Virginia and Florida v. Jardines, the Court determined that both “the driveway and porch are curtilage of the home, and those areas implicate the same constitutional protections as the rest of the house.” Quoting State v. Ingram.
The facts of the case unfolded when an officer and a detective were patrolling in an unmarked police car around 7:45 p.m. and saw a man, later identified as the defendant, standing by the front porch of a duplex. According to the officer, the property looked “abandoned”; the “exterior was in disrepair, the front porch was dilapidated”; “[t]he lawn was overgrown, there were no lights on, [and the] windows were broken.” Adjacent to the house was a grassy area, which could have been utilized as a driveway at one time, and there was a garage in the rear, directly behind it. When the officer saw defendant standing next to the front porch of the home, the officer noticed him looking down at a cigarette box he was holding. As the officer drove closer, he also saw a glass vial with “a yellow tinted liquid in it,” which the officer believed to be phencyclidine (PCP).
At that point, the defendant looked up, turned his back to the approaching vehicle, and blocked the officer's view of the vial. He then started “moving his arms” and when he turned back around, the officer did not see the cigarette box or vial. The defendant then walked away from the porch towards the sidewalk. The officers stopped, exited their car, and ordered defendant to stop. The detective then walked over to defendant, while the other officer walked to where defendant had been standing on the driveway, near the porch. The officer walked approximately five steps off the sidewalk and stood on a section of the concrete that was part of the driveway. From that vantage point on the driveway, the officer saw a “softball” size hole on the top of the porch, right by its edge. According to the officer, the hole was directly in his line of sight, and inside the hole he saw the cigarette box and glass vial. The officer reached into the hole, retrieved the items, and the detective placed defendant under arrest. Defendant was searched and found to be in possession of $441 in cash.
In this appeal, the Court ruled that “[b]ecause the driveway was part of the home's curtilage, we hold that the officer conducted an unlawful search and his subsequent observation of contraband in the hole in the porch did not satisfy the plain-view exception.” Ibid. According to the Court, “[a]lthough the trial court noted that the hole in the porch could be observed from the sidewalk, the officer never testified that he had observed the hole from the sidewalk. Instead, he testified he had walked five steps onto the driveway and then looked into the hole in the porch. Consequently, the officer’s search and seizure were conducted from the curtilage of the home. Moreover, there was no evidence that the officer was using an implied license to walk to a door to make an inquiry. Instead, it was undisputed that the officer walked onto the driveway to look for the vial, that is, to conduct a search.” Ibid.
Notably, the Court also stated that “[i]n making this holding, we do not say that a home's driveway will always be considered part of the curtilage. We recognize that there may be instances where a driveway is far enough away from the home and its immediate surroundings to not qualify as curtilage. Whether a court should apply an expectation of privacy analysis in such scenarios is a question for another day.” Ibid.
The Court in this case clarified that “existing New Jersey precedent must be interpreted and applied in the framework established by the United States Supreme Court in Jardines and Collins.” Ibid. The trial court, who determined the officer’s actions in this case were proper, relied on a New Jersey Supreme Court case, State v. Drew Johnson, 171 N.J. 192 (2002), and two Appellate Division cases: State v. Ford, 278 N.J.Super. 351 (App. Div. 1995), and State v. Wilson, 442 N.J.Super. 224 (App. Div. 2015), rev’d on other grounds, 227 N.J. 534 (2017).
During this appeal, the court said: “The trial court used those cases to reason that defendant had a diminished privacy expectation in the driveway and the front porch[.] To the extent that Johnson, Ford, or Wilson can be read to support an argument concerning diminished privacy expectations, those portions of the cases can no longer be applied under governing Fourth Amendment law. New Jersey courts are bound to follow United States Supreme Court decisions establishing constitutional protections afforded under the Fourth Amendment. … The United States Supreme Court has rejected the view that curtilage is subject to a diminished Fourth Amendment protection because the area is semi-private or because it carries a diminished privacy expectation. Consequently, in analyzing governmental searches and seizures, New Jersey courts must apply the principles and holdings set forth in Jardines and Collins, and to the extent that existing New Jersey precedent conflicts with those holdings, the United States Supreme Court cases govern.” Ibid.
A New Jersey Appellate Division Court recently had the opportunity to review a case to determine if an officer who walked onto the driveway of a home without permission or a warrant was lawfully there when he observed illegal narcotics in a hole in the home's front porch. In this case (State v. Ingram Docket A-1500-20), the Court analyzed the application of a home’s curtilage and the right to privacy that attaches to areas that are considered to be part of a home’s curtilage. Relying on the United States Supreme Court decisions in Collins v. Virginia and Florida v. Jardines, the Court determined that both “the driveway and porch are curtilage of the home, and those areas implicate the same constitutional protections as the rest of the house.” Quoting State v. Ingram.
The facts of the case unfolded when an officer and a detective were patrolling in an unmarked police car around 7:45 p.m. and saw a man, later identified as the defendant, standing by the front porch of a duplex. According to the officer, the property looked “abandoned”; the “exterior was in disrepair, the front porch was dilapidated”; “[t]he lawn was overgrown, there were no lights on, [and the] windows were broken.” Adjacent to the house was a grassy area, which could have been utilized as a driveway at one time, and there was a garage in the rear, directly behind it. When the officer saw defendant standing next to the front porch of the home, the officer noticed him looking down at a cigarette box he was holding. As the officer drove closer, he also saw a glass vial with “a yellow tinted liquid in it,” which the officer believed to be phencyclidine (PCP).
At that point, the defendant looked up, turned his back to the approaching vehicle, and blocked the officer's view of the vial. He then started “moving his arms” and when he turned back around, the officer did not see the cigarette box or vial. The defendant then walked away from the porch towards the sidewalk. The officers stopped, exited their car, and ordered defendant to stop. The detective then walked over to defendant, while the other officer walked to where defendant had been standing on the driveway, near the porch. The officer walked approximately five steps off the sidewalk and stood on a section of the concrete that was part of the driveway. From that vantage point on the driveway, the officer saw a “softball” size hole on the top of the porch, right by its edge. According to the officer, the hole was directly in his line of sight, and inside the hole he saw the cigarette box and glass vial. The officer reached into the hole, retrieved the items, and the detective placed defendant under arrest. Defendant was searched and found to be in possession of $441 in cash.
In this appeal, the Court ruled that “[b]ecause the driveway was part of the home's curtilage, we hold that the officer conducted an unlawful search and his subsequent observation of contraband in the hole in the porch did not satisfy the plain-view exception.” Ibid. According to the Court, “[a]lthough the trial court noted that the hole in the porch could be observed from the sidewalk, the officer never testified that he had observed the hole from the sidewalk. Instead, he testified he had walked five steps onto the driveway and then looked into the hole in the porch. Consequently, the officer’s search and seizure were conducted from the curtilage of the home. Moreover, there was no evidence that the officer was using an implied license to walk to a door to make an inquiry. Instead, it was undisputed that the officer walked onto the driveway to look for the vial, that is, to conduct a search.” Ibid.
Notably, the Court also stated that “[i]n making this holding, we do not say that a home's driveway will always be considered part of the curtilage. We recognize that there may be instances where a driveway is far enough away from the home and its immediate surroundings to not qualify as curtilage. Whether a court should apply an expectation of privacy analysis in such scenarios is a question for another day.” Ibid.
The Court in this case clarified that “existing New Jersey precedent must be interpreted and applied in the framework established by the United States Supreme Court in Jardines and Collins.” Ibid. The trial court, who determined the officer’s actions in this case were proper, relied on a New Jersey Supreme Court case, State v. Drew Johnson, 171 N.J. 192 (2002), and two Appellate Division cases: State v. Ford, 278 N.J.Super. 351 (App. Div. 1995), and State v. Wilson, 442 N.J.Super. 224 (App. Div. 2015), rev’d on other grounds, 227 N.J. 534 (2017).
During this appeal, the court said: “The trial court used those cases to reason that defendant had a diminished privacy expectation in the driveway and the front porch[.] To the extent that Johnson, Ford, or Wilson can be read to support an argument concerning diminished privacy expectations, those portions of the cases can no longer be applied under governing Fourth Amendment law. New Jersey courts are bound to follow United States Supreme Court decisions establishing constitutional protections afforded under the Fourth Amendment. … The United States Supreme Court has rejected the view that curtilage is subject to a diminished Fourth Amendment protection because the area is semi-private or because it carries a diminished privacy expectation. Consequently, in analyzing governmental searches and seizures, New Jersey courts must apply the principles and holdings set forth in Jardines and Collins, and to the extent that existing New Jersey precedent conflicts with those holdings, the United States Supreme Court cases govern.” Ibid.