[1.] the proximity of the area claimed to be curtilage to the home[;]
The decision of the Hopkins court to use the Dunn factors in its analysis is noteworthy because the Jardines majority "did not apply those factors or even cite Dunn." (33) The Jardines majority opinion may have omitted any reference to Dunn because the front porch of a single-family house was an obvious example of curtilage and "the classic exemplar of an area adjacent to the home and 'to which the activity of home life extends.'" (36) Despite the Jardines majority's relunctance to employ the Dunn factors, lower courts have frequently cited and relied heavily upon those factors in determining whether curtilage exists within multiunit dwellings.
Because the Dunn factors were originally developed when considering the curtilage designation of a barn, (37) there are real questions regarding the factors' applicability to urban settings.
To be clear, the concept of "personal curtilage" is as much a legal fiction (40) as traditional property-based curtilage, but as this Article will develop, both are necessary fictions that allow a balance between personal and societal security.
Part II looks at the concept of Fourth Amendment curtilage as a definitional frame to create a parallel space in public.
Part III defines the theory of personal curtilage. Building off the argument that security and not privacy is the better foundation to structure Fourth Amendment protections, it focuses on individual actions that mark out areas of protected space to further the autonomy interests of individuals.
Federal law enforcement officers sought and received a court order permitting the installation and monitoring of a video camera affixed to a power pole that would enable them to peer over a 10-foot-high fence at the back of his yard within the curtilage. (23) The order relied upon an "extensive affidavit," and the application upon which the order was based "explained that conventional law enforcement techniques, although attempted, had failed to uncover enough evidence to convict the drug traffickers." (24) The order limited the initial period of surveillance to 30 days, mandated minimization, and directed law enforcement to "discontinue the surveillance when none of the suspected participants were on the premises." (25)
Relying on Ciralo, the government urged that this was so because a "power company lineman on the top of the pole or a policeman on top of a truck could peer over the 10-foot rear fence." (26) The Fifth Circuit dismissed the government's argument, noting first that Cuevas-Sanchez had certainly exhibited a subjective expectation of privacy by erecting the fence that "screen[ed] the activity from casual observers." (27) Additionally, the area the camera surveilled, said the court, constituted "the curtilage of his home, an area protected by traditional Fourth Amendment analysis." (28) The Fifth Circuit observed that pole- camera surveillance "provokes an immediate negative visceral reaction: indiscriminate video surveillance raises the spectre of an Orwellian state." (29)
Supreme Court had occasion to again consider the aerial surveillance of a suspect's curtilage by law enforcement in Florida v.
(9) "house" now includes curtilage, (10) and because curtilage
how far the curtilage extends from the house to determine the scope of
the curtilage will be clearly marked; and the conception defining the