Opinion
No. 92-CRB-299-01.
Decided February 2, 1993.
Norman E. Brague, for the State.
V. Lee Winchell, for defendant.
This matter came to be heard upon the defendant's motion to suppress filed pursuant to Crim.R. 12. The issue presented by the motion is whether a Wadsworth police officer had the right to enter the driveway of the defendant's residence to examine his automobile that was parked in the driveway.
The facts are as follows:
On August 28, 1992, Officer Jeffrey Houston of the Wadsworth Police Department responded to a call at Ike's Restaurant. The nature of the call was that an automobile belonging to a James Lockwood had been damaged by the defendant, William Carter. The damage had allegedly been caused by the defendant slamming his car door into the side of the Lockwood vehicle. Eyewitnesses to the incident told the officer that the defendant had done it and that he lived at 117 Beck Street in the city of Wadsworth. The officer was also told that the defendant was driving a beige car.
After acquiring the above information, Officer Houston went to 117 Beck Street. By this time, it was dark. The officer could observe a beige car in the driveway which matched the description of the car he had been given by the witnesses. Officer Houston walked up to the car and observed an area on one of the doors of the car that consisted of streaks of dark blue paint. The significance of this was that the Lockwood vehicle was a dark blue vehicle. Officer Houston made no attempt to talk to anyone in the house, nor did he attempt to get permission to enter upon the driveway.
The car was located beside the house, approximately ten feet from the sidewalk in front of the house and approximately fifteen feet from the street. The car was not parked in a garage or any other enclosure. According to Officer Houston, he would have been able to see the dark paint on the beige car from the sidewalk, but he would not have been able to tell if it was black or blue.
What first must be determined is whether or not the location where the defendant's car was parked was within the curtilage. The significance of this determination is that the curtilage surrounding a person's home is accorded constitutional protection, but open fields, wooded areas, and the like are not so protected. Oliver v. United States (1984), 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214; Hester v. United States (1924), 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898.
If an area is within the curtilage of a home, then the police must have a warrant to come onto the premises or their entrance onto the curtilage would have to fall under a recognized exception to the warrant requirement. If, however, an area is not within the curtilage, then no warrant is required. United States v. Dunn (1987), 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326.
In Dunn, supra, the court laid out four factors to be used to determine whether an area falls within the curtilage of a home. The factors are as follows: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included within an enclosure; (3) the nature of the uses to which the area is put; and (4) the steps taken by the home's residents to protect the area from observation by people passing by.
In this case, factors No. 2 and No. 4 listed above cut against the defendant's position because the driveway is not located within a fence or other enclosure and no steps had been taken to protect the area of the driveway where the car was parked from observation by people passing by.
The first factor cuts in favor of the defendant's position, since the area in question was right next to the house.
The remaining factor, No. 3, the uses to which the area is put, is dispositive of this motion. In Fourth Amendment analysis, the focus is not on property interest, but on privacy interest. If a person has a reasonable expectation of privacy in a certain area, then the police may well need a warrant to intrude upon that space. Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. By listing the uses to which an area is put as the third factor in determining whether or not the area is within the curtilage of a house, the Supreme Court was focusing on whether or not there is a reasonable expectation of privacy in that area.
Driveways are not necessarily private areas. Items left in a driveway may be seen by those who use the driveway or who pass the house on the street. This is especially true in this case where the car was parked only fifteen feet from the street. It is not reasonable to expect that items placed in such a position will remain unscrutinized.
Therefore, this court holds that the defendant's car was not parked within the curtilage of his house, even though it was parked in close proximity to the house.
It should also be noted that under Fourth Amendment analysis, the fact that a police officer may be trespassing on private property is not relevant. Oliver, supra.
As a result of the above analysis, this court holds that the defendant's motion is overruled.
Reporter's Note: Defendant was acquitted by a jury on February 12, 1993.
So ordered.