Private Property Definition

[Bolt_Action]

I?ve studied it a bit, but most of what I found relates to 4th amendment search and seizure laws, warrants, etc.

I don?t think a reasonable person would say that the status of your garage as a private area that?s not open to the public suddenly changes when you open the door.

And I don’t see why it matters if you typically enter though your garage door. Let’s say for argument’s sake that most people enter their home through the front door, does that mean that the front door being open (and frequently used for entry) somehow makes it more likely that the interior of your home would be considered public space when the front door is open? What happens if you frequently talk to people at the entrance of your home’s front door, as people frequently do when people ring the door bell to speak with you? Does that mean that when your front door is open it turns your living room into a public area?

The reason this should be simple is that we’re talking about criminal law, not civil, and there’s a clear expectation that when the law is grey or unclear, the issue must be decided in favor of the defendant.

Nope, it's not that simple. It should be, but it ain't.

My read on your question, goes like this:

1) If your garage opens right on to a common alley, and you're in a dense area, and your garage is often open, and you normally enter your home through the garage door, and you frequently socialize with your neighbors while in your garage (a hypothetical that I designed to minimize the "Curtilage"), then "No" you cannot openly carry a firearm (in a prohibited area) or carry a concealed firearm.

2) If your garage is at the end of a privately-owned driveway, away from the pathway to your front door, and you normally keep the garage door closed (all in my hypothetical to maximize the "Curtilage") then you can openly carry, or concealed carry, in the garage with the door open.

The reason that there is no "Yes or No" answer to question is that the concept of "Curtilage" applies differently in the two examples.

I have one diagnostic question - How much case law concerning "Curtilage" have you studied before making this post?

Please don't make the mistake of trying to apply "Common Sense" to the application of law. I can guarantee that will get you in trouble.

[RickD427]

I?ve studied it a bit, but most of what I found relates to 4th amendment search and seizure laws, warrants, etc.

Most, but not all, of it does revolve around the Fourth Amendment. In this case, the application of the "Curtilage" concept is to whether your opened garage is "Public" or "Private" as opposed to be "Privately Owned."

I don?t think a reasonable person would say that the status of your garage as a private area that?s not open to the public suddenly changes when you open the door.

That's the point of debate here. If the circumstances are such that folks are invited into your garage, then it becomes "Public."

And I don?t see why it matters if you typically enter though your garage door. Let?s say for argument?s sake that most people enter their home through the front door, does that mean that the front door being open (and frequently used for entry) somehow makes it more likely that the interior of your home would be considered public space when the front door is open? What happens if you frequently talk to people at the entrance of your home?s front door, as people frequently do when people ring the door bell to speak with you? Does that mean that when your front door is open it turns your living room into a public area?

I often use the "Girl Scout" example to help explain "Curtilage." The idea is that any place the Girl Scout can go to sell her cookies is outside of the "Curtilage." The pathway to your front door is outside of the "Curtilage" with the expectation that the public has access to knock on your door, or to deliver items to your door. Than can change if you takes steps to prevent access, but it doesn't change unless you do. In many densely constructed housing areas, folks often enter their homes through the garage door, and that affects the application of "Curtilage."

The reason this should be simple is that we?re talking about criminal law, not civil, and there?s a clear expectation that when the law is grey or unclear, the issue must be decided in favor of the defendant.

You're describing the "Rule of Lenity" that generally holds that ambiguities in the law are resolved in favor of the defendant. That "tips the scale" in favor of a defendant, but doesn't assure the outcome. Additionally, it only applies to ambiguities in the law. Whether or not an area is protected curtilage, is an issue of fact to be determined by the trier of fact.

[mr goodguy]

Thanks librarian and rickD I’m always learning. Learned something again today you need to find a good lawyer that’s what it is.lol put a fence and make it look like it’s a private area and even put a no trespassing sign to be clear.

[Bolt_Action]

Ok, so looking at what you’re saying here, if I frequently enter my home through the front door, and I frequently have dinner parties of whatever in my living room, that makes my living room part of the publicly accessible part of my property?

I just don’t see the part of your argument that speaks about how you enter your home somehow contributes to the area *behind* that entryway becoming a public area. Unless you’re willing to say that the area behind your front door is more likely to be public just because you use your front door to enter your house. Or maybe I’m misunderstanding you.

Maybe the safest answer is that you should enter and leave your house through your chimney!

I also found this: https://fourthamendment.com/?p=2416

Most, but not all, of it does revolve around the Fourth Amendment. In this case, the application of the "Curtilage" concept is to whether your opened garage is "Public" or "Private" as opposed to be "Privately Owned."



That's the point of debate here. If the circumstances are such that folks are invited into your garage, then it becomes "Public."



I often use the "Girl Scout" example to help explain "Curtilage." The idea is that any place the Girl Scout can go to sell her cookies is outside of the "Curtilage." The pathway to your front door is outside of the "Curtilage" with the expectation that the public has access to knock on your door, or to deliver items to your door. Than can change if you takes steps to prevent access, but it doesn't change unless you do. In many densely constructed housing areas, folks often enter their homes through the garage door, and that affects the application of "Curtilage."



You're describing the "Rule of Lenity" that generally holds that ambiguities in the law are resolved in favor of the defendant. That "tips the scale" in favor of a defendant, but doesn't assure the outcome. Additionally, it only applies to ambiguities in the law. Whether or not an area is protected curtilage, is an issue of fact to be determined by the trier of fact.

[SVT-40]

What about your garage? Is that ?open to public access? if your garage door happens to be open? What about your living room, is that ?open to public access? if you have your doors open?

Now you are involving the "curtilage" of a residential building.

Generally if the mailman or someone similar can access something, that area is considered "open to public access".


So your question regarding a open garage or front door could be answered in a few different ways depending upon the situation and what the purpose is for someone to be at the open door.

Open doors would allow people to see, hear and possibly smell what was going on inside. That could be considered "in plain sight". That situation would allow law enforcement to act based upon what they saw, heard or smelled and enter the building to investigate.

[Scooooter7]

Once you hop the fence your now in private property? What if it?s only a 2 feet fence? But it?s gated with a small gate. I?m thinking anyone who jumps that fence is trespassing? No matter the height of the fence

BANG, nuff said. (sorry, not in CA)

[Chewy65]

A Twist to the Curtilage Hypothetical

The garage is attched to the house. The garage door faces the street. It is kept close at night, but is occasioanally left open some days. The front yard is not enclosed.

On a particular day contractors are invited into the house and garage so they can do some plumbing. A dispute arises and they are uninvited. At the time they are asked to leave, the garage door is up.

After they have vacated the premises, the homeowner, who has gong back into the house, opens the adjoining garage door. The contractor is then waling up the drive toward the garage. Homeowner pushes the button to close the rollup garage door as he yells at the contractor to stay out of the garage.

The question is if the garage is a public place for purposes of gun law as the contractor is coming up the drive. What if the contractor just enters the garage as homeowner opens the inner door and orders the contractor out of the garage?


This is not as easy a hypo as it seems. You need to not only weight if the garage is usually a public place, menang open to the public, but if it is than open to a contractor who has been asked to leave and has just left homeowner's premises, inclucing this front yard. What if contractor never left the sidewalk in front of the property?

[RickD427]

The garage is attched to the house. The garage door faces the street. It is kept close at night, but is occasioanally left open some days. The front yard is not enclosed.

On a particular day contractors are invited into the house and garage so they can do some plumbing. A dispute arises and they are uninvited. At the time they are asked to leave, the garage door is up.

After they have vacated the premises, the homeowner, who has gong back into the house, opens the adjoining garage door. The contractor is then waling up the drive toward the garage. Homeowner pushes the button to close the rollup garage door as he yells at the contractor to stay out of the garage.

The question is if the garage is a public place for purposes of gun law as the contractor is coming up the drive. What if the contractor just enters the garage as homeowner opens the inner door and orders the contractor out of the garage?


This is not as easy a hypo as it seems. You need to not only weight if the garage is usually a public place, menang open to the public, but if it is than open to a contractor who has been asked to leave and has just left homeowner's premises, inclucing this front yard. What if contractor never left the sidewalk in front of the property?

Chewy,

A very good hypothetical, and one that invites analysis from two different angles.

1) From the "Curtilage" angle - If there is a central theme that summarizes a lot of the case law concerning "Curtilage" it's the concept of "invitation." If the public is in some way "invited" upon property that is privately owned, then that area is outside of the "Curtilage." If I commonly keep my garage door open, and in a way that invites the public into my garage, then it's outside of the curtilage. That's a rare case, nearly all garages are gonna fall within the curtilage of a home.

2) As to the contractor angle - "Curtilage" is generally understood to be a general condition, and is not applied differently to different individuals. Under the conditions you describe, I would certainly think that the garage is within the curtilage of the home for all purposes.

[Librarian]

SCOTUS/Bruen discussion moved to its own thread, https://www.calguns.net/calgunforum/....php?t=1851538

[Dvrjon]

Back to the OP.

A sample of some references which might be helpful to consider (from Librarian's citation to Strider, above):

California courts have made clear that whether a particular location is a "public place" or "public area" depends on the totality of the facts of the individual case. [] "When construing statutes forbidding certain behavior in a `public place' or `public area,' California courts have routinely held that privately-owned property can constitute a public place." [] "The term `public place' generally means `a location readily accessible to all those who wish to go there. . . .' [Citation.] The key consideration is whether a member of the public can access the place `without challenge.'
[]
In People v. Jimenez[] the court concluded the unfenced residential driveway was a public area within the meaning of Health and Safety Code section 11353.6. [] It reasoned that "`public area'" was not synonymous with "`public property.'" [] Instead, for purposes of Health and Safety Code section 11353.6, "`public area'" encompassed not only publicly owned locations "such as streets, sidewalks and bus stops" but also "those portions of private property which are readily accessible to the public." []
[]
People v. Yarbrough, [] held that in a prosecution for violation of section 12031, it was not error to instruct the jury that the area in front of a home, including a private driveway, was a public place if it was reasonably accessible to the public without a barrier. [] There, the defendant was observed by police with a group of men gathered on a driveway, next to an abandoned vehicle, in front of an unoccupied, unfenced house with a "for sale" sign on the front lawn. [] The driveway was "unenclosed, visible to the public, exposed to general view, and had no other physical barrier to access."
[]
[]People v. Perez (1976)[] held that an apartment hallway was a public place for purposes of section 647, subdivision (f) because it was readily accessible to all who wished to go there. [] In other words, a `public place' within the meaning of [section 647, subdivision (f)] is a location readily accessible to all those who wish to go there rather than a place which the general public frequents." []
[]
Conversely (People v. Krohn), "a location guarded by a fence or locked door is not readily accessible to the public, and is not a public place." [] [I]n People v. White,[] the court concluded a fenced yard did not constitute a public place for purposes of the public intoxication statute, section 647, subdivision (f).
[]
[Strider findings:] That a fenced, secured area is visible to the public cannot, in our view, serve as the touchstone to establish it was a public place. The interior of a home may be easily visible through open curtains or large windows, but clearly it would not qualify as a public place within the meaning of the statute.
[]
The fact the gate was not locked at the time the deputies entered does not show the area was public. (See People v. White, [] [yard was not a public place despite the fact the gate was unlocked]; People v. Krohn, [] [fence and gates in apartment complex challenged public access, even though gate was periodically propped open].

It's worthwhile reading the entire Strider Appellate Ruling, and some of the cited cases.

Strider also provides this re: Curtilage:

The "curtilage is the area to which extends the intimate activity associated with the `sanctity of a man's home and the privacies of life,' [citation], and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private." ( Oliver v. United States (1984) 466 U.S. 170, 180 [ 80 L.Ed.2d 214, 104 S.Ct. 1735].)

IANAL
YMMV
Everything above is worth every penny you paid for it.

[Rickybillegas]

So is a shopping center considered a 'public area' under the law, or a 'public place' that is privately owned?

This question is related to the school zone firearms restriction which states that private property is exempt from the school zone. (I also know carry with a permit is ok).

This discussion on private property is going to get much more complicated when SB2 passes. For example, lets say we have a shopping center with 12 retail stores. One of the stores allows concealed carry and has a sign on the door stating such, the others don't. What will that do to the 'private property' parking open to the public that they all share? What a can of worms.

I suppose one might say the store owners and the property owner will fight among themselves to figure out if they can have a sign or not?

[Bolt_Action]

What if the entire neighborhood is private/gated, but the individual lots within are not? That is, would your your front yard, if not gated but contained behind a gated community, be considered a “public area”? In some private communities I’ve even seen homes that have backyards that are not entirely fenced in private communities, what happens then?

[RickD427]

So is a shopping center considered a 'public area' under the law, or a 'public place' that is privately owned?

This question is related to the school zone firearms restriction which states that private property is exempt from the school zone. (I also know carry with a permit is ok).

This discussion on private property is going to get much more complicated when SB2 passes. For example, lets say we have a shopping center with 12 retail stores. One of the stores allows concealed carry and has a sign on the door stating such, the others don't. What will that do to the 'private property' parking open to the public that they all share? What a can of worms.

I suppose one might say the store owners and the property owner will fight among themselves to figure out if they can have a sign or not?

What if the entire neighborhood is private/gated, but the individual lots within are not? That is, would your your front yard, if not gated but contained behind a gated community, be considered a ?public area?? In some private communities I?ve even seen homes that have backyards that are not entirely fenced in private communities, what happens then?

Good questions. Gotta wait for trial court rulings and then for a published appellate decision to really know the answers.

[mikeyr]

I have a 6ft fence all around, but my garage is 45ft from the house. Unfortunately, there are 2 story apartments next to my back fence, those 2 story windows look down to my fenced backyard. I make a point of hiding my firearms when I walk from the house to the garage to clean them for 2 reasons, 1. they don't need to know I have guns. 2. I am not clear on this private property mess and don't want them to call the cops.

[Librarian]

So is a shopping center considered a 'public area' under the law, or a 'public place' that is privately owned?

This question is related to the school zone firearms restriction which states that private property is exempt from the school zone. (I also know carry with a permit is ok).

This discussion on private property is going to get much more complicated when SB2 passes. For example, lets say we have a shopping center with 12 retail stores. One of the stores allows concealed carry and has a sign on the door stating such, the others don't. What will that do to the 'private property' parking open to the public that they all share? What a can of worms.

I suppose one might say the store owners and the property owner will fight among themselves to figure out if they can have a sign or not?

Always a can of worms. For example, my former house in Concord was within 1000 feet of my children's school; the 'private property' exemption clearly covered my guns inside my house, but to legally take my guns to my car in my driveway, they needed to be cased.

As to a shopping center, the lawsuit Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980) should be illustrative - public access was affirmed.

But that's just the way to guess; as always, the exact facts of the situation control, and without the full set of facts and arguments, we cannot know for sure.