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The Court in this case applied the Dunn factors, and in doing so, acknowledged that the driveway’ s proximity to Moses’ s home weighed slightly in his favor because the car was parked on private residential property. However, the court found that the three remaining Dunn factors tipped heavily in favor of the government.
Specifically, the court heavily considered that Officer Hess never approached Moses’ s house itself and stayed the significant distance of between 30 to 40 feet from the residence. Further, the portion of the driveway where the car was parked and where Officer Hess made contact was not within an enclosure or barrier that grouped it with the house, such as a fence or wall. Additionally, there was no indication that the area was used for anything uniquely private or home-centered, as opposed to being a space for vehicles to enter, exit, and park.
Moreover, the court found that Moses and his family had not taken any significant steps to shield the driveway from public view or access. Although Moses’ s family testified to the use of landscaping to create privacy, the court disagreed. Instead, they found that photographic evidence did not show any fencing, shrubbery, gates, or signs that marked the area as off-limits to visitors or signaled an expectation of privacy. The driveway was open and visible to the street, a common feature of many homes that allows for public approach, including by law enforcement officers engaging with residents for legitimate reasons.
Since only proximity favored Moses and the remaining Dunn factors did not, the court therefore concluded that Officer Hess did not enter protected curtilage. Rather, the driveway he walked up to approach Moses was not protected by the Fourth Amendment. Therefore, the subsequent search was justified since it was prompted by the visible, olfactory, and admitted presence of marijuana in a state where recreational marijuana use remained illegal in 2020. Accordingly, the evidence was not subject to suppression. Thus, the Third Circuit affirmed the conviction.
Key Takeaways
Moses establishes that a driveway does not automatically receive Fourth Amendment protections simply because it is on residential property. The area must meet each of the Dunn factors to be deemed as curtilage. Therefore, police officers may lawfully walk partway up an unenclosed, open driveway to make contact with residents or investigate reasonable suspicions stemming from observed traffic violations or possible criminal activity. In practical terms, law enforcement officers should always pay careful attention to how a space is laid out, whether it is physically separated from public areas, how the resident is using the space, and whether any privacy measures are apparent. Make sure to keep detailed records and use body-worn cameras to document the scene. Every case will ultimately depend on these facts and their careful analysis under established legal standards.
United States v. Moses, 142 F. 4th 126( 3d Cir. 2025)
Attorney Daigle focuses on evaluating and providing policy and training on areas of increased liability for departments across the country. Attorney Daigle’ s keynote focuses on understanding current trends in legal standards, operational standards, and community concern. More importantly, the intersection between these topics to provide departments evaluation and recommendations to move forward.
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