Fifth Circuit Notes Split Re Curtilage Determination

Per Mack v. City of Abilene, --- F.3d ----, 2006 WL 2361694 (Cir. Aug. 16, 2006):

The warrantless search of the Cadillac might be constitutional if the Cadillac was parked within the apartment's curtilage. Appellees had a valid warrant to search Appellant's apartment. The question before us is whether the Cadillac was a part of the apartment's curtilage and therefore subject to search pursuant to the warrant, assuming the warrant's scope could validly include the apartment's curtilage. "[T]he curtilage is the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life." Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (internal quotation marks omitted). We conclude that the Cadillac was not within the apartment's curtilage.

The circuits are split on the appropriate standard of review on a curtilage determination. [FN3]

FN3. See United States v. Breza, 308 F.3d 430, 435 (4th Cir.2002) (holding that the question of "curtilage is ultimately a legal one, and thus is subject to de novo review, while antecedent factual findings are reviewed for clear error"); United States v. Diehl, 276 F.3d 32, 38 (1st Cir.2002) (same); United States v. Johnson, 256 F.3d 895, 911-913 (9th Cir.2001) (same); Bleavins v. Bartels, 422 F.3d 445, 449 (7th Cir.2005) (stating that, in the context of a civil case evaluating a curtilage question, the grant of summary judgment is reviewed de novo); Daughenbaugh v. City of Tiffin, 150 F.3d 594, 597 (6th Cir.1998) (same). But see United States v. Benish, 5 F.3d 20, 24 (3d Cir.1993) ("[T]he question of the extent of curtilage is essentially factual and therefore we review only for clear error.") (internal quotation marks and citation omitted); United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir.1993) (same).