By Maura Levine, Columnist
Published October 10, 2013
Day parties, crisp fall afternoons with friends and front-yard pong games might as well be on a poster displaying the ultimate college experience. Socializing in the open breeze is comfortable and often a nice escape from the heat and noise of a party. But if you are outside your technical “home” and on the front porch, are you in “public?”
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In short, the answer is no. You don’t leave your legal rights to privacy when you enter the porch. Students have the right, just like any other U.S. citizen, to refuse a police officer from searching their front porch without a warrant.
Legal battles have been fought and won by citizens over this very subject. In the recent U.S. Supreme Court case Florida v. Jardines, the court ruled that the front porch of a home is a facet of the home itself and thus protected under the Fourth Amendment. The porch is considered private property and therefore cannot be searched without a warrant.
In the case of Joelis Jardines, a police officer walked up to his front door when a police narcotics dog starting sniffing around Jardines’s front porch. The dog signaled that there were drugs present, the officers obtained a warrant, and Jardines was subsequently arrested and charged with the trafficking of marijuana. Jardines claimed that the dog’s sniffs constituted a “search” under the Fourth Amendment and weren’t permissible as evidence against him because the evidence was gathered without a warrant on his private property, thus also invalidating the second search with a warrant. Since the porch was out in the open for the public to see, did it still count as private property?
The Court ruled that, by going onto the porch, police officers conducted a preliminary search without a warrant, which is illegal. Now, a police search of a porch without a warrant is considered federally unlawful.
Historically speaking, this interpretation is nothing new. The idea of the exterior of a home being part of the private residence is centuries old and is upheld by old English common law. The definition of outdoor space surrounding a home is also known as the “curtilage” of a residence. In 1891, Black’s Law Dictionary argued that “the enclosed space of ground and buildings immediately surrounding a dwelling-house … includes all that space of grounds and buildings thereon” is the curtilage of the home.
This definition has been important for purposes of refining the Fourth Amendment. Present-day U.S. courts have often interpreted the word “home” to be concurrent with the Middle English definition of “curtilage,” meaning that U.S. citizens are protected from unlawful searches and seizures on their property including the immediate area surrounding their home.
There’s something slightly comforting about knowing that your yard, porch, barbecuing area and outdoor space — which can be seen by the general public on the street — is legally “yours.” In college, we often enjoy this space as if it were within the private walls of our enclosed homes. Protection under curtilage and the Fourth Amendment allows us to enjoy and share the outdoors with family and friends.
Generally, when police officers enter a home to bust a party or look for drugs, they do so without a search warrant. How do they get away with this? The occupants almost always let them in.
If a police officer walks up to your house and asks to come inside you don’t have to let him or her in unless a warrant with your name on it is present. If the officer enters your porch, he or she has entered your private property and can’t search anything without a warrant. As a student, your rights don’t change just because you are holding a beverage and standing on your front porch.
Remember your rights. You don't even have to answer any questions, even if you’re standing on your front porch. We don't leave our rights at the door — it’s safe to say they extend at least out to the public sidewalk.
Maura Levine can be reached at firstname.lastname@example.org