dissenting:
I agree with the majority that the right of the Coffins to recover turns on whether the garage constituted part of their home. I dissent because I conclude that the Coffins’ garage was a part of their home and that the warrantless entry into the home violated clearly established Fourth Amendment rights such that qualified immunity does not shield the Defendants.
The Fourth Amendment draws a firm line of protection around “the unambiguous physical dimensions of an individual’s home.” Payton v. New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Pursuant to Supreme Court precedent, an attached garage sits within those protected dimensions. In Kyllo v. United States, the Supreme Court held that a thermal-imaging scan that revealed heat emanating from a home’s attached garage violated the Fourth Amendment’s ban on warrantless searches of the home. 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). The Court did not afford less protection to the attached garage than it gave to other areas of the home. In fact, the heat evidence at issue was obtained from the scan of the attached garage. Id. at 30, 121 S.Ct. 2038. The high Court’s framing of the issue shows that it treated the garage as part of the home: “This case presents the question whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a ‘search’ within the meaning of the Fourth Amendment.” Id. at 29, 121 S.Ct. 2038. The “relative amounts of heat” detected were of the attached garage compared to “the rest of the home.” Id. at 30, 121 S.Ct. 2038.
Kyllo was not the first case in which the Supreme Court indicated that an attached or adjacent garage is part of the home. The Court held in Taylor v. United States, that a warrantless search of an “adjacent” garage violated the Fourth Amendment. 286 U.S. 1, 5-6, 52 S.Ct. 466, 76 L.Ed. 951 (1932). In so holding, the Court stated that “[t]he garage — a small metal building — is on the corner of a city lot and adjacent to the dwelling in which petitioner Taylor resided. The two houses are parts of the same premises.” Id. at 5, 52 S.Ct. 466 (emphasis added). The Supreme Court also indicated that a garage is part of the home in Chimel v. California, when the Court stated that “the officers then looked through the entire three-bedroom house, including the attic, the garage, and a small workshop.” 395 U.S. 752, 754, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The Court held that the search of the home incident to arrest beyond the petitioner’s grab area violated the Fourth Amendment, and reversed the petitioner’s conviction. Id. at 768, 89 S.Ct. 2034. Pursuant to Kyllo, Taylor, and Chimel, it is clearly established that an attached garage is part of the home.
The former Fifth Circuit has held the same. In United States v. Sokolow, the former Fifth Circuit held that a police officer’s warrantless search of the defendant’s garage to record the serial numbers of air-conditioning units the officer suspected were stolen violated the Fourth Amendment. 450 F.2d 324, 325 (5th Cir. 1971).1 Applying the same legal analysis *1215as it would had the officer entered any other part of the defendant’s home without a warrant, the court held that there were no exigent circumstances to justify the warrantless entry of the garage because the air-conditioning units could not have been disposed of easily and other officers were maintaining surveillance on the premises. Id.; see also Kauz v. United States, 95 F.2d 473, 474 (5th Cir.1938) (holding that a warrantless search of a garage that was part of the same building as the defendant’s living quarters violated the Fourth Amendment).
In the present case, it is undisputed that the Coffins’ garage is attached and is incorporated into the contiguous exterior masonry walls of the home. The Coffins’ garage is “part[ ] of the same premises” as the rest of their home. Taylor, 286 U.S. at 5, 52 S.Ct. 466. It is therefore clearly established that the Coffins’ attached garage is part of their home for Fourth Amendment purposes. Additionally, it is undisputed that there were no exigent circumstances.
In footnote eleven, the majority offers four reasons for its position that Kyllo does not clearly establish that an attached garage is part of a home. The majority first notes that no party in Kyllo challenged whether the garage should be treated like “the rest of the home.” If such a failure to challenge by Kyllo counsel is assigned any import at all, it would be to strengthen the conclusion that treating the garage like “the rest of the home” is clearly established. Moreover, a right becomes clearly established based on what the Supreme Court writes, not what the parties argue. Furthermore, the Kyllo Court and litigants were not operating on a blank slate. The Supreme Court’s holding in Taylor that a warrantless search of an adjacent garage violated the Fourth Amendment had been settled law for nearly seventy years. Id.
Second, the majority finds Kyllo less than clear because the word “garage” is only mentioned once in the fact section of the opinion to establish the location of the relative hot spots. It is true that throughout the remainder of the opinion the high court uses the terms “home” and “house” to describe the hot spots. Such usage strengthens, rather than weakens, the conclusion that it is clearly established that an attached garage is part of the home.
Third, the majority posits that there were two hot spots at issue and that one may not have been associated with the garage. However, the only hot spots identified in Kyllo were the roof over the garage and “the side wall of [the] home,” which was one of the garage walls.2
Finally, the majority states that the result in Kyllo may have been different if the garage door had been open. Payton squarely forecloses that reasoning. In Payton, the police saw the defendant through an open door, walked through the open door, and arrested him. Payton, 445 U.S. at 578, 100 S.Ct. 1371 (“When his young son opened the door, [the police] could see [the defendant] sitting in bed covered by a sheet. They entered the house and placed him under arrest.”). The police in Payton did not violate the defendant’s constitutional rights when they looked through the open door and saw the defendant; they violated the defendant’s *1216constitutional rights when they walked through the open door and arrested him. Id. at 589-90, 100 S.Ct. 1371. The deputies in the present case did the same when they chose not to follow Ms. Coffin’s request to “get off [her] property” and, instead, entered the garage as Ms. Coffin was closing the door and arrested her.
Granted, Payton did not involve a garage, but Kyllo did. And because Kyllo held that a garage is part of the home, Payton applies. Because Payton applies, the fact that the door was open is irrelevant. People enjoy reasonable expectations of privacy in their homes even if they do not shield the inside of their homes from public view. Absent exigent circumstances, Lutz and Brandau could not enter the Coffins’ attached garage and arrest them after spotting them through an open door; they had to get a warrant. See id. Moreover, the garage door in the present case was not simply open when the officers entered. Prior to their entry, Ms. Coffin had demanded that they leave. She shut and locked the front door and was in the process of shutting the garage door when Officer Brandau prevented it from closing by tripping the electronic beam. As Brandau entered the garage, Ms. Coffin repeated her demand that the officers “get off [her] property.” Under Payton, it is clear that a homeowner whose door is open is entitled to protection. It is no less, and arguably more, clear that a homeowner actively trying to close a door to prevent the police from a warrantless entry is entitled to protection.
Because the Supreme Court has established that an attached garage is a part of the home, it is not necessary to resort to the factors set forth in United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), which guide in distinguishing between an open field and curtilage. Dunn involved an actual field. The issue in Dunn was whether a field surrounding the respondent’s barn was an open field or part of the home’s curtilage. Id. at 303-04, 107 S.Ct. 1134. The Court assumed without deciding that the “barn enjoyed Fourth Amendment protection and could not be entered and its contents seized without a warrant.” Id. at 303, 107 S.Ct. 1134. The Court ultimately held that the field at issue was an open field, which the majority defined as “any unoccupied or undeveloped area outside of the curtilage.” Id. at 304, 107 S.Ct. 1134 (internal quotation marks omitted).
The Dunn opinion does provide some indirect support for the conclusion that an attached garage is part of the home. As explained in Dunn:
In defining the terms “mansion or dwelling house,” Blackstone wrote that “no distant barn, warehouse, or the like are under the same privileges, nor looked upon as a man’s castle of defence.... ” 4 W. Blackstone, Commentaries *225. Blackstone observed, however, that “if the barn, stable, or warehouse, be parcel of the mansion-house, and within the same common fence, though not under the same roof or contiguous, a burglary may be committed therein; for the capital house protects and privileges all its branches and appurtenances, if within the curtilage or homestall.”
Id. at 300 n. 3, 107 S.Ct. 1134 (emphasis added). Blackstone was writing about a home’s curtilage as it pertained to the law of burglary, from which Fourth Amendment curtilage law originated. See id. at 300, 107 S.Ct. 1134 (“The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself.”).
Thus, under the common law, a “dwelling” consisted of the home and all areas contiguous with it or under the same roof, *1217and a dwelling’s curtilage included the area within the same enclosure as the dwelling. See id.; Martinez v. State, 700 So.2d 142, 143 (Fla.Dist.Ct.App.1997). Florida still adheres to the common law rule in the burglary context: an attached garage is always considered a dwelling, but a detached garage is only considered a dwelling if other factors are present. See McAllister v. State, 859 So.2d 611, 612 (Fla.Dist.Ct.App.2003) (“[Ujnless [the] garage was either attached to the house or enclosed substantially along with the house, appellant is guilty of burglary of a structure, not burglary of a dwelling.”); Martinez, 700 So.2d at 144 (reversing a conviction for burglary of a dwelling because the garage was not attached to the home).
Modern curtilage law has evolved “to include land and structures near enough to a dwelling to deserve the dwelling’s protection,” even if the area is not enclosed by a fence. Martinez, 700 So.2d at 143. Because American courts no longer required an enclosure for an area to lie within a home’s curtilage, they had to undertake more detailed factual inquiries to make that determination. To that end, the Supreme Court set forth four factors in Dunn to aid courts in determining whether an area should enjoy the same protection “as the home itself.” 480 U.S. at 300-01, 107 S.Ct. 1134. The Dunn Court cautioned that the factors it identified “are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration — whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. at 301, 107 S.Ct. 1134. Resort to those factors is unnecessary when dealing with a garage attached to the home, as areas “under the same roof or contiguous” with the home have always enjoyed protection. See id. at 300 n. 3, 107 S.Ct. 1134 (quoting William Blackstone, 4 Commentaries *225).
As the majority notes, the Sixth Circuit stated that the “law defining curtilage remains unclear” in Daughenbaugh v. City of Tiffin, 150 F.3d 594, 603 (6th Cir.1998). I agree with the majority and the Sixth Circuit that the law of curtilage was not clearly defined as it pertained to the detached garage at issue in Daughenbaugh. The garage in Daughenbaugh was detached and located fifty to sixty yards from the home, did not have a working door, and was in serious disrepair. Id. at 596. In cases such as the present, however, where the garage is physically attached or adjacent to the home, cases such as Kyllo and Payton clearly establish that a warrant is required.3
Accordingly, I disagree with the majority’s analysis seeking to determine whether an attached garage is curtilage as opposed to an open field. Rather, I would hold that it is clearly established that an attached garage is neither an open field nor curtilage; it is part of the home.
Because I would hold that the attached garage is a part of the home, I disagree with the majority that considerations of whether intimate activities occurred therein could remove the Fourth Amendment protections. When dealing with the home itself, considerations of whether an area is *1218put to intimate use and the intrusiveness of the invasion are irrelevant. See Kyllo, 533 U.S. at 34-36, 121 S.Ct. 2038; Payton, 445 U.S. at 589-90, 100 S.Ct. 1371; Silverman v. United States, 365 U.S. 505, 511-12, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). People enjoy reasonable expectations of privacy in their homes even if they do not shield the inside of their homes from public view and their activities therein do not meet a narrow definition of “intimate.” See Kyllo, 533 U.S. at 37, 121 S.Ct. 2038 (“In the home ... all details are intimate details....”) (emphasis in original).
The majority concludes that the Defendants are entitled to qualified immunity because no Supreme Court, Eleventh Circuit, or Florida Supreme Court case has ruled that a garage with an open door is part of the home or curtilage as opposed to an open field. I would deny qualified immunity because the Supreme Court has ruled that an attached garage is part of the home. Accordingly, a warrant is required to enter the home, even if the activities therein are not strictly intimate and even if the door has not completely closed.
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding prece*1215dent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.
. Kyllo, 533 U.S. at 30, 121 S.Ct. 2038. The scan showed hot spots only on the roof over the garage and the sidewall of the garage. Kyllo, 533 U.S. 27, 121 S.Ct. 2038, app; Brief for Petitioner at 2, Kyllo, 533 U.S. 27, 121 S.Ct. 2038 (2001) (No. 99-8508), 2000 WL 33127872; Brief for the United States at 4, Kyllo, 533 U.S. 27, 121 S.Ct. 2038 (2001) (No. 99-8508), 2000 WL 1890949.
. See, e.g., United States v. Oaxaca, 233 F.3d 1154, 1157 (9th Cir.2000) (holding that an attached garage is part of the home for Pay-ton purposes even when the garage door is open); United States v. Cota-Lopez, 358 F.Supp.2d 579, 590 (W.D.Tex.2002) ("The [c]ourt agrees with [d]efendants that the attached [open] garage is part of the [Residence, and as a consequence, it is entitled to the same Fourth Amendment protection as the remainder of the residence. It is well established that the Fourth Amendment's protection is extended to garages.”).