Do Multi-Unit Dwellings Have Curtilage?

The curtilage of a home is the area "directly and intimately connected with the [home] and in proximity" to it. State v. Courtright, 60 N.C. App. 247 (1983). In other words, it is the area that "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life." United States v. Dunn, 480 U.S. 294 (1987) (internal quotation marks and citations omitted). Classic example of curtilage include attached garages, back patios, and fenced-in back yards. Because the occupants of a home have a reasonable expectation of privacy in the curtilage, it is protected by the Fourth Amendment, meaning that it can't be searched by a law-enforcement officer without a warrant unless one of the exceptions to the warrant requirement applies. See generally Robert L. Farb, Arrest, Search and Investigation in North Carolina 73 (3d ed. 2003); Dunn, supra (stating that the curtilage is "treated as the home itself" for Fourth Amendment purposes). In Dunn, the Court stated that four factors must be considered when determining whether an area is part of the curtilage of a home: "the proximity of the area . . . 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." There are plenty of interesting cases weighing and balancing those four factors in connection with single-family houses, but one of my favorite Fourth Amendment puzzlers is whether and how the concept of curtilage applies to multi-unit dwellings. Take a typical side-by-side duplex, for example. Suppose that there's a fenced in backyard shared by the occupants of both sides. One could argue that because the area is shared, neither side's occupants can reasonably claim that it is private. On the other hand, one could argue that the mere fact that a handful of others have access to the area isn't fatal to the expectation of privacy, any more than the fact that a meter-reader may access the yard of a single-family home destroys the expectation of privacy that the home's residents have in the yard. What have the courts said? Here's a sampling:

• In Reeves v. Churchich, 484 F.3d 1244 (10th Cir. 2007), the court held that the front yard of a duplex was not within the curtilage, because it was open to the street and because there was no evidence that the occupants of one side "could exclude others from the yard and it appears they shared the yard" with the occupants of the other side.
• In United States v. King, 227 F.3d 732 (6th Cir. 2000), the court held that the all the tenants of a duplex had a reasonable expectation of privacy in a shared basement, though the basement was not technically part of the curtilage because it was a part of the duplex itself.
• In United States v. Acosta, 965 F.2d 1248 (3rd Cir. 1992), the court argued that the Dunn factors may need to be modified or weighted differently in urban settings, then held that the back yard of an apartment building was not the tenants' curtilage on the facts of the case.
• In United States v. Arboleda, 633 F.2d 985 (2d Cir. 1980), a case involving an item seized from a ledge outside a second-story apartment, the court said that "it is doubtful that the curtilage concept has much applicability to multifamily dwellings such as the one involved here."
• In United States v. Stanley, 597 F.2d 866 (4th Cir. 1979), the court described this issue as "thorny" and held that a common parking area in a mobile home park was not within the curtilage of any resident's home.
• In United States v. Cruz Pagan, 537 F.2d 554 (1st Cir. 1976), the court held that the parking garage of an apartment building was not the tenants' curtilage, and stated that "[i]n a modern urban multifamily apartment house, the area within the ‘curtilage’ is necessarily much more limited than in the case of a rural dwelling subject to one owner's control."
• In People v. Shaw, 97 Cal.App.4th 833 (Cal. Ct. App. 4th Dist. 2002), the court stated that "what might be one person's curtilage, in the context of a private single occupancy residence, becomes less subject to privacy expectations in the context of the grounds of a multi-unit apartment complex," and held that the fenced-in back yard of a four-plex was not subject to an expectation of privacy.

I'm not aware of a North Carolina appellate case on point. Let me know if you are. From the above cases and others, I conclude as follows: (1) the law's not settled in this area; (2) the larger the number of units in a dwelling, the less likely that common areas are subject to a reasonable expectation of privacy; and (3) layout matters, e.g., if a duplex has a divided back yard such that each side has its own space, the occupants are more likely to have a reasonable expectation of privacy than in an undivided yard. In particular cases, other factors also may be relevant. For example, if both sides of a duplex are occupied by members of the same extended family, the back yard of duplex may seem more like a private area than if the the occupants of the two sides are unrelated. Anyone have additional or different thoughts?