¶ 61. (dissenting). This decision allows law enforcement officers who have no search warrant to enter the residential subdivision lot and search 20 feet from the house where the defendant resides.
¶ 62. The property in question is a one and one-half acre lot in a platted residential subdivision next to a public lake lined with cottages. The lot is near roads and adjacent to neighbors' houses in the same subdivision. Except for the house, driveway and sheds at the rear of the property, the lot has been left in a natural state. A drawing of the lot based on the defendant's sketch is attached.
¶ 63. I would affirm the decision of the court of appeals. I dissent because I conclude that allowing a warrantless search 20 feet from the house violates the Fourth Amendment of the U.S. Constitution.1 The *830State has failed to meet its burden of proving that the area in which the marijuana was found was outside the home protected by the Fourth Amendment from war-rantless searches. The uncontroverted evidence is that the defendant's use of the area in question is a use ordinarily considered as part of the curtilage to the home.
¶ 64. The fundamental constitutional principle governing this case is that a warrantless search of a home is "presumptively unreasonable." Welsh v. Wisconsin, 466 U.S. 740, 749 (1984) (quoting Payton v. New York, 445 U.S. 573, 586 (1980)).2
¶ 65. The home protected by the Fourth Amendment includes more than the house. The constitutional protections attach to land surrounding the house. The land around the house protected by the Fourth Amendment is known in the law as the curtilage of the home.3 The majority opinion in this case ends the curti-*831lage — and ends constitutional protection for the home — at 20 feet from the house, far less than 10 yards, the distance required for a "first down."
¶ 66. The U.S. Supreme Court has held that the protected curtilage extends to the land that "an individual reasonably may expect. . .should be treated as the home itself."4 The curtilage is an area so intimately tied to the home that it should be placed under the home's protective umbrella.5
*832¶ 67. The State has the burden of proving that a warrantless search does not violate the U.S. Constitution.6 In other words, the State must prove that the area searched in this case is not curtilage. The State has not met this burden. Accordingly, I agree with the court of appeals that this search violated the U.S. Constitution.7
¶ 68. The State argues that the use to which the property is put is the determinative factor in determining curtilage in this case. Petitioner's Brief at 14, 17. Several courts have held that a homeowner's maintenance of a garden in an area being searched is strong evidence that the area is part of the protected curtilage.8
¶ 69. The defendant testified that the marijuana pots were on a path that he "routinely" traveled between his house and the sheds at the rear of the lot, which contained his ginseng and goldenseal plants. He also raised worms in horse manure in this area and *833kept a compost heap, which he used to fertilize the ginseng. He further testified that he kept the path open with a brush cutter.
¶ 70. The investigating officer agreed there was a path or trail leading from the house toward the back of the lot. According to the officer, he did not follow the path beyond the marijuana pails and therefore offered no evidence about the use of the sheds. The State thus presented no evidence to contravene the defendant's testimony.
¶ 71. The majority opinion finds that the sheds where the defendant cultivated ginseng and worms do not constitute a garden " 'as that term is commonly understood.'" Majority op. at ¶ 41 (quoting Petitioner's Reply Brief at 10). It is unclear what evidence the majority opinion relies on to make this factual finding.
¶ 72. The circuit court made no finding of fact about the defendant's use of the area in question. Furthermore, the circuit court made no mention of how the evidence fits within the test established by the U.S. Supreme Court in United States v. Dunn, 480 U.S. 294 (1987). The circuit court simply concluded that "there was no expectation of privacy in that particular area and that the warrant was appropriately sought." The circuit court's findings and decision are quoted in full at ¶ 31 of the majority opinion.
¶ 73. The majority acknowledges that the circuit court made "few findings of evidentiary or historical fact" but asserts that "an appellate court can assume that the circuit court determined the fact in a manner that supports the circuit court's ultimate decision." Majority op. at ¶ 31 (citing Sohns v. Jensen, 11 Wis. 2d 449, 453, 105 N.W.2d 818 (1960)). This rule of appellate practice does not apply in the present case.
*834¶ 74. An appellate court can assume that the circuit court made a finding of fact only when evidence exists in the record to support the "assumed fact." If the record does not support the "assumed fact" then the finding of the "assumed fact" is clearly erroneous and cannot be sustained. Nothing in the record supports a factual finding by the circuit court that the area in question was not used for gardening. Thus the circuit court could not make this particular finding of fact, which the majority assumes it made. An appellate court as a rule cannot make any findings of fact.9 I conclude therefore that the State has not met its burden to prove that the area searched was not curtilage.
¶ 75. In addition to relying on a record that is factually insufficient, the majority opinion fails to provide any compelling overall rationale or theoretical basis for its conclusion that the curtilage ends 20 feet from the house. The majority opinion concedes that the four factors set forth in United States v. Dunn, 480 U.S. 294 (1987), a case which involved a search on a 198-acre ranch, are not to be applied mechanically.10 The majority nevertheless undertakes a formalistic review of each of the Dunn factors but engages in no analysis of the Dunn factors as a whole, how they interact, or how they weigh against each other.
¶ 76. The majority opinion delivers two messages that are of dubious validity. First, the majority opinion seems to say that law enforcement has a right to observe at least some part of everyone's wooded residential lot without a search warrant, or it "would be creating an observation-free zone for criminal activity *835on all wooded property." Majority op. at ¶ 42.1 disagree with the suggestion that law enforcement must be given an area in every residential wooded lot from which to observe the property without a warrant.
¶ 77. Second, the majority suggests that if homeowners want Fourth Amendment protection for land around their house then they must chop down any existing trees and plant new ones. The majority opinion suggests that if the defendant had planted the trees, the tree line would support an expectation of privacy on his lot, but because the defendant merely left trees standing he did not express an expectation of privacy. Majority op. at ¶ 42. I cannot agree with this reasoning. See State v. Lange, 158 Wis. 2d 609, 620, 463 N.W.2d 390 (Ct. App. 1990) (whether defendant planted trees or "merely chose to live on the property because the trees afforded privacy, he took steps to protect the area from observation by people passing by").
¶ 78. I agree with the court of appeals that the facts in this record are insufficient to support a conclusion that the warrantless search was constitutional. If the majority is unwilling to suppress the evidence of the marijuana plants, it should remand this case to the circuit court to give the State a second chance to prove that the land in question is outside the curtilage. Before this court impinges on the privacy of a home, the court should demand a better record than exists in the present case.11
*836¶ 79. For the reasons set forth, I dissent.
¶ 80. I am authorized to state that JUSTICE WILLIAM A. BABLITCH and JUSTICE ANN WALSH BRADLEY join this dissent.
*837Drawing of the hot Based on the Defendant's Sketch
[[Image here]]
U.S. CONST. amend. IV provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, *830shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Before entering the defendant's property the officers attempted to get a search warrant but were rebuffed by the district attorney and the judge, who determined that the officers did not have probable cause to believe that evidence of a crime would be found on the defendant's property. There is no evidence to suggest that an emergency existed or that the officers otherwise had legal grounds to search the defendant's property.
The majority's decision may have an unforeseen consequence. In narrowing the meaning given to curtilage the court also may be narrowing the scope of searches permissible under a warrant authorizing a search of a building.
Areas within the curtilage may be subject to police observation. The U.S. Supreme Court has allowed police observation *831of a curtilage from a plane in public navigable airspace. California v. Ciraolo, 476 U.S. 207 (1986).
United States v. Dunn, 480 U.S. 294, 300 (1987).
Dunn, 480 U.S. at 301.
The relation between the curtilage and open fields doc-’ trines is unclear. The open fields cases appear to deal with the issue of whether a person may have a reasonable expectation of privacy and protection of the Fourth Amendment in property that is not within the home's curtilage. See Oliver v. United States, 466 U.S. 170, 180 n. 11 (1984) ("Neither petitioner Oliver nor respondent Thornton has contended that the property searched is within the curtilage... .It is clear, however, that the term 'open fields' may include any unoccupied or undeveloped area outside of the curtilage."); 1 Wayne R. LaFave, Search and Seizure at § 2.3(d) (3d ed. 1996) ("in applying Oliver in United States v. Dunn [480 U.S. 294 (1987)], the Court ruled that merely looking into a barn outside the curtilage was no search, but did not challenge the defendant’s assertion 'that he possessed an expectation of privacy independent from his home's curtilage. . . .'"); at § 2.4(a) ("Because Oliver takes the position that to fall within the 'open fields' classification the area in question must be outside the curtilage, the meaning of that concept has become increasingly important...").
Also murky is the relation of the reasonable expectation of privacy doctrine to the open fields doctrine. See, e.g., United States v. Santa Maria, 15 F.3d 879 (9th Cir. 1994) (holding that although defendant's trailer was outside the curtilage to the *832home, it was still protected from warrantless searches by the Fourth Amendment).
State v. Washington, 134 Wis. 2d 108, 120, 396 N.W.2d 156 (1986).
I also agree with the court of appeals (and the majority opinion) that the scope of curtilage for Fourth Amendment purposes is a question of constitutional law that an appellate court decides independently, benefiting from the legal analyses of other courts that have addressed the issue.
See, e.g., State v. Lange, 158 Wis. 2d 609, 618-20, 463 N.W.2d 390 (Ct. App. 1990) (marijuana seized was within the defendant's curtilage since it was next to a vegetable garden and enclosed by a fence on three sides); United States v. Jenkins, 124 F.3d 768, 773 (6th Cir. 1997) (holding that part of a search was unlawful because it invaded defendants' enclosed backyard, which had a garden, a laundry line, and other homelike activities).
Wurtz v. Fleischman, 97 Wis. 2d 100, 108, 293 N.W.2d 155 (1980).
See majority op. at ¶ 30 n.12 (quoting United States v. Dunn, 480 U.S. at 301).
This case is one of several in which I believe the court has not been sufficiently protective of the privacy of the home. For example, in State v. Welsh, 108 Wis. 2d 319, 321 N.W.2d 245 (1982), this court allowed law enforcement officers to enter a home to arrest a driver suspected of driving under the influence of intoxicants, which was a non-criminal offense at that time *836under Wisconsin law. The U.S. Supreme Court overturned this decision. Welsh v. Wisconsin, 466 U.S. 740 (1984).
In State v. Stevens, 181 Wis. 2d 410, 511 N.W.2d 591 (1994) and State v. Richards, 201 Wis. 2d 845, 549 N.W.2d 218 (1996), this court declared that a no-knock entry is permissible when officers have a warrant to search the home of a suspected felony drug dealer. The U.S. Supreme Court concluded that our court had erred in adopting this categorical approach. Richards v. Wisconsin, 520 U.S. 385 (1997).
Similarly the majority does not give sufficient consideration to the Fourth Amendment's protection of the home in this case and in State v. Ward, 2000 WI 3, 231 Wis. 2d 723, 604 N.W.2d 517.