Open-fields doctrine

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Rolling countryside with fields, some cultivated, others not. There is a small house at the left center.
Open fields near Lisbon, Ohio.

The open-fields doctrine (also open-field doctrine or open-fields rule), in the U.S. law of criminal procedure, is the legal doctrine that a "warrantless search of the area outside a property owner's curtilage" does not violate the Fourth Amendment to the United States Constitution.[1] However, "unless there is some other legal basis for the search," such a search "must exclude the home and any adjoining land (such as a yard) that is within an enclosure or otherwise protected from public scrutiny."[2]

History[edit]

The open fields doctrine was first articulated by the U.S. Supreme Court in Hester v. United States,[3] which 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."[4] This opinion appears to be decided on the basis that "open fields are not a "constitutionally protected area" because they cannot be construed as "persons, houses, papers, [or] effects."

This method of reasoning gave way with the arrival of the landmark case Katz v. U.S.,[5] which established a two-part test for what constitutes a search within the meaning of the Fourth Amendment. The relevant criteria are "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'."[6] Under this new analysis of the Fourth Amendment, a search of an object or area where a person has no reasonable expectation of privacy is, in a legal sense, not a search at all. That search, therefore, does not trigger the protections of the Fourth Amendment.

In Oliver v. United States,[7] the Supreme Court held that a privacy expectation regarding an open field is unreasonable:

… 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.[8]

Courts have continuously held that entry into an open field—whether trespass or not—is not a search within the meaning of the Fourth Amendment. No matter what steps a person takes, he or she cannot create a reasonable privacy expectation in an open field, because it is an area incapable of supporting an expectation of privacy as a matter of constitutional law.[dubious ] In situations where the police allege that what was searched was an open field, this has the practical effect of shifting the argument from whether any given expectation of privacy is reasonable, to whether the given place is actually an open field or some other type of area like curtilage. This is because a person can have a reasonable expectation of privacy in areas classed as such.

Distinguishing open fields from curtilage[edit]

While open fields are not protected by the Fourth Amendment, the curtilage, or outdoor area immediately surrounding the home, may be protected. Courts have treated this area as an extension of the house and as such subject to all the privacy protections afforded a person's home (unlike a person's open fields) under the Fourth Amendment. An area is curtilage if it "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life."[9] Courts make this determination by examining "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."[10] Theoretically, many structures might extend the curtilage protection to the areas immediately surrounding them. The courts have gone so far as to treat a tent as a home for Fourth Amendment purposes in the past.[11][12][13] (Note: these are 9th Circuit Court of Appeals cases and would not be binding authority in many, if not most, cases.) It is possible that the area immediately surrounding a tent (or any structure used as a home) might be considered 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 any way separate from the home (by a fence, great distance, other structures, even certain plants).[14]

Rejections of doctrine by state courts[edit]

Since Oliver, the highest courts of Montana, New York and Oregon, as well as a Washington state appeals court, have held that the open-fields doctrine does not apply in those states due to their state constitutions granting greater protections to citizens (under dual sovereignty a state may grant its citizens more rights than those guaranteed in the federal constitution). Since Katz grounded privacy in persons rather than places, they argue, landowners who have taken affirmative steps to exclude the public such as fencing or posting the bounds assert a privacy interest sufficient to prevail over any warrantless search of the property where common exceptions such as hot pursuit and plain view do not apply. Some of those opinions have been critical of not only Oliver but Hester.

In a 2017 concurring opinion where the doctrine did not come into play in overturning a Wisconsin farmer's convictions for threatening two state game wardens he believed had been illegal hunters trespassing on his land, Justice Rebecca Grassl of that state's Supreme Court was highly critical of it.[15]

State v. Dixson[edit]

Within a year of Oliver, deputy sheriffs in Coos County, Oregon, followed up on a tip that marijuana was being grown on a local lumber company's land. After flying over the property in question and observing possible groves of the plant, then seeing a truck carrying water onto the property via a private access road, the deputies followed the road, past a cable stretched across it, signs prohibiting hunting on the property, and a felled tree, past which they had to proceed on foot to a dwelling at the center of the 40 acres (16 ha) of forest. From the dwelling they were able to see cannabis planted 800 feet (240 m) away, outside the curtilage of the house. The couple who were in the process of buying the property, and a friend who was helping them grow the plants, were arrested and later convicted of manufacturing and possessing a controlled substance.[16]

Oregon Court of Appeals[edit]

The appeals court reversed the conviction after hearing the appeal en banc in 1987. "The decisive issue is not, as the trial court apparently thought, one of federal law", Judge Thomas Young wrote for the plurality. "Whether defendant's land is constitutionally protected depends, in the first instance, not on United States Supreme Court cases interpreting the Fourth Amendment, but on the basic principles underlying the Oregon Constitution ... we need not join the federal retreat from the constitutional requirements."[17]

"[D]oes the constitution protect property as property, or is its protection of property a means to a greater end?" Young asked. The majority believed the answer was the latter, to which Young cited writings of William Pitt, 1st Earl of Chatham, who strongly supported the colonists in the years before the American Revolution, in support of their understanding of this concept of privacy: "The poorest man may, in his cottage, bid defiance to all the forces of the Crown." The U.S. Supreme Court had also recognized "the indefeasible right of personal security" as what is most breached by a search in its 1886 Boyd case.[18]

Oregon's Supreme Court had, since 1931, recognized this as a privacy interest, Young wrote, and as he found little guidance in federal privacy cases beyond the instant issues of those cases, the majority looked to Oregon case law as it had interpreted Article I, Section 9, of the state constitution, the counterpart to the Fourth Amendment. Young found Katz's two-part test unhelpful and flawed: "The proper question, thus, is not what the defendant expects or whether that expectation is reasonable but whether the constitution protects the defendant."[a] In this case, Young concluded, the deputies had trespassed on the Dixsons' land and violated their privacy.[19]

Judge John Buttler wrote a special concurrence for himself and two colleagues, reaching the same conclusion as the plurality but basing it on different logic which he felt was more in compliance with state Supreme Court precedent: "I would hold that, if it is necessary for the officers to trespass on property not within the curtilage in order to observe the activity or contraband in question, there is an unreasonable search and, therefore, any ensuing seizure would be unlawful." In the instant case, Buttler said that it had, as one of the deputies had testified that he and his partner had at all times believed they were on the lumber company's property and would not have entered without a warrant or permission had they known they were not.[20]

Judge George Van Hoomissen wrote one of two dissents, taking issue with every aspect of the plurality opinion—arguing that there was no evidence that the framers of the state constitution had intended it be read more than literally, that the appeals court was ignoring earlier precedents that had explicitly adopted the open-fields doctrine, that the defendants had not raised a trespass claim against the deputies at trial, and that courts in other states with similar constitutional language had found it compatible with the doctrine. "[T]he plurality has hopelessly confused constitutional law with the civil and criminal law of trespass [and] ... substitutes its own social theories for the plain meaning of the specific constitutional text", he wrote. Van Hoomissen also noted that if the plurality needed guidance as to whether the citizens of Oregon had embraced an expectation of privacy around growing marijuana, the failure of a 1986 ballot measure that would have decriminalized the drug suggested otherwise.[21]

A shorter dissent was written by Judge Kurt Rossman, joined by Mary Deits. While he agreed with the plurality that the state constitution was not meant to be read in a narrowly literal manner, and with the special concurrence's criticism of the plurality's disregard of precedent, he believed that the defendants had not established that they had a reasonable expectation of privacy, since the signage that the deputies passed simply said "No hunting" rather than "No trespassing" and the felled tree merely signaled an intent to deter vehicles, not foot traffic; thus the deputies could reasonably have believed they were still on lumber company land. "It is unnecessary to sail into uncharted waters by formulating a new, untested constitutional analysis, as the plurality and special concurrence have done."[22]

Oregon Supreme Court[edit]

Prosecutors appealed the case to the Oregon Supreme Court, which heard arguments in March 1988 and returned its decision at the end of the year. Writing for a unanimous court, Justice W. Michael Gillette affirmed the lower court's holding that Article I, Section 9 provided broader privacy protection than the Fourth Amendment and thus the open-fields doctrine did not apply in state prosecutions.[23]

After reviewing the facts of the case and all the appellate court's opinions, Gillette considered all the arguments. The two cases Van Hoommissen had pointed to as precedent adopting the open-fields doctrine were actually not dispositive of the issue, since one had involved a search on public land and the other appeared to rely on circumstances unique to that case. In another of its own recent holdings, he noted, the state Supreme Court had also rejected Katz''s reasonable expectation test, so in the instant case the court could consider the issue without relying on it.[24]

Gillette rejected the textualist interpretation of the constitutional language that had been held by the Supreme Court and other states' courts to support the doctrine for thre reasons. First, the court's own prior holdings recognized Article I, Section 9, as establishing a broad privacy interest beyond those items specified in it. Second, the Supreme Court had itself admitted in Katz that in extending privacy protection to the user of a phone booth it was going beyond any possible meaning of "persons, houses, papers and effects", as Justice Thurgood Marshall had noted in his Oliver dissent. Lastly, Gillette noted, if read literally the Fourth Amendment as well as Oregon's constitution would have only protected citizens in their own houses, and not in any other buildings. "If the individual has a privacy interest in land outside the curtilage of his dwelling, that privacy interest will not go unprotected simply because of its location."[25]

Next, Gillette turned to the claim that common law recognized a distinction between the curtilage of a house and the property as a whole. In Hester, Justice Oliver Wendell Holmes had cited William Blackstone's Commentaries on the Laws of England, a common reference for English common law, in holding this distinction originated there. But Gillette quoted the passage Holmes had cited, in which Blackstone discussed what constituted burglary under common law, to cast doubt on Holmes' interpretation, noting that Blackstone had included all the possible outbuildings as places where unlawful entry and theft could be punished as burglary. Blackstone's chapter on trespass likewise specifically mentioned a man's land as legally protected. "Reliance on the common-law concept of curtilage to justify excluding land outside the curtilage from the protections of either constitutional provision is misplaced", Gillette concluded."[26]

Lastly Gillette rejected the state's argument that whether land outside curtilage was covered by its owner's privacy interest depended on how that land was used. It depended, he wrote, on whether the owner had taken steps to exclude intruders, such as putting up fences or posting the bounds. "Allowing the police to intrude into private land, regardless of the steps taken by its occupant to keep it private, would be a significant limitation on the occupant's freedom from governmental scrutiny."[27]

From this Gillette derived a "simple and objective" rule: "A person who wishes to preserve a constitutionally protected privacy interest in land outside the curtilage must manifest an intention to exclude the public by erecting barriers to entry, such as fences, or by posting signs." He then applied the rule to the instant case and found that it did not apply to the Dixsons since the signs they had posted on the road to their house barred only hunting. "There was no objective reason for the officers to believe that ... other uses such as hiking were forbidden" since it was common in Oregon for those uses to take place on large tracts of privately owned land where it was not expressly forbidden. Therefore, having affirmed the appeals court's rejection of the open-fields doctrine, the state's Supreme Court reversed it on the specific issues of the case and affirmed the conviction.[27]

See also[edit]

Notes[edit]

  1. ^ Emphasis in original

References[edit]

  1. ^ Black's Law Dictionary (9th ed. 2009), open-fields doctrine
  2. ^ Black's Law Dictionary (9th ed. 2009), open-fields doctrine
  3. ^ Hester v. United States, 265 U.S. 57 (1924).
  4. ^ Hester, 265 U.S. at 57.
  5. ^ Katz v. U.S., 389 U.S. 347 (1967).
  6. ^ Katz, 389 U.S. at 361.
  7. ^ Oliver v. United States, 466 U.S. 170 (1984).
  8. ^ Oliver, 466 U.S. at 179.
  9. ^ United States v. Dunn, 480 U.S. 294, 300 (1987).
  10. ^ Dunn, 480 U.S. at 301.
  11. ^ United States v. Gooch, 6 F.3d 673 (9th Cir. 1993).
  12. ^ LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985)'
  13. ^ LaDuke v. Castillo, 455 F.Supp. (E.D. Wash. 1978).
  14. ^ U.S. v. Hatch, 931 F.2d 1478 (11th Cir.), cert. denied, 502 U.S. 883 (1991).
  15. ^ State v. Stietz, 895 N.W. 2d 796, 812–815 (Wisc. 2017).
  16. ^ State v. Dixson, 740 P.2d 1124 (Or.App. 1987). ; hereafter Dixson I
  17. ^ Dixson I, 1226.
  18. ^ Dixson I, 1227.
  19. ^ Dixson I, 1228.
  20. ^ Dixson I, 1229–32.
  21. ^ Dixson I, 1233–41.
  22. ^ Dixson I, 1241–42.
  23. ^ State v. Dixson, 766 P.2d 1015 (Oregon 1988). ; hereafter Dixson II
  24. ^ Dixson II, 1018–21
  25. ^ Dixson II, 1021–22
  26. ^ Dixson II, 1022–23
  27. ^ a b Dixson II, 1023–24