Open Fields 2

OLIVER v. UNITED STATES United States Supreme Cow-t 466 U.S. 170 (1984) JUSTICE PowELL delivered the opinion of th .e Court. The "open fields" doctrine, first enunciated by this Court in Hester -u United States, 265 U.S. 57 (1924), permits police officers to enter and search a field without a warrant. We granted certiorari in these cases to clarify confusion that has arisen as to the continued vitality of the doctrine. I No. 82-15. Acting on reports that marijuana was being raised on the farm of petitioner Oliver, two narcotics agents of the Kentucky State Police went to the farm to investigate. Arriving at the farm, they drove past petitioner's house to a locked gate with a "No Trespassing'' sign. A foot-path led around one side of the gate. The agents walked around the gate and along the road for several hundred yards, passing a barn and a parked camper. At that point, someone standing in front of the camper shouted, "No hunting is allowed, come back here." The officers shouted back that they were Kentucky State Police officers, but found no one when they retw·necl to the camper. The officers resumed thei!· investigation of the f a rm and found a field of marijuana over a mile from petitioner's home. Petitioner was arrested and indicted for "manufacturing" a "controlled sub- stance." 21 U.S.C. § 841(a)(l). After a pretrial hearing, the District Court sup- pressed evidence of the discovery of the marijuana fields. Applying Katz -u United States, . .. the court found that petitioner had a reasonable expectation that the fields would remain private because petitioner "had done all that could be expected of him to assert his privacy in the area of farm that was searched." He had posted no trespassing signs at regular intervals and had locked the gate at the entrance to the center of the farm. Further, the com·t noted that the fields themselves are highly secluded: they are bounded on all sides by woods, fences and embankments and cannot be seen from any point of public access. The court concluded that this was not an "open" field that invited casual intrusion. The Court of Appeals for the Si.>..-th Circuit, sitting en bane, reversed the district court. . . . The court concluded that Katz, upon which the District Court relied, had not impaired the vitality of the open fields doctrine of H este1·. Rather, the open fields doctrine was entirely compatible with Katz's emphasis on privacy. The court reasoned that the "human relations that create the need for privacy do not ordinarily take place" in open fields, and that the property owner's common law right to exclude trespassers is insufficiently Jinked to p1ivacy to wan-ant the Fourth Amendment's protection. No. 82-1278. After receiving an anonymous tip that marijuana was being grown in the woods behind respondent Thornton's residence, two police officers entered

§ 3.04 WARRANTLESS SEARCHES 3 41 the woods by a path between his residence and a neighboring house. They followed a footpath through the woods until they reached two marijuana patches fenced with chicken wire. Later, the officers determined that the patches were on the property of respondent, obtained a warrant to search the property and seized the marijuana. On the basis of this evidence, respondent was an·ested and indicted. The trial court granted respondent's motion to suppress the fruits of the second search. The warrant for this search was premised on information that the police had obtained during their previous warrantless search, that the court found to be unreasonable. "No Trespassing" signs and the secluded location of the marijuana patches evinced a reasonable expectation of privacy. Therefore, the court held, the "open fields" doctrine did not apply. The Maine Supreme Judicial Court afnrmed . ... It agreed with the trial court that the correct question was whether the search "is a violation of privacy on which the individual justifiably relied," id. . . . , and that the search violated respondent's privacy. The court also agreed that the "open fields" doctrine did not justify the search. That doctrine applies, according to the court, only when officers are lawfully present on property and observe "open and patent" activity. . . . In this case, the ofncers had trespassed upon defendant's property, and the respondent had made every effort to conceal his activity. II The ruie announced in Hester -u United States was founded upon the explicit language of the Fourth Amendment. That Amendment indicates with some precision the places and things encompassed by its protections. ,As Justice Holmes explained for the Court in his characteristically laconic style: "[T]he special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law." . . . Nor are the open fields' "effects" \vi thin the meaning of the Fourth Amendment. In this respect, it is suggestive that James Madison's proposed draft of what became the Fourth Amendment preserves "[t]he rights of the people to be secure in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures." See N. Lass on, 1.'he History and Development of the Fou1ih Amendment to the United States Constitution 100, n. 77 (1937). Although Congress' revisions of Madison's proposal broadened the scope of the Amendment in some respects, id., at 100-103, the term "effects" is less inclusive than "property" and cannot be said to encompass open fields. We conclude, as did the Court in deciding Hester -u United States, that the government's intrusion upon the open fields is not one of those "unreasonable searches" proscribed by the text of the Fourth Amendment. III This interpretation of the Fourth Amendment's language is consistent with the understanding of the right to privacy expressed in our Fourth Amendment jurisprudence. Since Katz -u United States, . . . the touchstone of Fourth Amend-

JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JuS'nCE STEVENS join, dissent- ing. The Court's inability to reconcile its parsimonious reading of the phrase "persons, houses, papers, and effects" with our prior decisions or even its own holding is a symptom of a more fundamental infirmity in the Court's reasoning. The Fourth Amendment, like the other central provisions of the Bill of Rights that loom large in our modern jurisprudence, was designed, not to prescribe with "precision" permissible and impermissible activities, but to identify a fundamental human liberty that should be shielded forever from government intrusion. We do not construe constitutional provisions of this sort the way we do statutes, whose drafters can be expected to indicate with some comprehensiveness and exactitude the conduct they wish to forbid or control and to change those prescriptions when they become obsolete. Rather, we strive, when interpreting these seminal consti- tutional provisions to effectuate their purposes - to lend them meanings that ensure that the liberties the Framers sought to protect are not undermined by the changing activities of government officials. Certain spaces are so presumptively private that signals of this sort are unnecessary; a homeowner need not post a "do not enter" sign on his door in order to deny entrance to uninvited guests. Privacy interests in other spaces are more ambiguous, and the taking of precautions is consequently more important; placing a lock on one's footlocker strengthens one's claim that an examination of its contents is impermissible. See United States u Chadwick. . . . Still other spaces are, by positive law and social convention, presumed accessible to members of the public unless the owner manifests his intention to exclude them. Private land marked in a fashion sufficient to render entry thereon a criminal trespass under the law of the state in which the land lies is protected by the Fourth Amendment's proscription of unreasonable searches and seizures. One of the advantages of the foregoing rule is that it draws upon a doctrine already familiar to both citizens and government officials. In each jurisdiction, a substantial body of statutory and case law defines the precautions a landowner must take in order to avail himself of the sanctions of the criminal law. The police know that body of law, because they are entrusted with responsibility for enforcing it against the public; it therefore would not be difficult for the police to abide by it themselves. By contrast, the doctrine announced by the Court today is incapable of determinate application. Police officers, making warrantless entries upon private land, will be obliged in the future to make on-the-spot judgments as to how far the curtilage extends, and to stay outside that zone. In addition, we may expect to see a spate of litigation over the question of how much improvement is necessary to remove private land Crom the category of "unoccupied or undeveloped area" to which the "open fields exception" is not deemed applicable.

UNITED STATES v. DUNN United States Supreme Com-t 480 U .s. 294 (1987) JUSTICE WHITE delivered the opinion of the Court. We g ranted the Government's petition for certiorari to decide whether the area near a barn, located approximately 50 yards from a fence sm-rounding a ranch house, is, for Fourth Amendment purposes, within the curtilage of the house .. I Respondent Ronald Dale Dunn and a codefendant, Robert Lyle Carpenter, were convicted by jury of conspiring to manufacture phenylacetone and amphetamine, and to possess amphetamine with intent to distribute, in violation of21 U.S.C. § 846. Respondent was also convicted of manufacturing these two controlled substances and possessing amphetamine with intent to distribute. The events giving rise to respondent's apprehension and conviction began in 1980 when agents from the Drug Enforcement Administration (DEA) discovered that Carpenter had pw·chased large quantities of chemicals and equipment used in the manufactw·e of amphet- amine and phenylacetone. DEA agents obtained warrants from a Texas state judge authorizing installation of miniature electronic transmitter tracking devices, or "beepers," in an electric hot plate stirrer, a drum of acetic anhydride, and a

346 THE FOURTH AMENDMENT AND THE SEIZURE OF EVIDENCE CH. 3 we believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure sur r ounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area f r om observation by people passing by . ... We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a "correct" answer to all extent-of-curtilage questions. Rather, these factors 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. Applying these factors to respondent's barn and to the area immediately surrounding it, we have little difficulty in concluding that this area lay outside the curtilage of the ranch house. First. The record discloses that the barn was located 50 yards from the fence surrounding the house, and 60 yards from the house itself. .. . Standing in isolation, this substantial distance supports no inference that the barn should be treated as an adjunct of the house. Second. It is also significant that respondent's barn did not lie within the area surrounding the house that was enclosed by a fence. We noted in Oliver . . . that "for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage - as the area around the home to which the activity of home life extends -is a familiar one easily understood from our daily experience." . . . Viewing the physical layout of respondent's ranch in its entirety . . . it is plain that the fence surrounding the residence serves to mark a specific area of land immediately adjacent to the house that is readily identifiable as part and parcel of the house. Conversely, the barn -the front portion itself enclosed by a fence - and the area immediately surrounding it, stands out as a distant portion of respondent's ranch, quite separate from the residence. Third. It is especially si gn ificant that the law enforcement possessed objective data indicating that the barn was not being used for intimate activities of the home. The aerial photographs showed that the truck Carpenter had been driving that contained the container of phenylacetic acid was backed up to the barn, "appar- ently," in the words of the Court of Appeals, "for the unloading of its contents." . . . When on respondent's property, the officers' suspicion was further directed toward the barn because of "a very strong odor" of phenylacetic acid .... As the DEA agent approached the barn, he "could hear a motor running, like a pump motor of some sort. . . . " . . . Fwthermore, the officers detected an "extremely strong" odor of phenylacetic acid coming f r om a small crack in the wall of the barn. . . . Finally, as the officers were standing in f r ont of the barn, immediately prior to looking into its interior through the netting material, "the smell was very, very strong . . . [and the officers] could hear the motor running very loudly." . . . When considered together, the above facts indicated to the officers that the use to which the barn was being put could not fairly be characterized as so associated with the activities and privacies of domestic life that the officers should have deemed the barn as part of respondent's home. F01.i1th. Respondent did little to protect the barn area from observation by those

§ 3.04 WARRANTLESS SEARCHES 347 standing in the open field. Nothing in the record suggests that the various interior fences on respondent's property had any function other than that of the typical ranch fence; the fences were designed and constructed to co1Tal livestock, not to prevent persons from observing what lay inside the enclosed areas. III Respondent submits an alternative basis for affirming.the judgment below, one that was presented to but ultimately not relied upon by the Court of Appeals. Respondent asserts that he possessed an expectation of privacy, independent from his home's curtilage, in the barn and its contents, because the barn is an essential part of his business. . . . We may accept, for the sake of argument, respondent's submission that the barn enjoyed Fourth Amendment protection and could not be entered and its contents seized without a warrant. But it does not follow on the record before us that the officers' conduct and the ensuing search and seizure violates the Constitution. Oliver reaffirmed the precept, established in Hester, that an open field is neither a "house" nor an "effect," and, therefore, "the government's intrusion upon the open fields is not one of those 'unreasonable searches' proscribed by the text of the Fourth Amendment." . . . The Court expressly rejected the argument that the erection of fences on an open field - at least of the variety involved in those cases and in the present case - creates a constitutionally protected privacy interest. . . . It follows that no constitutional violation occurred here when the officers crossed over respondent's ranch-style perimeter fence, and over several similarly con- structed interior fences, prior to stopping at the locked front gate of the barn. As previously mentioned, the officers never entered the barn, nor did they enter any other structure on respondent's premises. Once at their vantage point, they merely stood, outside the curtilage of the house and in the open fields, upon which the barn was constructed, and peered into the barn's open front. And, standing as they were in the open fields, the Constitution did not forbid them to observe the phenylacetone laboratory located in respondent's barn. This conclusion flows naturally from our previous decisions. Under Oliver and Hester, there is no constitutional difference between police observations conducted while in a public place and while standing in the open fields. Similarly, the fact that the objects observed by the officers lay within an area that we have assumed, but not decided, was protected by the Fourth Amendment does not affect our conclusion. . . . The officers lawfully viewed the interior of respondent's barn, and their observations were properly considered by the magistrate in issuing a search warrant for respondent's premises. Accordingly, the judgment of the Court of Appeals is reversed. [JUSTICE BnENNAN, joined by JUSTICE MAnsHALL, dissented.]