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Arlington CHP Overdue
- Thread starter mdinnie
- Start date
TexasNative
Regular Member
imported post
ravonaf wrote:
Mike wrote:
But if you own a farm, for instance, you can't legally carry concealed on it without a permit.
ETA the link that I originally forgot to go back and add.
ravonaf wrote:
That's what § 18.2-308 says, but I think you missed (as I did, originally) a key phrase that Mike included. Let me requote with different bolding:
Mike wrote:
This means in your house and, basically, your yard (the area immediately surrounding your house).
But if you own a farm, for instance, you can't legally carry concealed on it without a permit.
ETA the link that I originally forgot to go back and add.
Mike
Site Co-Founder
imported post
TexasNative wrote:
TexasNative wrote:
No way - the whole yard? No, only the very inner samctim of property around your house - like within a few feet and behind a fence or hedges on on your porch or deck - curtilage is a vey vague term, and is not meant to encompass your whole yard.Good grief man - its only your curtilage!:shock:
mdinnie
Regular Member
imported post
Mike wrote:
I meant because of the gun free school zone act and a lack of CHP, I could not step off my property because I live within the 1000 ft school zone.
Mike wrote:
Thanks Mike.
I meant because of the gun free school zone act and a lack of CHP, I could not step off my property because I live within the 1000 ft school zone.
TexasNative
Regular Member
imported post
Mike wrote:
Mike wrote:
Is that how it's defined in Virginia, Mike? Because it's certainly not defined that restrictively everywhere.
TexasNative
Regular Member
imported post
As an example, here's a quote from Bare v. Commonwealth, decided by the Supreme Court of Appeals of Virginia in 1917:
So, yeah. Your whole yard.
As an example, here's a quote from Bare v. Commonwealth, decided by the Supreme Court of Appeals of Virginia in 1917:
References there and elsewhere indicate that in England, while a curtilage was generally understood to have a fence at its boundary, such is not the case in the United States.
So, yeah. Your whole yard.
Mike
Site Co-Founder
imported post
TexasNative wrote:
Uh, no, its not so simple or else the police could not generally search your yardand other open fields at will without violating the 4th Amendment. See dicussion below from Robinson v. Commonwealth,612 S.E.2d 751 (Va. App. 2005).
Notice how subjective the determination is - especially the line at the end emphasized by the Robinson court! **"extremely close to appellant's house and could not be viewed by pedestrians and drivers passing in front of the house"**
Do you think courts are going to liberaly construe curtilage for you when you are carrying a hidden gun without any permit and lurking about your yard in full view of the general public passing by?
'Nuff said.
--
Generally, the curtilage of a home is the "area around the home to which the activity of home life extends." Oliver, 466 U.S. at 180, 104 S.Ct. at 1742; see also Wellford v. Commonwealth, 227 Va. 297, 301, 315 S.E.2d 235, 238 (1984) (defining "curtilage" as the "space necessary and convenient, habitually used for family purposes and the carrying on of domestic employment; the yard, garden or field which is near to and used in connection with the dwelling"). "[W]hether a particular place is within the curtilage of the home is determined on a case-by-case basis." Jefferson, 27 Va.App. at 16, 497 S.E.2d at 481 (citing United States v. Dunn, 480 U.S. 294, 301 n. 4, 107 S.Ct. 1134, 1140 n. 4, 94 L.Ed.2d 326 (1987)). In determining whether the area in question constitutes curtilage, "particular reference" to the following four factors is helpful:
[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.
*606 Dunn, 480 U.S. at 301, 107 S.Ct. at 1140; Jefferson, 27 Va.App. at 16, 497 S.E.2d at 481. "[T]hese factors are useful analytical **758 tools only to the degree that, in any given case, they bear upon the centrally relevant consideration--whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." Dunn, 480 U.S. at 301, 107 S.Ct. at 1140.
Applying the Dunn factors to this case, we conclude that the portion of the driveway from which Cox observed the juveniles drinking beer--the area next to the bush--falls within the curtilage of the Robinsons' home. First, the area next to the bush is within a few feet of the home itself. Second, the Robinsons testified that they used the area for washing cars and unloading groceries, home-related activities that evidence the "nature of the uses to which the area is put." See id. Third, although the area next to the bush is not "included within an enclosure surrounding the home," see id., the area is protected from public observation. Specifically, although the Robinsons did not erect a fence or post any no-trespassing signs, the trees and layout of the driveway obscure the area from public view. It is evident, therefore, that the area next to the bush is "protect[ed] ... from observation by people passing by." Id. Given that three out of the four Dunn factors are satisfied, we are compelled to conclude that the area next to the bush is "intimately tied to the home itself" and, thus, falls within the curtilage of the Robinsons' home. See Jefferson, 27 Va.App. at 17, 497 S.E.2d at 482 (finding that place of defendant's arrest constituted curtilage because "the proximity of the place where Officer Harpster arrested appellant was extremely close to appellant's house and could not be viewed by pedestrians and drivers passing in front of the house " (emphasis added)); see also United States v. Jenkins, 124 F.3d 768, 773 (6th Cir.1997) (finding that defendant's backyard is curtilage because it was "well shielded from the view of people passing by on the only public thoroughfare near defendant's property").
TexasNative wrote:
Uh, no, its not so simple or else the police could not generally search your yardand other open fields at will without violating the 4th Amendment. See dicussion below from Robinson v. Commonwealth,612 S.E.2d 751 (Va. App. 2005).
Notice how subjective the determination is - especially the line at the end emphasized by the Robinson court! **"extremely close to appellant's house and could not be viewed by pedestrians and drivers passing in front of the house"**
Do you think courts are going to liberaly construe curtilage for you when you are carrying a hidden gun without any permit and lurking about your yard in full view of the general public passing by?
'Nuff said.
--
Generally, the curtilage of a home is the "area around the home to which the activity of home life extends." Oliver, 466 U.S. at 180, 104 S.Ct. at 1742; see also Wellford v. Commonwealth, 227 Va. 297, 301, 315 S.E.2d 235, 238 (1984) (defining "curtilage" as the "space necessary and convenient, habitually used for family purposes and the carrying on of domestic employment; the yard, garden or field which is near to and used in connection with the dwelling"). "[W]hether a particular place is within the curtilage of the home is determined on a case-by-case basis." Jefferson, 27 Va.App. at 16, 497 S.E.2d at 481 (citing United States v. Dunn, 480 U.S. 294, 301 n. 4, 107 S.Ct. 1134, 1140 n. 4, 94 L.Ed.2d 326 (1987)). In determining whether the area in question constitutes curtilage, "particular reference" to the following four factors is helpful:
[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.
*606 Dunn, 480 U.S. at 301, 107 S.Ct. at 1140; Jefferson, 27 Va.App. at 16, 497 S.E.2d at 481. "[T]hese factors are useful analytical **758 tools only to the degree that, in any given case, they bear upon the centrally relevant consideration--whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." Dunn, 480 U.S. at 301, 107 S.Ct. at 1140.
Applying the Dunn factors to this case, we conclude that the portion of the driveway from which Cox observed the juveniles drinking beer--the area next to the bush--falls within the curtilage of the Robinsons' home. First, the area next to the bush is within a few feet of the home itself. Second, the Robinsons testified that they used the area for washing cars and unloading groceries, home-related activities that evidence the "nature of the uses to which the area is put." See id. Third, although the area next to the bush is not "included within an enclosure surrounding the home," see id., the area is protected from public observation. Specifically, although the Robinsons did not erect a fence or post any no-trespassing signs, the trees and layout of the driveway obscure the area from public view. It is evident, therefore, that the area next to the bush is "protect[ed] ... from observation by people passing by." Id. Given that three out of the four Dunn factors are satisfied, we are compelled to conclude that the area next to the bush is "intimately tied to the home itself" and, thus, falls within the curtilage of the Robinsons' home. See Jefferson, 27 Va.App. at 17, 497 S.E.2d at 482 (finding that place of defendant's arrest constituted curtilage because "the proximity of the place where Officer Harpster arrested appellant was extremely close to appellant's house and could not be viewed by pedestrians and drivers passing in front of the house " (emphasis added)); see also United States v. Jenkins, 124 F.3d 768, 773 (6th Cir.1997) (finding that defendant's backyard is curtilage because it was "well shielded from the view of people passing by on the only public thoroughfare near defendant's property").
TexasNative
Regular Member
imported post
Faulty reasoning there, Mike. Just because something doesn't meet the exact circumstances as described in that particular case doesn't mean it's not considered curtilage.
Further, the ruling specifically states:
1) "[W]hether a particular place is within the curtilage of the home is determined on a case-by-case basis."
2) curtilage is the "space necessary and convenient, habitually used for family purposes and the carrying on of domestic employment; the yard, garden or field which is near to and used in connection with the dwelling."
Hell, it uses "yard" right there in the definition. I think you're reaching waaay beyond the definition of curtilage in that ruling to come up with your scary interpretation of the law.
But all that being said, this is one of the reasons why I have a CHP. As long as I'm not in an alcohol-serving restaurant, if I intend to openly carry and accidentally conceal my handgun, I'm still okay. Even if I'm located in my home's curtilage.
~ Boyd
Faulty reasoning there, Mike. Just because something doesn't meet the exact circumstances as described in that particular case doesn't mean it's not considered curtilage.
Further, the ruling specifically states:
1) "[W]hether a particular place is within the curtilage of the home is determined on a case-by-case basis."
2) curtilage is the "space necessary and convenient, habitually used for family purposes and the carrying on of domestic employment; the yard, garden or field which is near to and used in connection with the dwelling."
Hell, it uses "yard" right there in the definition. I think you're reaching waaay beyond the definition of curtilage in that ruling to come up with your scary interpretation of the law.
But all that being said, this is one of the reasons why I have a CHP. As long as I'm not in an alcohol-serving restaurant, if I intend to openly carry and accidentally conceal my handgun, I'm still okay. Even if I'm located in my home's curtilage.
~ Boyd
Mike
Site Co-Founder
imported post
TexasNative wrote:
“At common law, the 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, 1742, 80 L.Ed.2d 214 (1984) (citations omitted). It is the “land immediately surrounding and associated with the home.” Allen v. Commonwealth, 353 S.E.2d 162, n.1 (Va. App. 1987).
"[T]he area of a residential backyard immediately adjacent to the home's back door is commonly understood as “an area ... to which the activity of home life extends.” Oliver, 466 U.S. at 182 n. 12, 104 S.Ct. at 1743 n. 12 (stating that the concept of the style="BACKGROUND-COLOR: #ffff00"curtilage “is a familiar one easily understood from our daily experience”)." Jefferson v. Commonwealth,497 S.E.2d 474 (Va. App. 1998). (emphasis in original).
As the court said in Williams v. Commonwealth,2007 WL 654320 (Va. App. 2007):
--
Williams also contends that his convictions should be reversed since the police did not have exigent circumstances to justify their entry onto the curtilage of his home. We disagree, and hold that Williams did not have a reasonable expectation of privacy in his front yard, as it was clearly visible from the street, and that the police therefore did not need exigent circumstances in addition to probable cause for Williams' arrest.
It is well settled that “absent (1) exigent circumstances and probable cause or (2) consent, law enforcement agents cannot enter the curtilage of a person's home either to search or seize without previously obtaining a warrant.” Jefferson, 27 Va.App. at 16, 497 S.E.2d at 481. At common law, the curtilage was defined as “the area immediately surrounding a dwelling house.” United States v. Dunn, 480 U.S. 294, 300 (1987). Whether the area is “place[d] ... under the home's ‘umbrella’ of Fourth Amendment protection” is, however, a case-by-case determination. Id. at 301. In making that determination, courts look to four factors:
*5 [T]he proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.
Id. These factors “bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.” Id. (citing Oliver v. United States, 466 U.S. 170, 180 (1984)).
Applying the Dunn factors to this case, we conclude that Williams did not have a reasonable expectation of privacy in his front yard and that it was therefore not subject to the same Fourth Amendment protections as Williams' home. While Williams' mother testified that the area immediately adjoined the home and was used for the family to gather with friends and socialize, both factors that tend towards viewing the yard as an area within the home's umbrella of Fourth Amendment protections, those factors are not dispositive.
The area is not enclosed or landscaped in any way. Most persuasively, the area is completely visible from the street. Thus, the area in question was not “protected ... from observation by people passing by.” Id.; see also Shaver v. Commonwealth, 30 Va.App. 789, 793, 797, 520 S.E.2d 389, 395, 397 (1999) (holding appellant had no expectation of privacy when driveway where stolen goods were located was completely visible from the road); cf. Jefferson, 27 Va.App. at 17, 497 S.E.2d at 482 (finding that appellant had a reasonable expectation of privacy in the place of his arrest because “the proximity of the place where [the officer] arrested appellant was extremely close to appellant's house and could not be viewed by pedestrians and drivers passing in front of the house ” (emphasis added)); United States v. Jenkins, 124 F .3d 768, 773 (6th Cir.1997) (finding appellant's backyard was an area in which he had a reasonable expectation of privacy because it was “ well shielded from the view of people passing by on the only public thoroughfare near defendant's property” (emphasis added)). Here, the police were able to stand in a public street and observe Williams, whom they had probable cause to arrest and search, standing in plain view.
TexasNative wrote:
You don't seem to understand that when it comes to yards, the exception to yards swallow the rule.
“At common law, the 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, 1742, 80 L.Ed.2d 214 (1984) (citations omitted). It is the “land immediately surrounding and associated with the home.” Allen v. Commonwealth, 353 S.E.2d 162, n.1 (Va. App. 1987).
"[T]he area of a residential backyard immediately adjacent to the home's back door is commonly understood as “an area ... to which the activity of home life extends.” Oliver, 466 U.S. at 182 n. 12, 104 S.Ct. at 1743 n. 12 (stating that the concept of the style="BACKGROUND-COLOR: #ffff00"curtilage “is a familiar one easily understood from our daily experience”)." Jefferson v. Commonwealth,497 S.E.2d 474 (Va. App. 1998). (emphasis in original).
As the court said in Williams v. Commonwealth,2007 WL 654320 (Va. App. 2007):
--
Williams also contends that his convictions should be reversed since the police did not have exigent circumstances to justify their entry onto the curtilage of his home. We disagree, and hold that Williams did not have a reasonable expectation of privacy in his front yard, as it was clearly visible from the street, and that the police therefore did not need exigent circumstances in addition to probable cause for Williams' arrest.
It is well settled that “absent (1) exigent circumstances and probable cause or (2) consent, law enforcement agents cannot enter the curtilage of a person's home either to search or seize without previously obtaining a warrant.” Jefferson, 27 Va.App. at 16, 497 S.E.2d at 481. At common law, the curtilage was defined as “the area immediately surrounding a dwelling house.” United States v. Dunn, 480 U.S. 294, 300 (1987). Whether the area is “place[d] ... under the home's ‘umbrella’ of Fourth Amendment protection” is, however, a case-by-case determination. Id. at 301. In making that determination, courts look to four factors:
*5 [T]he proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.
Id. These factors “bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.” Id. (citing Oliver v. United States, 466 U.S. 170, 180 (1984)).
Applying the Dunn factors to this case, we conclude that Williams did not have a reasonable expectation of privacy in his front yard and that it was therefore not subject to the same Fourth Amendment protections as Williams' home. While Williams' mother testified that the area immediately adjoined the home and was used for the family to gather with friends and socialize, both factors that tend towards viewing the yard as an area within the home's umbrella of Fourth Amendment protections, those factors are not dispositive.
The area is not enclosed or landscaped in any way. Most persuasively, the area is completely visible from the street. Thus, the area in question was not “protected ... from observation by people passing by.” Id.; see also Shaver v. Commonwealth, 30 Va.App. 789, 793, 797, 520 S.E.2d 389, 395, 397 (1999) (holding appellant had no expectation of privacy when driveway where stolen goods were located was completely visible from the road); cf. Jefferson, 27 Va.App. at 17, 497 S.E.2d at 482 (finding that appellant had a reasonable expectation of privacy in the place of his arrest because “the proximity of the place where [the officer] arrested appellant was extremely close to appellant's house and could not be viewed by pedestrians and drivers passing in front of the house ” (emphasis added)); United States v. Jenkins, 124 F .3d 768, 773 (6th Cir.1997) (finding appellant's backyard was an area in which he had a reasonable expectation of privacy because it was “ well shielded from the view of people passing by on the only public thoroughfare near defendant's property” (emphasis added)). Here, the police were able to stand in a public street and observe Williams, whom they had probable cause to arrest and search, standing in plain view.
TexasNative
Regular Member
imported post
And you don't seem to understand the difference between what would be curtilage for the purposes of privacy and applicability of the 4th Amendment, distinct from §18.2-308.B. In particular, the area's visibility from the street and whether the area is "protected ... from observation by people passing by" clearly has no bearing on the appropriateness of concealed carry.
Further, in Robinson, just because the decision says that one particular area is considered to be curtilage, that doesn't mean that other areas aren't curtilage. Moreso, that decision clearly states that the driveway cuts across the home's curtilage, and states that repeatedly. It also talks about the "front sidewalk" also crossing curtilege. How do you ignore those statements?
Again, as I said in my prior post, anyone who doesn't want to become a test case for what §18.2-308.B means by "curtilage" would be well advised to either have a CHP or not carry concealed outside their home.
But I still contend that characterizing someone's yard more than a step or two away from their home as not being curtilage for CC purposes flies in the face of legal definitions and case law. This isn't to say it couldn't be ruled that way, but the cases I've read, including the ones you've quoted, Mike, absolutely do not support that position.
~ Boyd
And you don't seem to understand the difference between what would be curtilage for the purposes of privacy and applicability of the 4th Amendment, distinct from §18.2-308.B. In particular, the area's visibility from the street and whether the area is "protected ... from observation by people passing by" clearly has no bearing on the appropriateness of concealed carry.
Further, in Robinson, just because the decision says that one particular area is considered to be curtilage, that doesn't mean that other areas aren't curtilage. Moreso, that decision clearly states that the driveway cuts across the home's curtilage, and states that repeatedly. It also talks about the "front sidewalk" also crossing curtilege. How do you ignore those statements?
Again, as I said in my prior post, anyone who doesn't want to become a test case for what §18.2-308.B means by "curtilage" would be well advised to either have a CHP or not carry concealed outside their home.
But I still contend that characterizing someone's yard more than a step or two away from their home as not being curtilage for CC purposes flies in the face of legal definitions and case law. This isn't to say it couldn't be ruled that way, but the cases I've read, including the ones you've quoted, Mike, absolutely do not support that position.
~ Boyd