Mitchell A. Del Bianco (Independent) has posted What is a House?: Searching for the Meaning and Scope of Curtilage at Common Law, 94 Fordham L. Rev. Online 138 (2026), on SSRN. Here is the abstract:
Curtilage is protected by the term “houses” under the Fourth Amendment. Open fields, however, are not, leading to a recent influx of search and seizure questions resulting in circuit splits. This trouble-causing distinction, the Supreme Court says in Hester v. United States and its progeny, “is as old as the common law.” From Hester to the present, the Court’s only citation for that historical assertion is a single passage of William Blackstone’s Commentaries. The distinction continues to have significant implications for all Americans, who are subject to the open fields doctrine which has notoriously come to vitiate Fourth Amendment protections for land and buildings that are “neither open, nor a field.” This Essay looks across the pond and beyond Blackstone, examining his own citations, historical legal treatises, dictionaries, and English case law to parse the bounds of curtilage at common law.
The historical record reveals that the purported distinction does not pass muster even as law office history. In the English burglary context, curtilage was ill-defined and provided little practical insight to where a burglary could occur beyond the walls of a house. In the property law context, curtilage was capacious and amorphous to the point that it could easily encompass “open fields.” Conversely, curtilage in both contexts was readily distinguished from houses. In light of these findings, this Essay argues that it is time to reevaluate Hester and the open fields doctrine.
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