Fifth Circuit Notes Split Re: Standard of Review for Fourth Amendment Curtilage Determination

Per Mack v. City of Abilene, 461 F.3d 547 (5th Cir. Aug. 16, 2006):

The focus of this case is whether Appellant Christopher Mack's Fourth Amendment rights were violated by a series of warrantless vehicle searches.

. . .

The circuits are split on the appropriate standard of review on a curtilage determination. [FN3] In civil cases, however, all courts agree that antecedent facts found by the district court pursuant to such a determination are reviewed for clear error. Here, we need not decide the correct review of a district court's constitutional determination because the district court declined to decide the constitutional curtilage question.

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).