Open-fields doctrine: Difference between revisions

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{{short description|U.S.American legal rule allowing warrantless searches of private property not near houses}}

{{other uses|Open-field (disambiguation)}}

{{short description|U.S. legal rule allowing warrantless searches of private property not near houses}}

[[File:U.S. 30 in Center Township.jpg|right|thumb|Open fields near [[Lisbon, Ohio]].|alt=Rolling countryside with fields, some cultivated, others not. There is a small house at the left center.]]

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]]. 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."<ref>''[[Black's Law Dictionary]]'' (9th ed. 2009), open-fields doctrine</ref>

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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."<ref>''[[United States v. Dunn]]'', {{Ussc|480|294|1987|pin=300}}.</ref> 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."<ref>''Dunn'', 480 U.S. at 301.</ref> 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.<ref>''[[https://web.archive.org/web/20230608152900/https://casetext.com/case/us-v-gooch-7 United States v. Gooch]]'', 6 F.3d 673 (9th Cir. 1993).</ref><ref>''[[https://scholar.google.com/scholar_case?case=17867362683417409777&hl=en&as_sdt=6&as_vis=1&oi=scholarr LaDuke v. Nelson]]'', 762 F.2d 1318 (9th Cir. 1985)'</ref><ref>''[[https://web.archive.org/web/20230608152859/https://casetext.com/case/laduke-v-castillo LaDuke v. Castillo]]'', 455 F.Supp. (E.D. Wash. 1978).</ref>

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).<ref>''[[https://web.archive.org/web/20230608152858/https://casetext.com/case/us-v-hatch-13 U.S. v. Hatch]]'', 931 F.2d 1478 (11th Cir.), cert. denied, 502 U.S. 883 (1991).</ref>

==Rejections of doctrine by state courts==

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Since ''Oliver'', the highest courts of [[Montana]], [[New York (state)|New York]], [[Oregon]] and [[Vermont]], as well as a [[Washington (state)|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 [[boundary (real estate)|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 Bradley (judge)|Rebecca Bradley]] of [[Wisconsin Supreme Court|that state's Supreme Court]] was highly critical of it.<ref name="State v. Stietz">{{cite court |litigants=State v. Stietz|vol=895|reporter=[[North Western Reporter|N.W. 2d]]|opinion=796|pinpoint=812–815|court=[[Wisconsin Supreme Court|Wisc.]]|date=2017|pinpoint=812–815|url=https://scholar.google.com/scholar_case?case=15612653012475974548|access-date=September 17, 2019}}</ref>

===''State v. Dixson''===

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|name = State v. Dixson

|court = [[Oregon Supreme Court]]

|image = Seal of the Supreme Court of Oregon.png

|imagesize =

|imagelink =

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|caption =

|full name = State of Oregon v. Theresa Dixson, Jeffrey Digby and Lorin Lou Dixson

|date decided = {{start date|1988|12|20|df=us}}

|citations = 766 [[Pacific Reporter|P.2d]] 1015, 307 Or. 195

|transcripts =

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|name = State v. Kirchoff

|court = [[Vermont Supreme Court]]

|date decided = {{start date|1991|01|25|df=us}}

|citations = 156 Vt. 1, 587 [[Atlantic Reporter|A.2d]] 988

|judges = Allen, Peck, Dooley, Morse, Springer (specially assigned)

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There was no constitutional problem presented by the case, Peck said; the state's existing laws were enough protection for landowners.

{{quoteblockquote|For all realistic and practical purposes, the sole beneficiary of today's decision is the owner of open fields who conducts criminal activity thereon in defiance of the law. In short, the majority has given birth to a right of privacy to commit crime. If our marijuana farmers have the good sense I think they have, they will soon be busy as little bees putting up no-trespassing signs, while laughing up their sleeves at the gullible naivete of the cooperative majority.}}

The insistence that police needed a warrant to search any posted or fenced land due to the state's trespass laws was, Peck wrote, "like saying a police cruiser, in responding to an emergency call, may not exceed the speed limit because there are laws against speeding."<ref name="Kirchoff 999–1008" />

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Peck also called the majority's holding that the search was unconstitutional "a grossly unfair example of police-bashing", that he himself took personally.

{{quoteblockquote|The police are not psychic. At the time they entered the open fields portion of defendant's property, they had no way of knowing or of anticipating that this Court would follow, sheep-like, the decision of one of the most activist-oriented among the state courts,{{efn|''Dixson''}} or that we would reject a contrary decision by the high court of a state which borders us and is far more similar to us in size and other characteristics than the former{{efn|Peck was referring to ''State v. Linder'', in which the [[New Hampshire Supreme Court|Supreme Court of neighboring New Hampshire]] had five years previously held the open-fields doctrine applied in that state.<ref name="State v. Linder">{{cite court|litigants=State v. Linder|vol=128|reporter=N.H.|opinion=66|court=[[New Hampshire Supreme Court|N.H.]]|date=1986|url=https://scholar.google.com/scholar_case?case=2487942038615680423|access-date=October 3, 2019}}</ref>}} ... I would remind the majority, as it sheds its tears for the defendant, that the entry was not arbitrary. It was not an afternoon of sport for the police, on the off-chance they might just happen to stumble on marijuana or some other contraband, in much the same spirit that we hunt deer and other game. The entry was undertaken in reliance on a "tip"; with every reason to believe the search was legitimate, and it was done in good faith.}} Peck feared that the majority's decision would unnecessarily handicap the state's police in preventing crime. He accused it of "cho[osing] the possible prestige with which it may be honored by law reviews and other constitutional activists among the courts, and legal writers, to a recognition of the rights of the individual inhabitants of the State of Vermont." At the very least, the majority should have held the issue to be decided on a case-by-case basis rather than establishing a blanket rule.<ref name="Kirchoff 999–1008" />

===''People v. Scott''===

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|court = [[New York Court of Appeals]]

|full name = People of the State of New York v. Guy Scott

|date decided = {{start date|1992|04|02|df=us}}

|citations = 79 N.Y.2d 474

|judges = Kaye, Alexander, Titone, Hancock, Bellacosa, Wachtler, Simone

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Prior to 1938 New York, Hancock noted, had restricted searches and seizures only at the statutory level. When the state constitution was amended that year, in addition to language similar to that of the Fourth Amendment that had long been in the statute, it included a provision explicitly including telecommunications under the same warrant requirements, a reaction to the U.S. Supreme Court's ''[[Olmstead v. United States|Olmstead]]'' case a decade earlier, which had held that police did not need a warrant for [[wiretap]]ping telephones since that took place far from the property of those communicating over them. Therefore, according to Hancock, it did not follow that the state constitution should or could be interpreted in the same way the ''Oliver'' Court had interpreted the federal constitution.<ref name="Scott II 486" />

[[File:Posted sign in front of cornfield, Red Hook, NY.jpg|thumb|right|A posted cornfield in New York]]

Hancock turned to the second part of the ''Katz'' test: whether Scott's interest in his privacy asserted by posting his property was objectively reasonable. The ''Oliver'' majority had dismissed the idea, pointing instead to social consensus as where to look, but, the judge wrote:

{{quoteblockquote|We believe that under the law of this State the citizens are entitled to more protection. A constitutional rule which permits State agents to invade private lands for no reason at all — without permission and in outright disregard of the owner's efforts to maintain privacy by fencing or posting signs — is one that we cannot accept as adequately preserving fundamental rights of New York citizens.<ref name="Scott II 486" />}}

While Hancock conceded that property rights do not automatically create a privacy interest, his review of the state's statutory and case law convinced him that, in interpreting both state and federal law on this issue, the state's courts had constantly followed the ''Katz'' concept of rooting privacy in the person, rather than property. He also shared Marshall's observation that the ''Oliver'' majority had suggested that a reasonable expectation of privacy depended on what the landowner intended to shield from view by posting or fencing the land:

{{quoteblockquote|The reasoning of the ... majority, seems, to be this, in effect: that law-abiding persons should have nothing to hide on their property and, thus, there can be no reasonable objection to the State's unpermitted entry on posted or fenced land to conduct a general search for contraband. But this presupposes the ideal of a conforming society, a concept which seems foreign to New York's tradition of tolerance of the unconventional and of what may appear bizarre or even offensive.<ref name="Scott II 488–89">''Scott II'', at 488–89</ref>}}

Judge Joseph Bellacosa's dissent, addressing not only ''Scott'' but a companion case in which the court had ruled evidence gathered in warrantless administrative searches of businesses to be inadmissible, focused largely on what he considered to be the majority's faulty reasoning for departing from ''Oliver''. In a similar case of a rural marijuana grower four years earlier,{{efn|{{cite court|litigants=People v. Reynolds|vol=71|reporter=N.Y.2d|opinion=552|court=[[New York Court of Appeals|N.Y.]]|date=1988|url=https://scholar.google.com/scholar_case?case=3911316398566985157|access-date=September 20, 2019}}}} he noted, the court had accepted evidence gathered by an aerial search and declined to consider the same privacy issues that defendant had raised.<ref name="Scott II 506–19">''Scott II'', at 506–19</ref> The majority responded that in that case she had not raised the issue of her land being posted.<ref name="Scott II 480">''Scott II'', at 480</ref>

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|court = [[Washington Court of Appeals]], Division Two

|full name = State of Washington v. Tamara Sue Johnson and James Raymond Johnson

|date decided = {{start date|1994|09|07|df=us}}

|citations = 75 Wn. App. 692, 879 P.2d 984

|judges = Alexander, Morgan and Houghton

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|court = [[Montana Supreme Court]]

|full name = State of Montana v. Bill Bullock and Eddie Peterson

|date decided = {{start date|1995|08|04|df=us}}

|citations = 901 [[Pacific Reporter|P.2d]] 61

|judges = Trieweiler, Turnage, Nelson, Gray, Hunt, Weber and Leaphart

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|court = [[Wisconsin Supreme Court]]

|full name = State v. Robert Joseph Stietz

|date decided = {{start date|2017|06|13|df=us}}

|citations = 895 [[North Western Reporter|N.W.2d]] 796, 375 Wis.2d 572, 2017 WI 58

|judges = Abrahamson, Grassl Bradley, Kelly, Roggensack, Ziegler, Gableman

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}}

{{cquote|... [I]mportant practical considerations suggest that the police should not be empowered to invade land closed to the public. In many parts of the country, landowners feel entitled to [[Second Amendment to the United States Constitution|use self-help]] in expelling trespassers from their posted property. There is thus a serious risk that police officers, making unannounced, warrantless searches of 'open fields,' will become involved in violent confrontations with irate landowners ...<ref name="Marshall Oliver dissent note 19">''[[Oliver v. United States]]'', {{ussc|466|170|195n19|1984}} [[Thurgood Marshall|Marshall]], J., dissenting</ref>}}

The scenario Justice [[Thurgood Marshall|Marshall]] feared in his ''Oliver'' dissent came to pass in [[Lafayette County, Wisconsin]], in 2012. Near sunset on the last Sunday of November, the last day of the state's firearm [[Deer hunting#State government regulation|deer season]], Robert Stietz, a cattle and mushroom farmer, went to patrol a detached {{convert|25|acre|ha|adj=on}} parcel of his land off [[Wisconsin Highway 81|state Highway 81]] for illegal hunters and vandals, both of which he had had problems with in the past. He carried both his rifle and a pistol, and drove to the property in his wife's sedan since he did not expect to be bringing a deer carcass home. For the same reason, he wore camouflage and no [[blaze orange]].<ref name="Stietz 803–804">{{cite court|litigants=State v. Stietz|vol=895|reporter=[[North Western Reporter|N.W.2d]]|opinion=796|pin=803–804|court=[[Wisconsin Supreme Court|Wisc.]]|date=2017|url=https://scholar.google.com/scholar_case?case=15612653012475974548|access-date=September 27, 2019}}</ref>

At the same time, unbeknownst to Stietz, two game wardens with the state's [[Wisconsin Department of Natural Resources|Department of Natural Resources]] were patrolling the area in their vehicle, looking for hunters who might be trying to take a deer after the official end of the season, [[civil twilight|20 minutes after sunset]], which that day was 4:45&nbsp;p.m. Just before 5, they found the sedan parked alongside the highway. In it they observed an open and empty gun case, a bottle of scent-killing spray and a camouflage [[Tree stand|tree seat]], all of which led them to deduce that the occupant of the car was probably hunting. The car's registration came back to Stietz when they checked it on their vehicle's computer.<ref name="Stietz 803–804" />

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Stietz appealed to the [[Wisconsin Supreme Court]]. It accepted the case in late 2016 and heard oral arguments early the next year. In June 2017, by a 4–2 margin,{{efn|Justice [[Ann Walsh Bradley]] did not participate.<ref name="Stietz at 808">''Stietz'' at 808</ref>}} the court held that the trial court's denial of Stietz's requested self-defense instruction had deprived him of a factual credible argument that the jury could have believed and reversed and [[Remand (court procedure)|remanded]] the appeals court.<ref name="Stietz at 808" />

Justice [[Shirley Abrahamson]]'s majority opinion declined to address the proposed trespass instruction since she believed Stietz might well prevail on retrial with just the self-defense instruction. But the state had raised the open-fields doctrine in its briefs on the case, which led Justice [[Rebecca Bradley (judge)|Rebecca Grassl Bradley]] to write a [[concurring opinion|concurrence]], joined in its entirety by Justice [[Daniel Kelly (Wisconsin judge)|Daniel Kelly]] and partially by Chief Justice [[Patience D. Roggensack]],<ref name="Stietz 814–16">''Stietz'', 814–16</ref>{{efn|Roggensack did not join Part II of Bradley's concurrence, which dealt with the open-fields doctrine.<ref name="Stietz 814–16" />}} which argued that Stietz had a constitutional right to raise the trespass issue and that not allowing him to do so violated that right. She also was sharply critical of the open-fields doctrine as used to justify the evidence behind the arrest.<ref name="Stietz 814–16" />

In her arguments that the trespass instruction should have been permitted, Bradley had noted that at oral argument the state was unable to cite any statutory authority for the wardens' presence on Stietz's property,{{efn|Wisconsin law permits wardens to enter private property without permission or reasonable suspicion only to collect animal carcasses and prevent the spread of disease, none were present or argued to be. The state also argued that the wardens were executing a [[Terry stop]], but those can only be constitutional on public land}} nor evidence that they had Stietz's permission. She did not believe the parked car constituted reasonable suspicion of illegal hunting that would have allowed them to enter the property, either. And he had put up clear signals—the posting, gating and fencing of the property—that no one was to come on that property without his permission.<ref name="Stietz 810–14">''Stietz'', 810–14</ref>

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Following the decision, [[Wisconsin State Assembly|Assemblyman]] [[Adam Jarchow]] and [[Wisconsin State Senate|State Senator]] [[Dave Craig]] introduced a bill that would require that DNR wardens have reasonable suspicion of a law being broken before entering private property without the owner's consent. "Preventing poaching is somehow so important we allow DNR incursions on private property for any reason under the sun or no reason at all", Jarchow complained. "[S]omething is seriously out of whack here."<ref name="AB 411 story">{{cite news|author=[[Associated Press]]|title=Bill would restrict Wisconsin wardens on private property|url=https://www.outdoornews.com/2017/07/21/bill-restrict-wisconsin-wardens-private-property/|newspaper=Wisconsin Outdoor News|date=July 21, 2017|access-date=October 1, 2019}}</ref> It was vigorously opposed by [[wildlife conservation]] organizations such as the [[League of Conservation Voters]] and the state [[Sierra Club]] chapter, who feared that it would severely hamper the wardens' ability to do their jobs,<ref name="MJS column">{{cite news|last=Smith|first=Paul A.|title=Smith: Strong opposition to bill that would curtail warden authority|url=https://www.jsonline.com/story/sports/columnists/paul-smith/2017/07/19/smith-strong-opposition-bill-would-curtail-warden-authority/490231001/|newspaper=[[Milwaukee Journal Sentinel]]|date=July 19, 2017|access-date=October 1, 2019}}</ref> and was never brought to a vote.<ref name="AB 411 history">{{cite web|title=Assembly Bill 411|url=https://docs.legis.wisconsin.gov/2017/proposals/ab411|publisher=[[Wisconsin State Legislature]]|access-date=October 1, 2019}}</ref>

In his 2018 retrial, Stietz pleaded guiltyno contest to a single count of restricting or obstructing an officer and was sentenced to [[time served]]. He filed suit in 2019 against the two wardens alleging they violated his rights under the [[Second Amendment to the United States Constitution|Second]] and Fourth amendments; it is currently pending in [[United States District Court for the Western District of Wisconsin|federal court for the Western District of Wisconsin]].<ref name="Telegraph Herald story">{{cite news|last=Goldstein|first=Bennett|title=Gratiot man's lawsuit against Wisconsin DNR moves to federal court|url=https://www.telegraphherald.com/news/tri-state/article_ee1dbf04-fe72-5f1d-a0d0-66892aefa090.html|newspaper=[[Telegraph Herald]]|___location=[[Dubuque, Iowa]]|date=February 4, 2019|access-date=October 1, 2019}}</ref>

== See also ==