Open-fields doctrine: Difference between revisions

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

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

{{short description|N.Z. 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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== Distinguishing open fields from curtilage ==

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, is 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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|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