First Among Equals: How the Curtilage Doctrine Bars a Terry Stop and Frisk Inside the Curtilage After Jardines and Collins

Authors

J. Ross Hamrick

Abstract

History and tradition confirm that the curtilage’s heightened pro-tections are a Fourth Amendment fixture. In Collins v. Virginia, the Supreme Court reaffirmed that understanding and relieved the tension between two strands of Fourth Amendment caselaw: the curtilage doc-trine and the automobile exception. The Court decided the automobile exception did not authorize warrantless entry into a person’s curtilage because extending the rule would detach the rationale from its original justifications. The curtilage, like a home, garners the highest Fourth Amendment protection. So when an officer trespasses onto the curti-lage, the privacy intrusion is far greater than the intrusion arising from a roadside vehicle search. There is a “separate and substantial” pri-vacy intrusion, said Justice Sotomayor, that the automobile exception never considered—an intrusion far greater than what the exception ever anticipated. The Court’s holding reflects what Jardines and ear-lier cases made clear: the curtilage is like the home for Fourth Amendment purposes, and absent consent or exigent circumstances, entering the curtilage without a warrant violates the Fourth Amend-ment. This Article addresses an issue Collins and Jardines left open: whether the Terry exception authorizes warrantless entry into the curtilage. It does not. Terry’s rationale carefully balanced the pub-lic interest—specifically, the interest in officer safety and crime pre-vention—against the minimal intrusion arising from a brief stop and frisk. It never considered the curtilage’s “separate and substantial” privacy interest. Extending Terry would unmoor the rationale from its underpinnings because that substantial privacy intrusion is far greater than the minimal intrusion Terry considered. Plus, Terry’s progeny never authorized warrantless entry into a home. There was always an independent, legal basis granting entry. Thus, officers may not conduct a stop and frisk inside the curtilage, unless there is an independent, legal basis for entering—like a warrant, consent, or exigent circumstances.

Recommended Citation

Hamrick, J. Ross (2022) "First Among Equals: How the Curtilage Doctrine Bars a Terry Stop and Frisk Inside the Curtilage After Jardines and Collins," University of Memphis Law Review: Vol. 52: Iss. 3, Article 1.
Available at: https://digitalcommons.memphis.edu/um-law-review/vol52/iss3/1