Open-fields doctrine

The Open Fields Doctrine is a U.S. legal doctrine created judicially for purposes of evaluating claims of an unreasonable search by the government in violaiton of the Fourth Amendment of the U.S. Constitution.

The protection against unreasonable warrant-less searches by the government is found in the Fourth Amendment of the U.S. Constitution, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall 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.

Modern-day consideration of this protection begins with the interpretation of the Fourth Amendment provided by the U.S. Supreme Court in Katz v. United States, 389 U.S. 347 (1967). In Katz, the defendant challenged evidence gained by FBI agents from his telephone conversations, which were obtained through attaching an electronic listener to the exterior of the public telephone booth from which the calls were made. In this case, the Supreme Court stated that “the Fourth Amendment protects people --- and not simply areas.” Id. at 353. The court went onto say that the Fourth Amendment was meant to protect people’s privacy from the intrusions of unreasonable searches. The most oft cited section of the Katz case is found in Justice Harlan’s concurring opinion, where he provided an easy two-part test:

My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable. Id. at 361.

This type of approach “is both fact specific and changeable, based as it is on the way we live in our current society.” (Joseph, Paul R., Warrentless Search Law Deskbook, Westlaw, 2001: §7.2, pp 7-8). In other words whether someone takes steps to conceal their privacy may be determinative depending on the location they find themselves in. Likewise, the amount of privacy granted to an individual in a certain location by society will change with time, and so too might the implications this has on a Fourth Amendment analysis. The subjective expectation of privacy mentioned by Justice Harlan would appear to mean that the defendant wants privacy, not that he necessarily expects the government to honor his wishes. California v. Ciraolo, 476 U.S. 207, 211 (1986). In many situations the defendant may need to actively attempt to demonstrate this subjective desire for privacy, in order for the courts to recognize its existence. Bond v.United States, 120 S. Ct. 1462, 1465 (2000). In such cases the lack of this outward manifestation of the desire for privacy is interpreted to demonstrate that the defendant neither desired nor expected privacy. This is not to say, of course, that active steps need always be taken in order for the subjective expectation requirement to be met. Assuming that a subjective intent on the part of the defendant is found, it may still not be recognized by society. The myriad of situations in which the courts have failed to find a societal recognition of a privacy expectation can be divided into three broad categories: 1) physicality, 2) place, and 3) information. (Joseph, Paul R., Warrentless Search Law Deskbook, Westlaw, 2001:§7.2, 7-9). The physicality category is best described in the following manner: Is the physical situation in which the defendant’s expectation that he or she would not be observed reasonable? Id.

The place category is best described as: Some places have been deemed ones in which no expectation of privacy is reasonable even when steps are taken to shield the area from observation. Id.

The information category is described as follows: Some information has been deemed incapable of supporting a privacy expectation. If the information can be obtained without committing some other illegal search, no search will take place merely by reviewing the information. Id.

For the most part the exception to the Fourth Amendment, known as the “open fields doctrine,” has been placed under the category of place exceptions by federal courts. In Louisiana (as will be demonstrated later), however, there is some jurisprudence that suggests that the “open fields doctrine” is analyzed as though it were under the physicality category by that state’s courts.

The exception known as the “open fields doctrine” predates Katz and so the method in which it has been justified has changed since it was first blessed by the U.S. Supreme Court in the case of Hester v. United States, 265 U.S. 57 (1924). In that case the court summarized the doctrine when it stated that, “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields.” Id. at 57. In this “early” opinion the justification for using this common law doctrine for the purposes of analyzing the Fourth Amendment appears to be that the “open fields” are not specifically mentioned as a “constitutionally protected area” in the Fourth Amendment itself (the “open fields” are obviously not “persons, houses, papers, [nor] effects”). This method of reasoning gave way with the arrival of the landmark Katz case. Following Katz the key question has become, what is the societal expectation of privacy in any given fact situation. Under this “new” analysis of the Fourth Amendment, privacy expectations in areas which cannot support society’s reasonable expectation of privacy will not be altered by any steps taken by the defendant to shield the area from view. The U.S. Supreme Court pondered the effects of the Katz test on the effectiveness of the “open fields doctrine” in the case of Oliver v. United States, 466 U.S. 170 (1984). In Oliver the court stated: …open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Id at 179.

So under this evaluation the determination of whether an unreasonable search has occurred will turn on whether the questioned activity takes place in an open field. An “open field” as defined by the Oliver court is any area “out of doors in fields, except in the area immediately surrounding the home.” Id at 178. The area immediately surrounding the home is also sometimes referred to as the “curtilage.” Courts have treated this area as an extension of the house and so subject to all the privacy protections afforded a person’s home under the Fourth Amendment. United States v. Dunn, 480 U.S. 294, 300 (1987). The U.S. Supreme court has stated the factors used to determine whether a particular area of land is within the “curtilage” as follows: [T]he Fourth Amendment protects the curtilage of a house and that 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. We identified the central component of this inquiry as whether the area harbors the intimate activity associated with the sanctity of a man's home and the privacies of life. Id.

This means that the determination of whether an area is an “open field” requires that it must not be within the “cartilage” of a home and that what area encompasses the ‘curtilage” will be determined on a case by case basis looking at whether that area “harbors the intimate activity associated with the sanctity of a man’s home and the privacies of life.” The only way to create a more precise definition of which areas are “open fields” is to look at particular examples found in the federal jurisprudence following Oliver. Oliver v. United States, 466 U.S. 170 (1984): Acting upon a tip that defendant was growing marijuana on his property two Kentucky State Police Officers drove onto defendant’s land, past his house, up to a gate which was marked with a “no trespassing” sign. The officers left their vehicle and walked along a footpath around the gate onto defendant’s property and continued down the road for nearly a mile. At that distance from the house, the two officers spotted a large marijuana crop on plaintiff’s property. The defendant was arrested based on this find. At trial the defendant challenged the evidence on Fourth Amendment grounds and was successful in his attempt to have the trial court dismiss the evidence. The trial court, using the Katz test, determined that the defendant had a reasonable expectation of privacy in the field because he had done all that he could do to assert his privacy in the area from such a search. The Sixth Circuit Court of Appeals overturned the district court’s ruling, finding that Katz had not impaired the “open fields” doctrine. The court reasoned that the human relations that create the need for privacy do not usually occur in the open fields. The U.S. Supreme Court heard the case on appeal and affirmed the Sixth Circuit’s decision, stating: [A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. This rule is true to the conception of the right to privacy embodied in the Fourth Amendment. The Amendment reflects the recognition of the Framers that certain enclaves should be free from arbitrary government interference. For example, the Court since the enactment of the Fourth Amendment has stressed ‘the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.’ In contrast, open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Moreover, as a practical matter these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be. It is not generally true that fences or "No Trespassing" signs effectively bar the public from viewing open fields in rural areas. And both petitioner Oliver and respondent Thornton concede that the public and police lawfully may survey lands from the air. For these reasons, the asserted expectation of privacy in open fields is not an expectation that "society recognizes as reasonable. Id at 178-179.

United States v. Dunn, 480 U.S. 294 (1987): Drug Enforcement Agents began investigating the defendant when he purchased large quantities of chemicals used in the production of illegal drugs. The officers then witnessed the defendant placing these chemicals in a barn on his private ranch. The ranch was completely encircled by a perimeter fence, and contained several interior barbed wire fences, including one around the house approximately 50 yards from the barn, and a wooden fence enclosing the front of the barn, which had an open overhang and locked, waist-high gates. Without a warrant, officers crossed the perimeter fence, several of the barbed wire fences, and the wooden fence in front of the barn. They were led there by the smell of chemicals, and, while there, could hear a motor running inside. They did not enter the barn but stopped at the locked gate and shined a flashlight inside, observing what they took to be a drug laboratory. They then left the ranch, but entered it twice the next day to confirm the laboratory's presence. They obtained a search warrant and executed it, arresting respondent and seizing chemicals and equipment, as well as bags of amphetamines they discovered in the house. After the District Court denied defendant’s motion to suppress all evidence seized pursuant to the warrant, the defendant was convicted of conspiracy to manufacture controlled substances and related offenses. However, the Court of Appeals reversed, holding that the barn was within the residence's curtilage and therefore within the Fourth Amendment's protective ambit. The Supreme Court overturned the appeals court’s decision finding that the barn was outside the curtilage and so all evidence obtained by the officers while standing outside the barn and looking in was acceptable. Looking at whether the barn was inside the curtilage or rather in an open field, the court stated: [C]urtilage 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 surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from 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. Id at 301.

United States v. Burton, 894 F.2d 188 (6th Cir.), cert. denied, 498 U.S. 857 (1990):

Acting on information that the defendant was cultivating marijuana, two Kentucky State Police, without a search-warrant, entered onto defendant’s farm. In order to enter the property the two officers climbed over two series of fences which had “No Trespassing” signs posted all around them. Upon discovering large quantities of marijuana being grown, the defendant was arrested and charged with four drug related counts. The defendant was convicted of a lesser included offense, of which he appealed challenging that his Fourth Amendment rights had been violated. The Court of Appeals upheld the conviction, stating that the case was too factually similar to the Supreme Court’s ruling in Oliver to justify exclusion of the evidence. The Court of Appeals stated: The only difference between the cases is that here the police climbed over a fence and a locked gate, whereas in Oliver, the officers went around a locked gate. Given the cited language from Oliver it is evident that this distinction is not of constitutional significance. The same is true of Burton's claim that the police entry onto his land constituted a trespass under Kentucky State law. The Supreme Court, in Oliver, addressed this issue, in the identical context of Kentucky law, observing in the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment. Id at 191.

United States v. Hatch, 931 F.2d 1478 (11th Cir.), cert. denied, 502 U.S. 883 (1991): The defendant challenged a conviction for drug related offenses on the basis that the area searched by the police was within the “curtilage” of his home. He specifically argued that because the fence surrounding his home was unfinished in the direction where the drugs were discovered that the area was still within the “curtilage.” The Court of Appeals did not agree, stating: [T]he evidence that the curtilage that defines the property that was in question here is enclosed in the fencing around the home and taxidermist building, even if the fence may not be complete on the north, and perhaps east sides of the property. It is true in a narrow definition of the term perimeter that means all the way around. But it seems to me it isn't necessary that the fence be without any kind of breech [sic] in order for the curtilage to be defined for the purpose that we are talking about here. I think we have to be practical about the thing, and the areas where the fence may not be complete around his property is really not an area that is in question in connection with the investigation that was made by these officers. Id. at 1481.

Also central to the court’s findings was the presence of a barn, pig pens and several other obstacles found in the thirty yards between the house and the drug crop. United States v. Pace, 955 F.2d 270 (5th Cir.), cert. denied¸ 502 U.S. 883 (1992): Acting on a tip, Texas investigators, entered onto defendant’s property and peeked through a hole in a barn where they discovered marijuana being cultivated. With this information the officers gained a search-warrant, which they used to search the property. The defendant was eventually arrested, tried and convicted for possession with intent to distribute. The defendant challenged on Fourth Amendment grounds, claiming that the barn was inside the “curtilage” of his home. The court found that it was not and that the search was legal pursuant to the “open fields’ doctrine. The court held that the search was constitutional and that the barn was not within the curtilage of appellant's home because the barn was located a significant distance from the house, was separated from the house by an interior fence, was not being used for activities associated with the intimacies of home life, and was readily visible from the surrounding area.

Also See: Husband v. Bryan, 946 F.2d 27 (5th Cir. 1991); United States v. Benish, 5 F.3d 20 (3d Cir. 1993); United States v. McKeever, 5 F.3d 863 (5th Cir. 1993); United States v. Brady, 993 F.2d 177 (9th Cir. 1993); United States v. Depew, 8 F.3d 424 (9th Cir. 1993); United States v. Reilly, 76 F.3d 1271 (2d Cir. 1996); United States v. Gooch, 6 F.3d 673 (9th Cir. 1993). All of these cases demonstrate that the Federal Courts have continuously held that once an area is found to be outside the “curtilage”, entry, whether trespass or not, is no search. No matter what steps a person takes, he or she cannot create a reasonable privacy expectation in an area incapable of supporting one as a matter of constitutional law (namely an “open field”). The only question remaining is whether an area surrounding a structure, other than a house, is protected as a “curtilage.” Based on the operative question to be asked in determining whether a place is inside the “curtilage”, as stated in Dunn (whether the area was being used for activities associated with the intimacies of home life), many structures might extend the “curtilage” protection to the area’s immediately surrounding them. The courts have gone so far as to treat a tent as a “home” for Fourth Amendment purposes in the past. See: United States v. Gooch, 6 F.3d 673 (9th Cir. 1993); LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985); LaDuke v. Castillo, 455 F.Supp. (E.D. Wash. 1978). So theoretically, at least, the area immediately surrounding a tent might be considered “curtilage.” Basically if any structure is being used as a home for any extended period of time there is a chance that the area immediately surrounding that structure will be treated as “curtilage.” Despite this rather broad interpretation of “curtilage,” the courts seem willing to find areas to be outside of the curtilage if they are in anyway separate from the home (by a fence, great distance, other structures, even certain plants).