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the public, even in his own house or office, is not a subject of Fourth Amendment protection.’” Id.
(quoting Katz v. United States, 389 U.S. 347, 351 (1967)).1 The Court reasoned that Santana “was
not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if
she had been standing completely outside her house.” Id. Thus, the Court reasoned that arresting
her in her doorway did not require a warrant. Id.
The Supreme Court then further addressed “whether her act of retreating into her house
could thwart an otherwise proper arrest.” Id. The Court concluded that the case “involve[ed] a true
‘hot pursuit’” and that “[t]he fact that the pursuit here ended almost as soon as it began did not
render it any the less a ‘hot pursuit’ sufficient to justify the warrantless entry into Santana’s house.”
1 We note that United States v. Santana, 427 U.S. 38 (1976), was decided four years
before Payton v. New York, 445 U.S. 573 (1980). Certain potential lines of reasoning that might
flow from the Court’s reasoning in Santana and suggest expansive warrantless arrest powers
when law enforcement officers interact with a suspect in the doorway of the suspect’s home are
complicated by the Court’s clear ruling in Payton that “[a]bsent exigent circumstances [the]
threshold [of a home] may not reasonably be crossed without a warrant.” 445 U.S. at 590.
We further note that this Court has previously implicitly addressed the apparent tension
between the Supreme Court’s reasoning in Santana and the well settled rule that under the
Fourth Amendment, the curtilage of a home is subject to the same protections as the home itself.
Jefferson v. Commonwealth, 27 Va. App. 1, 15-16 (1998). “[W]hether a particular place is
within the curtilage of the home is determined on a case-by-case basis.” Id. at 16. “The extent
of the curtilage is determined by factors that bear upon whether an individual reasonably may
expect that the area in question should be treated as the home itself.” Id. (quoting United States
v. Dunn, 480 U.S. 294, 300 (1987)). In Jefferson, this Court distinguished the facts of the case
that involved an arrest beginning in the private backyard of a home from those in Santana, where
“[t]he doorway in question was positioned so that it ‘exposed [the defendant] to public view,
speech, hearing and touch as if she had been standing completely outside her house.’” Id. at 18
(second alteration in original) (quoting Santana, 427 U.S. at 42).
In light of Payton, it seems that Santana stands for the proposition that one standing
outside the threshold of their doorway, though in their curtilage, may not enjoy all the Fourth
Amendment protections usually enjoyed in their home and curtilage if they are “positioned so
that [they are] ‘exposed . . . to public view, speech, hearing and touch as if [they] had been
standing completely outside [their] house,” Jefferson, 27 Va. App. at 18 (quoting Santana, 47
U.S. at 42), and they are so exposed that they may not “reasonably . . . expect that the area in
question should be treated as the home itself,” id. at 16 (quoting Dunn, 480 U.S. at 300).
However, as explained below, the evidence shows that Berry was inside his home, and thus
under Payton enjoyed all the protections of the Fourth Amendment. Jump to an indexed page (18 of 18)