State v. Jennifer Moustafa, 2022AP1315, 9/10/24, District III (1-judge decision, ineligible for publication); case activity
COA affirms the circuit court’s denial of Moustafa’s motion to suppress evidence, concluding that consideration of the four Dunn factors do not support a determination that Moustafa’s patio is within the curtilage of her home.
Law enforcement went to Moustafa’s address after receiving a reckless driving complaint. (¶2). The officers split up—one knocked on the front door of the apartment, one saw the car in the parking lot behind the building, and one approached the back patio to the apartment. (¶3). As the third officer approached the patio, he saw Moustafa exit the back door of the apartment and he entered the patio area to talk to her. (¶¶3-5).
When determining the extent of a home’s curtilage, a court should consider the following four factors: “the 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.” United States v. Dunn, 480 U.S. 294, 301 (1987). The COA concludes that the circuit court’s factual findings are not clearly erroneous and, applying the Dunn factors, agrees with the circuit court’s determination that the patio was not part of the curtilage of the home. (¶14).
As to the first factor, the patio is “immediately adjacent” to Moustafa’s residence; this weighs in favor of a conclusion that the patio is within the home’s curtilage. (¶15).
Despite Moustafa’s arguments that the gaps in the fencing surrounding her patio were filled with greenery or could be blocked by a parked vehicle, the COA concludes that the second factor weighs against the patio being within the home’s curtilage. (¶16-20). The patio area is not fully enclosed, there is “more open area than enclosed area,” it would not be possible to install a “traditional sized gate” on the side of the patio adjacent to the apartment building’s parking lot, and the patio is “completely observable” by individuals traveling through the parking lot. (¶16).
The third factor does not strongly weigh in favor of either side. Moustafa used the patio for private relaxation, but it was also “a main path” for entering the home (and the facts section notes that Moustafa had a mat outside the back door that said “Welcome”). (¶21).
The COA concludes that the fourth factor weighs in the state’s favor. “A person walking around Moustafa’s apartment building on the side closest to the street or traveling through the parking lot could easily view her patio, despite the fence panels partially surrounding it.
