Oliver v. United States (1984)
Oliver v. United States, 466 U.S. 170 (1984)
Oliver v. United States
No. 82-15
Submitted November 9, 1983
Decided April 17, 1984
ERROR TO THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF SOUTH CAROLINA
Syllabus
In No. 82-15, acting on reports that marihuana was being raised on petitioner’s farm, 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, but with a footpath around one side. The agents then walked around the gate and along the road and found a field of marihuana over a mile from petitioner’s house. Petitioner was arrested and indicted for “manufactur[ing]” a “controlled substance” in violation of a federal statute. After a pretrial hearing, the District Court suppressed evidence of the discovery of the marihuana field, applying Katz v. United States, 389 U. S. 347, and holding that petitioner had a reasonable expectation that the field would remain private and that it was not an “open” field that invited casual intrusion. The Court of Appeals reversed, holding that Katz had not impaired the vitality of the open fields doctrine of Hester v. United States, 265 U. S. 57, which permits police officers to enter and search a field without a warrant. In No. 82-1273, after receiving a tip that marihuana was being grown in the woods behind respondent’s residence, police officers entered the woods by a path between the residence and a neighboring house, and followed a path through the woods until they reached two marihuana patches fenced with chicken wire and having “No Trespassing” signs. Later, the officers, upon determining that the patches were on respondent’s property, obtained a search warrant and seized the marihuana. Respondent was then arrested and indicted. The Maine trial court granted respondent’s motion to suppress the fruits of the second search, holding that the initial warrantless search was unreasonable, that the “No Trespassing” signs and secluded location of the marihuana patches evinced a reasonable expectation of privacy, and that therefore the open fields doctrine did not apply. The Maine Supreme Judicial Court affirmed.
Held: The open fields doctrine should be applied in both cases to determine whether the discovery or seizure of the marihuana in question was valid. Pp. 466 U. S. 176-184.
(a) That doctrine was founded upon the explicit language of the Fourth Amendment, whose special protection accorded to “persons houses, papers, and effects” does “not exten[d] to the open fields.” Hester v. United States, supra, at 265 U. S. 59. Open fields are not “effects” within the meaning of the Amendment, the term “effects” being less inclusive than “property,” and not encompassing open fields. The government’s intrusion upon open fields is not one of those “unreasonable searches” proscribed by the Amendment. Pp. 466 U. S. 176-177.
(b) Since Katz v. United States, supra, the touchstone of Fourth Amendment analysis has been whether a person has a “constitutionally protected reasonable expectation of privacy.” Id. at 389 U. S. 360. The Amendment does not protect the merely subjective expectation of privacy, but only those “expectation[s] that society is prepared to recognize as reasonable.'” Id. at 389 U. S. 361. Because open fields are accessible to the public and the police in ways that a home, office, or commercial structure would not be, and because fences or “No Trespassing” signs do not effectively bar the public from viewing open fields, the asserted expectation of privacy in open fields is not one that society recognizes as reasonable. Moreover, the common law, by implying that only the land immediately surrounding and associated with the home warrants the Fourth Amendment protections that attach to the home, conversely implies that no expectation of privacy legitimately attaches to open fields. Pp. 466 U. S. 177-181.
(c) Analysis of the circumstances of the search of an open field on a case-by-case basis to determine whether reasonable expectations of privacy were violated would not provide a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment. Such an ad hoc approach not only would make it difficult for the policeman to discern the scope of his authority, but also would create the danger that constitutional rights would be arbitrarily and inequitably enforced. Pp. 466 U. S. 181-182.
(d) Steps taken to protect privacy, such as planting the marihuana on secluded land and erecting fences and “No Trespassing” signs around the property, do not establish that expectations of privacy in an open field are legitimate in the sense required by the Fourth Amendment. The test of legitimacy is not whether the individual chooses to conceal assertedly “private” activity, but whether the government’s intrusion infringes upon the personal and societal values protected by the Amendment. The fact that the government’s intrusion upon an open field is a trespass at common law does not make it a “search” in the constitutional sense. 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. Pp. 466 U. S. 182-184.
686 F.2d 356, affirmed; 453 A.2d 489, reversed and remanded.
POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, REHNQUIST, and O’CONNOR, JJ., joined, and in Parts I and II of which WHITE, J., joined. WHITE, J., filed an opinion concurring in part and concurring in the judgment, post, p. 466 U. S. 184. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post p. 466 U. S. 184.
The “open fields” doctrine, first enunciated by this Court in Hester v. 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
Acting on reports that marihuana 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 footpath 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 up here.” The officers shouted back that they were Kentucky State Police officers, but found no one when they returned to the camper. The officers resumed their investigation of the farm and found a field of marihuana over a mile from petitioner’s home.
Petitioner was arrested and indicted for “manufacturing” a “controlled substance.” 21 U.S.C. § 841(a)(1). After a pretrial hearing, the District Court suppressed evidence of the discovery of the marihuana field. Applying Katz v. United States, 389 U. S. 347, 389 U. S. 357 (1967), the court found that petitioner had a reasonable expectation that the field 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. App. to Pet. for Cert. in No. 82-15, pp. 23-24. Further, the court noted that the field itself is highly secluded: it is 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 Sixth Circuit, sitting en banc, reversed the District Court. 686 F.2d 356 (1982). The court concluded that Katz, upon which the District Court relied, had not impaired the vitality of the open fields doctrine of Hester. Rather, the open fields doctrine was entirely compatible with Katz’ 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 linked to privacy to warrant the Fourth Amendment’s protection. 686 F.2d at 360. We granted certiorari. 459 U.S. 1168 (1983).
No. 82-1273. After receiving an anonymous tip that marihuana was being grown in the woods behind respondent Thornton’s residence, two police officers entered the woods by a path between this residence and a neighboring house. They followed a footpath through the woods until they reached two marihuana 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 marihuana. On the basis of this evidence, respondent was arrested 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 marihuana patches evinced a reasonable expectation of privacy. Therefore, the court held, the open fields doctrine did not apply.
The Maine Supreme Judicial Court affirmed. 453 A.2d 489 (1982). 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. at 493, 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. Id. at 495. In this case, the officers had trespassed upon defendant’s property, and the respondent had made every effort to conceal his activity. We granted certiorari. 460 U.S. 1068 (1983).
II
The rule announced in Hester v. 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” within 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 secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures. . . .”
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 v. United States, 389 U. S. 347 (1967), the touchstone of Amendment analysis has been the question whether a person has a “constitutionally protected reasonable expectation of privacy.” Id. at 389 U. S. 360 (Harlan, J., concurring). The Amendment does not protect the merely subjective expectation of privacy, but only those “expectation[s] that society is prepared to recognize as reasonable.'” Id. at 389 U. S. 361. See also Smith v. Maryland, 442 U. S. 735, 442 U. S. 740-741 (1979).
No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. See Rakas v. Illinois, 439 U. S. 128, 439 U. S. 152-153 (1978) (POWELL, J., concurring). In assessing the degree to which a search infringes upon individual privacy, the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment, e.g., United States v. Chadwick, 433 U. S. 1, 433 U. S. 7-8 (1977), the uses to which the individual has put a location, e.g., Jones v. United States, 362 U. S. 257, 362 U. S. 265 (1960), and our societal understanding that certain areas deserve the most scrupulous protection from government invasion, e.g., Payton v. New York, 445 U. S. 573 (1980). These factors are equally relevant to determining whether the government’s intrusion upon open fields without a warrant or probable cause violates reasonable expectations of privacy, and is therefore a search proscribed by the Amendment.
In this light, the rule of Hester v. United States, supra, that we reaffirm today, may be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. See also Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U. S. 861, 416 U. S. 865 (1974). 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.” Payton v. New York, supra, at 445 U. S. 601. [Footnote 8] See also Silverman v. United States, 365 U. S. 505, 365 U. S. 511 (1961); United States v. United States District Court, 407 U. S. 297, 407 U. S. 313 (1972).
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.” The historical underpinnings of the open fields doctrine also demonstrate that the doctrine is consistent with respect for “reasonable expectations of privacy.” As Justice Holmes, writing for the Court, observed in Hester, 265 U.S. at 265 U. S. 59, the common law distinguished “open fields” from the “curtilage,” the land immediately surrounding and associated with the home.See 4 W. Blackstone, Commentaries *225. The distinction implies that only the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home. At common law, the curtilage is the area to which extends the intimate activity associated with the “sanctity of a man’s home and the privacies of life,” Boyd v. United States,116 U. S. 616, 116 U. S. 630 (1886), and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. See, e.g., United States v. Van Dyke, 643 F.2d 992, 993-994 (CA4 1981); United States v. Williams, 581 F.2d 451, 453 (CA5 1978); Care v. United States, 231 F.2d 22, 25 (CA10), cert. denied, 351 U.S. 932 (1956). Conversely, the common law implies, as we reaffirm today, that no expectation of privacy legitimately attaches to open fields. We conclude, from the text of the Fourth Amendment and from the historical and contemporary understanding of its purposes, that an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers.
Certainly the Framers did not intend that the Fourth Amendment should shelter criminal activity wherever persons with criminal intent choose to erect barriers and post “No Trespassing” signs. The common law conception of the “curtilage” has served this function.
The law of trespass recognizes the interest in possession and control of one’s property, and for that reason permits exclusion of unwanted intruders. But it does not follow that the right to exclude conferred by trespass law embodies a privacy interest also protected by the Fourth Amendment. To the contrary, the common law of trespass furthers a range of interests that have nothing to do with privacy, and that would not be served by applying the strictures of trespass law to public officers. Criminal laws against trespass are prophylactic: they protect against intruders who poach, steal livestock and crops, or vandalize property. And the civil action of trespass serves the important function of authorizing an owner to defeat claims of prescription by asserting his own title. See, e.g., O. Holmes, The Common Law 98-100, 244-246 (1881). In any event, unlicensed use of property by others is presumptively unjustified, as anyone who wishes to use the property is free to bargain for the right to do so with the property owner, cf. R. Posner, Economic Analysis of Law 10-13, 21 (1973). For these reasons, the law of trespass confers protections from intrusion by others far broader than those required by Fourth Amendment interests.
