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Name: People v. Lieng
Case #: A125374
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 12/14/2010

Fourth Amendment protection extends to the curtilage, the land immediately surrounding and associated with the residence. At the Penal Code section 1538.5 hearing, Sergeant Smith testified that he used “night vision” goggles to observe appellants’ rural property from a driveway running in front of appellants’ residence and other properties because he suspected the property was being used to grow marijuana. From the information gleaned, he then sought and obtained a search warrant. The trial court rejected appellants’ argument that the officer’s surveillance violated their Fourth Amendment rights because the surveillance constituted an unauthorized search of the curtilage of the property. The area immediately surrounding a dwelling house, or the curtilage, may be entitled to the same constitutional protection as the house itself. The extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. These factors may include: (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 view by people passing by. Here, the officer made his observations solely from the driveway. He was not so close to the residence as to invade the curtilage. There was no evidence that there was any closed fence or other enclosure around the property that included the claimed curtilage. The driveway from which the observations were made was not so intimately tied to the house as to warrant constitutional protection. And there was no evidence of no trespassing signs or other features designed to obstruct passage on the driveway. Thus, the trial court’s finding that the driveway was outside the curtilage of the house was reasonable. The court also rejected appellant’s claim that use of night vision goggles violated the Fourth Amendment. Because the goggles merely amplified ambient light, they were viewed as an instrument similar to a flashlight or binoculars, as compared to a thermal-imaging device, and did not constitute a search in violation of the Fourth Amendment.