Duhaime's Law Dictionary


Curtilage Definition:

The area around a home which harbors the intimate activity associated with the sanctity and privacy of it.

Related Terms: Fourth Amendment, Privacy, Open Fields Doctrine, Intrusion Upon Seclusion, Deadly Force

Curtilage may or may not be enclosed by fencing and includes any outhouses such as stand-alone garages or workshops.

It is a term one might come across in a search warrant which calls for a search of a specified "residence and curtilage".

The 2012 Criminal Code of Canada defines a dwelling house as follows, at §2:

"... the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way...."

In R. v. Le, Chief Justice Richard Scott of the Manitoba Court of Appeal deferred to these words:

"Academic authorities ... refer to the curtilage principle.... As the common law consistently recognized that authority to search must be strictly limited to the precise structure or place set out in the order (which would only include the curtilage....

"Curtilage generally includes all lands immediately associated with a building identified in the warrant]), a search of a dwelling-house does not import authority to search any outbuildings, garages, sheds, barns, receptacles, lockers, etc., at the same location as the principal residence."

curtilage signThe American Jurisprudence 2d proposes:

"The areas where people have constitutionally protected legitimate expectations of privacy include a person’s home and the curtilage surrounding it. The curtilage of a residence means the land immediately surrounding and associated with the home. For purposes of the Fourth Amendment, curtilage is the area to which extends the intimate activity associated with the sanctity of a person’s home and the privacies of life....

"A dwelling’s curtilage for Fourth Amendment purposes is generally the area so immediately and intimately connected to the home that within it, a resident’s reasonable expectation of privacy should be respected. "

In United States v. Dunn, Justice White of the Supreme Court of United States provided an excellent summary of the relevant law in that jurisdiction:

"The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself.

"The concept plays a part, however, in interpreting the reach of the Fourth Amendment. (T)he Fourth Amendment's protection accorded persons, houses, papers, and effects did not extend to the open fields, the Court observing that the distinction between a person's house and open fields is as old as the common law....

"(T)he Fourth Amendment protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. (T)he central component of this inquiry ... (is) whether the area harbors the intimate activity associated with the sanctity of a man's home and the privacies of life.

"(C)urtilage questions should be resolved with particular reference to four factors: (1) the 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.

"We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a correct answer to all extent-of-curtilage questions. 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."

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