Oral Argument Questions

What is the standard of review for curtilage?

De Novo

What is the standard of review for MTS evidence?

Reviewed independently

What case law indicates we should considering foliage and natural topography?

D-The ninth circuit has recognized that natural topography can function as shielding.

R- Natural features including the property’s remote location and foliage may render the shielding factor neutral. Davis; Dobbs.

Why should agent Moriah’s entry into the pergola matter if Agent Winfield could see items inside the pergola while standing outside?

D- Agent Moriah’s warrantless entry matters because entering the pergola is a Fourth Amendment intrusion, even if some items were visible from outside.

R- Curtilage recieves the same protections as the home and officers may not enter it without a warrant.

E- In United States v. Perea-Rey, the court held that officers could not rely on observation from outside to justify entering a protected area

A- Here, the area surrounding the pergola—had children’s toys and lawn equipment— which indicates that the officers were within the home’s curtilage when Agent Winfield made her observations. And even if some items were visible, Agent Moriah’s entry into the pergola was an additional, independent intrusion into protected curtilage, just like the unlawful entry in Perea-Rey.

Agent Moriah's intrusion seems inconsequential here since Agent winfield would have seen inside the pergola any way. How would u address that

D- Agent Moriah’s intrusion is not inconsequential because the Fourth Amendment draws a line at physical entry into curtilage, regardless of whether some items were visible from outside.

R- In United States v. Perea-Rey, the fact that officers could see into an area does not justify entering it.

A- Even if Agent Winfield might have seen some items from outside the pergola, that does not make Agent Moriah’s entry irrelevant. First, the entry itself is a constitutional violation. Second, the entry likely provided a additional details that would not have been available from outside. Third, if the officers were already standing within the curtilage then even those initial observations were not from a lawful vantage point. So the government cannot rely on “they would have seen it anyway” to excuse a warrantless intrusion.

Wouldn’t the agents have objective evidence that the area was mixed use based on their observation from inside the pergola?

D- No because even if the items were visible, the agents’ observations still cannot establish mixed use if they were made from within the curtilage.

R-

A- Here, even assuming the items inside the pergola were visible from outside, the agents were not standing in a lawful vantage point when they made those observations. The children’s toys and lawn equipment surrounding the pergola indicate that the area functioned as part of the home’s backyard, putting the agents within the curtilage. Because their presence in that space was a Fourth Amendment violation, any observations they made cannot be used.

Has the Ninth Circut ever adopted the position of the Dunn dissent on mixed use? Why should this court?

D- The Ninth Circut has not adopted the Dunn dissent’s rule on mixed use, but this court should becasue the ninth circut has yet to adress mixed use areas.

R- When a space has mixed use, the key question is whether domestic activity is a meaningful part of that use.

A- A rule discounting mixed use would strip protection from spaces that function as part of the home, undermining the purpose of the Fourth Amendment

How many justices signed onto the Dunn dissent?

2:

No one forced the Morris curtains on the pergola, correct? They could have just built something with walls.

So, why is it unfair for this court to decide, look, a property owner has free reign over the structures they construct on their property, but if they choose an open-air structure, then they bear the Fourth Amendment consequences for doing so?

D- No, the Fourth Amendment does not reward or punish people based on how they choose to build or design their property.

R- The shielding factor does not require absolute concealment, nor does it turn on whether a structure has walls, curtains, or doors. (Perea-Rey) Instead, the question is whether the area is exposed in a way that undermines a reasonable expectation of privacy.

A- Here, even if the pergola was partially open, that does not mean it lacked shielding in a meaningful way. A homeowner’s decision to use an open-air structure reflects ordinary design choices, especially in outdoor settings. Imposing a rule that equates “no walls” with “no protection” would improperly force individuals into building fully enclosed structures just to retain constitutional rights. That’s not what the Fourth Amendment requires.

In Pereira Ray, one of the things that the court seemed to emphasize was that the enclosures made it, so dark inside the carport that it was harder to see inside. How should we consider the fact that Mr. Morris actually illuminated the interior of the pergola?

D- The lighting does not weigh against Mr. Morris because lighting alone does not eliminate privacy or expose the space in a way that defeats a reasonable expectation of privacy.

R- The shielding factor looks at whether a space is exposed to public view from a lawful vantage point. In United States v. Perera-Raya, the court considered illumination as part of whether officers could see into the space. But illumination is just one variable in visibility. It does not automatically equal exposure. A space can be lit and still remain meaningfully shielded depending on it’s visibility from public vantage points, its structural enclosures.

A- Here, the illumination of the pergola does not show that the area was open to the public or lacking privacy—it only shows that it was used. If anything, lighting can also indicate ongoing domestic use, not abandonment of privacy. If the Court treated lighting as a dispositive factor, it would create a perverse rule: the more a homeowner uses and occupies a space, the less protection it receives.

How should we then consider the fact that these curtains could blow open in the wind?

D- The possibility that curtains could blow open in the wind does not meaningfully undermine shielding, especially on a remote property.

R- The shielding factor can favor curtilage even if the area is not completely shielded from view. See, Perea-Rey,

A- First, like the walls in Perea-Rey, which did not completely shield visibility, the pergola’s curtains stayed closed but moved in the wind. R. 56. Second, curtains—even if not tied down—are still an affirmative step to limit visibility. Third, the likelihood of someone observing the pergola’s interior is reduced by the property’s remote location and natural barriers.

Is it really so unfair to expect of a resident that if they want privacy in an area they should take the steps available to them. So the Morrises could choose not to tie down these curtains, that's fair, that's their choice, but then the Fourth Amendment analysis also can take into account the fact that they evidently chose not to.

D- No—it is not fair to treat a homeowner’s failure to take every possible step to shield as a factor that strips away Fourth Amendment protection.

R- Courts look at shielding by considering whether a space is actually exposed to public view from a lawful vantage point, not whether a person took the best possible steps to shield.

A- Here, the Morrises used curtains—an affirmative step to limit visibility. The fact that those curtains were not tied down does not mean they abandoned privacy; it means they made a reasonable, ordinary choice about how to structure their space. The key question is whether the space was exposed to public view—not whether the Morrises used the best method to shield the area.

What should the rule on mixed-use structures be if we have the opportunity to clarify that?

D- The rule should be that courts look to whether domestic use is a meaningful and ongoing part of the mixed-use structure’s function. If it is, the structure should be treated as part of the home for Fourth Amendment purposes; if domestic use is incidental or insufficient, it should not.

R- The Fourth Amendment protects reasonable expectations of privacy tied to the home.

A- A rigid rule that excludes any space with non-domestic use would go too far and strip protection from ordinary parts of everyday life—like garages, sheds, or outdoor living areas—just because they are not used exclusively for residential purposes.

At the same time, a rule that automatically protects any space with some domestic use would go too far in the other direction. That would risk shielding clearly commercial or illicit operations that happen to have minimal residential overlap.

A fair rule asks:

Is domestic activity real, ongoing, and integrated into the space?

Or is it incidental to a primarily non-domestic function?

Why should we use the dunn factors to guide this analysis when more recent Supreme Court case law uses a more truncated approach to evaluating the curtilage?

D- The court should use the Dunn factors to guide this analysis becasue this case is not dealing with a classic example of curtilage.

R- Classic examples of curtilage include front porches, side gardens, and areas outside front windows. Jardines

How should the, pergola's historical use as an event space influence our evaluation of this factor?

D- The pergola's prior use as an event space is not entirely relevant and should carry little. What is most important is how the Morrises were currently using the space.

R- The use factor looks to current indicators of how a space functions, because the Fourth Amendment protects present expectations of privacy not abandoned uses.

A- Here, the pergola had not been used as an event space for over four years. That gap is significant. Instead, what is most important is how the Morrises were currently using the pergola. The evidence shows domestic and mixed use, but not use as an event space.

Would this open a fourth amendment loophole to people who conduct illegal activity so long as they conduct domestic activity?

D- No this would not create a fourth amendment loop hole

A- Your point is correct that people who want to conceal purely criminal activity typically already avoid doing so in clearly domestic or visible spaces. That reinforces the rule rather than undermining it. The Constitution protects real, observable expectations of privacy—it does not invite courts to speculate that any protected space might be misused

What definition of search should we be working with here? Source?

Fourt Amendment searches are warrantless trespasses by the government into the home or its curtilage (Perea-Rey 1885)

So where's the exact boundary between curtilage and non-curtilage on this property?

D- There is no single “exact line” you can draw on this property—the boundary of curtilage is determined by function, not geography

R- Courts determine curtilage by looking at whether an area is intimately connected to the home, using factors like proximity, use, enclosure, and efforts to shield the area from observation. The question is not “where does the property end,” but “where does the home life end.”

A- On this property, the boundary would be defined by that functional connection:

• Areas like the home itself, the pergola, the oak tree area, and areas used for family activities are part of the curtilage

• Areas that are merely open land and are not used in connection with the home fall outside the curtilage.

How did evidence of use in this case compare to evidence of use in Garcia?

D- The evidence of use here shows a mixed-use space, which is different from United States v. Garcia, where the area was used solely for marijuana cultivation

R- The use factor disfavors curtilage in areas used soley for marijuana cultivation with no evidence of domestic use. (Garcia; Charier)

A- Here, the evidence is different. While the pergola was used in part for marijuana cultivation, it was also used for domestic activities.

A space that is purely non-domestic, like in Garcia, does not implicate the “intimate actives of home life” the Fourth Amendment protects.

So unlike Garcia, where the absence of any domestic use led the court to reject curtilage, the mixed-use nature of this pergola supports treating it as part of the home under the use factor.

How does the storage of items in Perea rey compare to this case?

D- The storage of items here is similar to United States v. Perea-Rey because both spaces contained valuable items and tools associated with hobbies, which supports a connection to the home

R- In Perea-Rey, the court looked at the storage of valuable items—trucks, tools, and equipment—as evidence that the space functioned as a protected area

A- Here, the Morrises stored a kiln, pottery wheel, pottery tools, and gardening materials alongside items like books and soda cans. That combination shows not only the storage of valuable equipment but also signs of everyday domestic use. The presence of both types of items strengthens the argument that the pergola functioned as a mixed-use space integrated into the home.

What is the Morrison's backyard?

The Morrises’ backyard is the fenced-in area surrounding their home, the oak tree area, the driveway area where children play, the area around surrounding the pergola and the pergola itself.

Here, the Morrises’ backyard includes multiple spaces:

• The fenced-in yard where the dog is let out

• The oak tree and tire swing and picnic table area used for gathering and eating

• The part of the driveway area used by children for playing

• The area surrounding the pergola, where toys and lawn care items are stored

• The pergola itself, which is used for both domestic and other activities

IN combination, couldn't the pink light and tip allow the agents to deduce that marijuana was growing there?

D- Yes, in combination the pink light and the tip could allow officers to suspect marijuana cultivation—but suspicion is not justification for treating the space as non-curtilage

R- Tips and observed indicators—like a pink grow light—can contribute to probable cause or reasonable suspicion, but they do not eliminate privacy protections.

A- A tip combined with a LED light may suggest illegal conduct, but it does not change the physical and functional characteristics of the space—those remain the key factors in determining whether it is within the curtilage.

If courts allowed suspicion alone to control, it would create a dangerous rule: any outdoor space with non domestic features could lose protection whenever officers infer illicit activity. T

Does it matter if the kids played outside the pergola, if the area under review is the inside of the pergola?

D- The fact that children play outside the pergola helps show the overall area functions part of the home’s domestic life, but the focus remains on how the interior of the pergola is used

R- The use factor looks at the specific area being searched and whether it functions as part of the home. Courts may also consider the broader context of the surrounding areas

A- So, evidence that children play outside the pergola does not contol the analysis because the key question is whether the inside of the pergola is curtilage. If the pergola contains domestic items, is used for intimate activity then it is part of the same domestic area of the home. The outside activity helps confirm that , but it is not required to prove curtilage inside the pergola.

What's your strongest case overall, in terms of the overall balance of factors, Council?

D- The strongest case supporting the balancing of factors is Davis.

A- Because the Morrises shielded the pergola with the natural landscape, curtains, and a solid roof, taking further steps that the defendnats in Davis did, sheilding favors curtilage. The pergola was actively used for domestic activity, unlike the workshop in Davis. And the tree line enclosed the home and pergola.

If we decide that this use factor actually favors the government, are we obligated to affirm the lower court's denial of this motion to suppress?

D- No, because the standard of review is de novo, which means that you give no deference to the trial court’s curtilage analysis

R- Under de novo review, the appellate court re-examines the legal question of whether a space qualifies as curtilage and does not consider the lower court’s factual findings.

A- So even if one factor (like use) weighs against Mr. Morris, the court must still consider the totality of the circumstances. The ultimate question is whether the pergola, in light of all factors, is part of the curtilage. A single factor does not control the outcome.

Why is it unfair to have the Morrises bear the consequences of their choice to install an interior fence?

A- It is unfair to penalize the Morrises for installing an interior fence because they live on a rural property.

R- The dunn dissent suggests that it is unfair to expect rural property owners to install fences around there entire property. Because it would be very costly to fence in 80 acres of land and ones right to protection from unreasonable searches and seizers should not depend on their wealth.

A- The Morrises installed the fence to keep their dog around the house and from wandering in the woods, so it would be impracticable to install a fence aroudn the entire property to contain the dog.

When was Davis decided?

2008

Were Jardines and Collins decided before or after Davis?

After. (Jardines 2013) (Collins 2018)

Can you compare this case to, United States v. Pereira Ray on the shielding factor?

D- The shielding is stronger here because officers could only see inside the pergola by standing a foot outside the pergola in the curtilage, whereas in Perera-Ray the area was partially visible from a lawful vantage point

R- The shielding factor can favor curtilage even if the area is not completely shielded from view

A- Here, thet he agents could only see inside the pergola by positioning themselves about one foot away beyond normal, lawful observation. That indicates the pergola was not exposed to public view. Instead, it was shielded from ordinary vantage points, which supports a reasonable expectation of privacy.

The fact that the curtains moved in the wind does not eliminate shielding. As long as the space is not openly visible from lawful public positions, the shielding factor can still favor curtilage.

Walk me through the facts of this case?