exception. Relying on Work v. United States, 100 U.S. App. D.C. 237, 243 F.2d 660 (1957), he contends the drainpipe comes within the townhouse's curtilage and therefore the protection of the Fourth Amendment.
Curtilage has been defined as "[The] enclosed space of ground and buildings immediately surrounding a dwelling house." Black's Law Dictionary 460 (Rev. 4th ed. 1968).
See W. Ringel, Searches & Seizures, Arrests and Confessions, § 280, at 361-62 (1972). The Third Circuit has in fact specifically approved the application of the Fourth Amendment to the curtilage of a dwelling. United States ex rel. Boyance v. Myers, 398 F.2d 896, 899 (3d Cir. 1968). See also Fixel v. Wainwright, 492 F.2d 480, 483 (5th Cir. 1974); United States v. Molkenbur, 430 F.2d 563, 566 (8th Cir.), cert. denied, 400 U.S. 952, 91 S. Ct. 244, 27 L. Ed. 2d 258 (1972). However, exactly what the curtilage of a house encompasses is a more difficult question.
Not every object near or attached to a dwelling is entitled to Fourth Amendment protection. Whether a place is within the curtilage depends upon the facts of the case. Rosencranz v. United States, 356 F.2d 310, 313 (1st Cir. 1966). Circumstances to be considered include the object's proximity to the dwelling, whether it is enclosed with the dwelling, and its use as an adjunct to the domestic economy of the dwelling's inhabitants. United States v. Minker, 312 F.2d 632, 634 (3d Cir. 1962), cert. denied, 372 U.S. 953, 83 S. Ct. 952, 9 L. Ed. 2d 978 (1963). See Wattenburg v. United States, 388 F.2d 853, 857 (9th Cir. 1968).
The concept of curtilage has been significantly modified when applied to a multiple dwelling.
The Second Circuit, in United States v. Conti, 361 F.2d 153, 157 (2d Cir. 1966), vacated on other grounds, 390 U.S. 204, 88 S. Ct. 899, 19 L. Ed. 2d 1035 (1968), and United States v. Miguel, 340 F.2d 812, 814 (2d Cir. 1965), held that the lobby and hallways of a multiple dwelling, used in common by all the tenants, is not within the curtilage of the individual tenant.
Mr. Romano lived in one of a row of townhouse-student residences on a college campus. Access to them is not restricted. In front there is a sidewalk and there are no impediments such as fencing, planting or shrubs to set them off from other areas of the campus. The public also has complete freedom of access to the back of these buildings. Any number of people could have walked up to the drainpipe, which was on the rear, outside wall, just as they could have walked up to the rear door. Salesmen, students, visitors, campus officials, and even policemen were able to approach the drainpipe without intruding upon the private areas of the dwelling for the pipe was as accessible to the passerby as it was to those who lived in the townhouse. I conclude, therefore, that the drainpipe was not part of the curtilage of defendant's residence.
However, I am also mindful of the Supreme Court's admonition that "the Fourth Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576 (1967). Thus, the scope of protection should be based upon the degree of privacy an individual should reasonably expect rather than the venerable concept of curtilage. Wattenburg v. United States, supra at 858. Constitutional protection must be afforded to those areas in which there is "a reasonable expectation of freedom from governmental intrusion." Mancusi v. DeForte, 392 U.S. 364, 368, 88 S. Ct. 2120, 2124, 20 L. Ed. 2d 1154 (1968). Of course, each case must be decided upon its particular facts, but a test adopted by the Fifth Circuit seems to strike the right balance: it holds that a search is valid if it does not extend in to a part of the premises rightfully in the exclusive control of the one against whom the search is directed. United States v. Hughes, 441 F.2d 12, 17 (5th Cir.), cert. denied, 404 U.S. 849, 92 S. Ct. 156, 30 L. Ed. 2d 88 (1971); Garza-Fuentes v. United States, 400 F.2d 219, 222 (5th Cir. 1968), cert. denied, 394 U.S. 963, 89 S. Ct. 1311, 22 L. Ed. 2d 563 (1969). See United States v. Minker, supra.
On July 19, 1974, Romano's residence, Townhouse I, was occupied by five students, including the defendant. Each student had his own bedroom and study area over which he alone had complete control. However, all shared the use of the front and rear entrances, the hallways and stairs, the bathroom, living room, and kitchen. It is uncontested that Romano could have reasonably expected no governmental intrusion in his bedroom and study area since he had exclusive control over them.
Unfortunately, the other areas of the townhouse, including the drainpipe on the rear wall, were not within the exclusive control of the defendant and he could not have had any reasonable expectation of privacy when he placed the newspapers there. See United States v. Freeman, 426 F.2d at 1354; United States v. Minker, 312 F.2d 632, 634 (3d Cir. 1962).
Thus, I concluded that whether tested by the traditional concepts of curtilage, or by the more modern considerations of exclusive control, the newspapers seized from the drainpipe should not have been suppressed and were admissible against defendant.
There was no contention of any other error or that if the statements and fruits of the search were properly admissible, the evidence against the defendant was insufficient for conviction. Therefore, his motion must be denied.
AND NOW, this 3rd day of January, 1975, the motion of Francisco Jose Romano for a new trial is hereby denied and he is ordered to appear for sentence on Monday, January 13, 1975, at 9:30 A.M. in Court Room "6".
BY THE COURT:
J. WILLIAM DITTER JR. / J.