What Constitutional Protections Does A Person Have In Their Backyard?

As we have noted in our examination of Fourth Amendment jurisprudence, a person has Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution protection against unreasonable searches and seizures. The litmus test for this protection is whether a person has an objectively reasonable expectation of privacy in the thing or place that is subject to the search. This includes not only a person's home, but also in the curtilage of his home.

Curtilage is defined as "the area around the home to which the activity of home life extends." Thus, it is more than the shrubs in the front of the home or the patio in the backyard. What are the limitations to this rule, though?

To determine what area is curtilage (more imporantly, the area that has Fourth Amendment protection), the courts have established a four prong test. These factors are:

(1) the proximity of the area that is claimed to be curtilage to the home;

(2) is there an enclosure around the curtilage (e.g, a fence);

(3) the use to which the area is put; and

(4) the measures that the resident took to protect the area's privacy.

The ultimate determination is made on a case-by-case basis and the court will all circumstances to come to a determination. Tomorrow, we examine a unique situation to illustrate some of the nuances of the "law of curtilage".

If you have been charged with a possession of a controlled substance, contact a Plano criminal defense attorney today.