Lead Opinion
delivered the opinion of the Court.
We granted the Government’s petition for certiorari to decide whether the area near a barn, located approximately 50 yards from a fence surrounding a ranch house, is, for Fourth Amendment purposes, within the curtilage of the house. The Court of Appeals for the Fifth Circuit held that the barn lay within the house’s curtilage, and that the District Court should have suppressed certain evidence obtained as a result of law enforcement officials’ intrusion onto the area immediately surrounding the barn.
I
Respondent Ronald Dale Dunn and a codefendant, Robert Lyle Carpenter, were convicted by a jury of conspiring to manufacture phenylacetone and amphetamine, and to possess amphetamine with intent to distribute, in violation of 21 U. S. C. § 846. Respondent was also convicted of manufacturing these two controlled substances and possessing amphetamine with intent to distribute. The events giving rise to respondent’s apprehension and conviction began in 1980 when agents from the Drug Enforcement Administration (DEA) discovered that Carpenter had purchased large quantities of chemicals and equipment used in the manufacture of amphetamine and phenylacetone. DEA agents obtained warrants from a Texas state judge authorizing installation of miniature electronic transmitter tracking devices, or “beepers,” in an electric hot plate stirrer, a drum of acetic anhy-dride, and a container holding phenylacetic acid, a precursor to phenylacetone. All of these items had been ordered by
Respondent’s ranch comprised approximately 198 acres and was completely encircled by a perimeter fence. The property also contained several interior fences, constructed mainly of posts and multiple strands of barbed wire. The ranch residence was situated 14 mile from a public road. A fence encircled the residence and a nearby small greenhouse. Two barns were located approximately 50 yards from this fence. The front of the larger of the two barns was enclosed by a wooden fence and had an open overhang. Locked, waist-high gates barred entry into the barn proper, and netting material stretched from the ceiling to the top of the wooden gates.
On the evening of November 5, 1980, law enforcement officials made a warrantless entry onto respondent’s ranch property. A DEA agent accompanied by an officer from the Houston Police Department crossed over the perimeter fence and one interior fence. Standing approximately midway between the residence and the barns, the DEA agent smelled what he believed to be phenylacetic acid, the odor coming from the direction of the barns. The officers approached the smaller of the barns — crossing over a barbed wire fence— and, looking into the bam, observed only empty boxes. The officers then proceeded to the larger barn, crossing another
On November 6, 1980, at 8:30 p.m., a Federal Magistrate issued a warrant authorizing a search of respondent’s ranch. DEA agents and state law enforcement officials executed the warrant on November 8, 1980.
The District Court denied respondent’s motion to suppress all evidence seized pursuant to the warrant and respondent and Carpenter were convicted. In a decision rendered in 1982, the Court of Appeals reversed respondent’s conviction. United States v. Dunn,
II
The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself. The concept plays a part, however, in interpreting the reach of the Fourth Amendment. Hester v. United States,
We reaffirmed the holding of Hester in Oliver v. United States, supra. There, we recognized that the 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.
Second. It is also significant that respondent’s barn did not lie within the area surrounding the house that was enclosed by a fence. We noted in Oliver, supra, that “for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage — as the area around the home to which the activity of home life extends —is a familiar one easily understood from our daily experience.”
Third. It is especially significant that the law enforcement officials possessed objective data indicating that the barn was not being used for intimate activities of the home. The aerial photographs showed that the truck Carpenter had been driving that contained the container of phenylacetic acid was backed up to the barn, “apparently,” in the words of the Court of Appeals, “for the unloading of its contents.”
Fourth. Respondent did little to protect the barn area from observation by those standing in the open fields. Nothing in the record suggests that the various interior fences on respondent’s property had any function other than that of the typical ranch fence; the fences were designed and constructed to corral livestock, not to prevent persons from observing what lay inside the enclosed areas.
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Respondent submits an alternative basis for affirming the judgment below, one that was presented to but ultimately not relied upon by the Court of Appeals. Respondent asserts that he possessed an expectation of privacy, independent from his home’s curtilage, in the barn and its contents, because the barn is an essential part of his business. Brief for Respondent 9. Respondent overlooks the significance of Oliver v. United States,
We may accept, for the sake of argument, respondent’s submission that his barn enjoyed Fourth Amendment protection and could not be entered and its contents seized without a warrant. But it does not follow on the record before us that the officers’ conduct and the ensuing search and seizure violated the Constitution. Oliver reaffirmed the precept, established in Hester, that an open field is neither a “house” nor an “effect,” and, therefore, “the government’s intrusion upon the open fields is not one of those ‘unreasonable searches’
Under Oliver and Hester, there is no constitutional difference between police observations conducted while in a public place and while standing in the open fields. Similarly, the fact that the objects observed by the officers lay within an area that we have assumed, but not decided, was protected by the Fourth Amendment does not affect our conclusion. Last Term, in California v. Ciraolo,
The officers lawfully viewed the interior of respondent’s barn, and their observations were properly considered by the Magistrate in issuing a search warrant for respondent’s premises. Accordingly, the judgment of the Court of Appeals is reversed.
It is so ordered.
Notes
In denying respondent’s motion to suppress all evidence obtained as a result of the search warrant, the District Court Judge stated that the law enforcement officials, during their incursions onto respondent’s property, “did not invade the premises, that is, the houses or the barns . . . .” Tr. 216. The Court of Appeals did not disturb this finding. At the suppression hearing, the DEA agent described the officers’ approach to the large barn on November 5:
“A. We came back around, we crossed a small wooden type fence here, which put us right underneath a type of a tin overhang and in front of us was a wooden locked gate ....
“Q. How high was that gate?
“A. It probably came up to my waist, estimated.
“Q. Was that gate open or shut?
“A. It was shut and it was locked.
“Q. Was there anything above that gate?
“A. Yes, there was.
“Q. What was that?
“A. A fish netting, kind of a netting, that was hanging from the ceiling down to the gate.
“Q. Did you cross over that gate and go into the barn?
“A. No.
“Q. Did you stand outside the gate?
“A. We stood right at the gate.”
App. 17-18.
Prior to the actual search of the barn and ranch house, the agents entered the property for further observations.
In the section of Blaekstone’s Commentaries which the Court cited, Blackstone described the elements of common-law burglary, and elaborated on the element that a breaking occur in a mansion or dwelling house. In defining the terms “mansion or dwelling-house,” Blackstone wrote that “no distant barn, warehouse, or the like are under the same privileges, nor looked upon as a man’s castle of defence . . . .” 4 W. Blackstone, Commentaries *225. Blackstone observed, however, that “if the barn, stable, or warehouse, be parcel of the mansion-house, and within the same common fence, though not under the same roof or contiguous, a burglary may be committed therein; for the capital house protects and privileges all its branches and appurtenances, if within the curtilage or homestall.” Ibid.
We decline the Government’s invitation to adopt a “bright-line rule” that “the curtilage should extend no farther than the nearest fence surrounding a fenced house.” Brief for United States 14. Fencing configurations are important factors in defining the curtilage, see infra, at 302, but, as we emphasize above, the primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home. Application of the Government’s “first fence rule” might well lead to diminished Fourth Amendment protection in those cases where a structure lying outside a home’s enclosing fence was used for such domestic activities. And, in those cases where a house is situated on a large parcel of property and has no nearby enclosing fence, the Government’s rule would serve no utility; a court would still be required to assess the various factors outlined above to define the extent of the curtilage.
Dissenting Opinion
with whom Justice Marshall joins, dissenting.
The Government agents’ intrusions upon Ronald Dunn’s privacy and property violated the Fourth Amendment for
I — I
I briefly recount the relevant facts.
Respondent’s ranch of 198 acres is encircled by a perimeter fence. The residence and its outbuildings are located in a clearing surrounded by woods, one-half mile from a road, down a chained, locked driveway. Neither the farmhouse nor its outbuildings are visible from the public road or from the fence that encircles the entire property. Once inside this perimeter fence, it is necessary to cross at least one more “substantial” fence before approaching Dunn’s farmhouse or either of his two barns. United States v. Dunn, 674. F. 2d 1093, 1100 (CA5 1982).
The front of the barn involved here is enclosed by a wooden fence. Its back and sides
“were composed of brick, metal siding, and large metal sliding doors and were completely enclosed. The front of the barn was partially composed of a wooden wall with windows. The remainder was enclosed by waist-high wood slatting and wooden gates. At the time of [the] agent[’s] visits . . . , the top half of the front of the barn was covered by a fishnet type material from the ceiling down to the top of the locked wooden gates. To see inside the barn it was necessary to stand immediately next to the netting [under the barn’s overhang]. From as little as a few feet distant, visibility into the barn was obscured by the netting and slatting.”766 F. 2d 880 , 883 (CA5 1985).
II
A
In Oliver v. United States,
The Court states that curtilage questions are often resolved through evaluation of 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.” Ante, at 301. The Court applies this test and concludes that Dunn’s barn and barnyard were not within the curtilage of his dwelling. This conclusion overlooks the role a barn plays in rural life and ignores extensive authority holding that a barn, when clustered with other outbuildings near the residence, is part of the curtilage.
State and federal courts have long recognized that a barn, like many other outbuildings, is “a domestic building constituting an integral part of that group of structures making up the farm home.” Walker v. United States,
The overwhelming majority of state courts have consistently held that barns are included within the curtilage of a farmhouse. See, e. g., Brown v. Oklahoma City,
Federal courts, too, have held that barns, like other rural outbuildings, lie within the curtilage of the farmhouse. See United States v. Berrong,
Thus, case law demonstrates that a barn is an integral part of a farm home and therefore lies within the curtilage. The Court’s opinion provides no justification for its indifference to the weight of state and federal precedent.
The above-cited authority also reveals the infirmities in the Court’s application of its four-part test. First, the distance between the house and the barn does not militate against the barn or barnyard’s presence in the curtilage. Many of the cases cited involve a barn separated from a residence by a distance in excess of 60 yards. Second, the cases make evident that the configuration of fences is not determinative of the status of an outbuilding. Here, where the barn was connected to the house by a “well walked” and a “well driven”
The third factor in the test — the nature of the uses to which the area is put — has been badly misunderstood and misapplied by the Court. The Court reasons that, because the barn and barnyard were not actually in domestic use, they were not within the curtilage. This reveals a misunderstanding of the level of generality at which the constitutional inquiry must proceed and is flatly inconsistent with the Court’s analysis in Oliver.
In Oliver, the Court held that, as a general matter, the open fields “are unlikely to provide the setting for activities whose privacy is sought to be protected by the Fourth Amendment.”
Moreover, the discovery that Dunn’s barn was actually used as a drug laboratory is irrelevant to the question whether the area is typically in domestic use. No one would contend that, absent exigent circumstances, the police could intrude upon a home without a warrant to search for a drug
Even accepting that courts should do a case-by-case inquiry regarding the use of buildings within the curtilage, the Court’s analysis is faulty. The Court finds it significant that, because of the strong odor and the noise of a motor emanating from the barn, the officers knew that the barn was not in domestic use. But these Government agents were already within the curtilage when they detected the odor of phenylacetic acid. They were wandering about in the area between the barns and the farmhouse, an area that is itself part of the curtilage. The Court cannot abrogate the general rule that a barn is in the curtilage with evidence gathered after the intrusion has occurred.
Finally, neither the smell of the chemicals nor the sound of the motor running would remove the protection of the Fourth Amendment from an otherwise protected structure. A barn, like a home, may simultaneously be put to domestic and nondomestic uses, even the manufacture of drugs. Dual use does not strip a home or any building within the curtilage of Fourth Amendment protection. As this Court said in Taylor v. United States,
With regard to the fourth factor of the curtilage test, I find astounding the Court’s conclusion that “[Respondent did little to protect the barn area from observation by those standing in the open fields.” Ante, at 303. Initially, I note that the fenced area immediately adjacent to the barn in this case is not part of the open fields, but is instead part of the curti-lage and an area in which Dunn had a reasonable expectation of privacy. See infra, at 314-319. Second, Dunn in fact took elaborate measures to ensure his privacy. He locked his driveway, fenced in his barn, and covered its open end with a locked gate and fishnetting. The Court of Appeals found that “[t]o see inside the barn it was necessary to stand immediately next to the netting. From as little as a few feet distant, visibility into the barn was obscured by the netting and slatting.”
The Court of Appeals correctly concluded that Dunn’s barn and barnyard were within the curtilage of the farmhouse. This Court’s reversal of that determination reflects a fundamental misunderstanding of the typical role of a barn in rural domestic life.
Today’s decision has an unforeseen consequence. In narrowing the meaning given to the concept of curtilage, the Court also narrows the scope of searches permissible under a warrant authorizing a search of building premises. Police officers often proceed as if a warrant that authorizes a search of the premises or the dwelling also authorizes a search of any outbuildings (such as garages, barns, sheds, smokehouses) because such buildings are commonly deemed within the cur-tilage. See Gumina v. State,
Ill
Even if Dunn’s barn were not within the curtilage of his farmhouse, his reasonable expectation of privacy in the barnyard would bring the Fourth Amendment into play.
It is well established that the Fourth Amendment protects a privacy interest in commercial premises. See Oliver v. United States,
The Court assumes that respondent possessed an expectation of privacy in his barn and its contents because the barn was an essential part of his business. This assumption is
“A barn is as much a part of a rancher’s place of business as a warehouse or outbuilding is part of an urban merchant’s place of business. It is and ought to be constitutionally protected from warrantless searches if the owner or occupier takes reasonable steps to effect privacy.”766 F. 2d, at 885 .
This established, we inquire whether the owner of a commercial building has a reasonable expectation of privacy in the area surrounding or adjacent to that building.
Second, “the expectation [must] be one that society is prepared to recognize as ‘reasonable.’” Katz, supra, at 361 (Harlan, J., concurring). For a homeowner to preserve Fourth Amendment protection in the area immediately surrounding the residence, he or she must not conduct an activity or leave an item in the plain view of those outside that area. The occupant of a commercial building must take the additional step of affirmatively barring the public from the area because a business operator has a reasonable expectation of privacy only in those areas from which the public has been excluded.
“[application of the Katz justified-expectation-of-privacy test . . . requires consideration of where the police were at the time of surveillance and how the surveillance was conducted. If police using the naked eye or ear are able to see or hear while located on adjoining*317 property or even on property of the business which is readily accessible to the general public, this is not a search. . . .
“On the other hand, if the police engage in a much more intense form of surveillance, especially from places not ordinarily used by the public, this is a search under Katz.” 1 W. LaFave, Search and Seizure §2.4 (b), pp. 433-434 (2d ed. 1987) (emphasis added; footnotes omitted).9
See Norman v. State,
The Court applied this distinction between protected commercial premises (from which the public is excluded) and unprotected commercial premises (to which the public has access) in its analysis last Term in Dow Chemical Co. v. United States,
Looking into a building from a vantage point inaccessible to the public — here by climbing over the “substantial” wooden fence enclosing the front of the barn to intrude on Dunn’s farmyard — is an unacceptable invasion of a reasonable privacy interest. When, as here, the public is excluded from an area immediately surrounding or adjacent to a business structure, that area is not — contrary to the Court’s position-part of the open fields. “[Ojccupants of business and commercial premises should not be put to the choice of taking extraordinary methods of sealing off those premises or else submitting to unrestrained police surveillance.” 1 LaFave, supra, at 434.
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The Fourth Amendment prohibits police activity which, if left unrestricted, would jeopardize individuals’ sense of security or would too heavily burden those who wished to guard their privacy.
Cf. United States v. Mullin,
In addition, the sound of a motor running is not inherently inconsistent with the use of the barn for domestic purposes. Household activities on a farm may differ from those conducted in an urban apartment, but they retain their domestic character. A barn is an integral part of a particular way of life, and its many standard uses are part of a distinctive domestic economy.
This case bears out the prediction made in Oliver v. United States,
See also Marshall v. Barlow’s, Inc.,
See also Walker v. United States,
The usual manner of deciding whether intrusions on land near a dwelling are reasonable is to determine whether an officer is within the curtilage or in the open fields. It is plain that the open fields doctrine is not properly applied to land which has been developed. See Oliver,
The Court has noted that in some situations the absence of any subjective expectation of privacy would not defeat an individual’s Fourth Amendment claim. See Smith v. Maryland,
This requirement comports with the Court’s usual view of the relationship between commercial premises and the Fourth Amendment. The Government must obtain a search warrant only when it wishes to search those areas of commercial premises from which the public has been excluded. See See v. City of Seattle, supra, at 545. See also Comment,
For example, in Commonwealth v. Soychak,
Cf. Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp.,
It matters little if this protected area is denominated a “business curti-lage” or if the Court holds that the business occupant has a reasonable expectation of privacy there. An area was historically considered part of the curtilage only if used for domestic purposes because the Fourth Amendment was thought to protect only the “ ‘sanctity of a man’s home and the privacies of life.’” Oliver,
In United States v. Swart,
When a rural business structure such as a barn is also located within the curtilage of a farm residence, there is plainly a substantial likelihood that the business enterprise is also closely related to domestic life. This fact compounds the need for the court to protect the individual’s expectation of privacy in the business structure. See United States v. Broadhurst,
As Professor Amsterdam has observed, “[t]he question is not whether you or I must draw the blinds before we commit a crime. It is whether you and I must discipline ourselves to draw the blinds every time we enter a room, under pain of surveillance if we do not.” Amsterdam, supra n. 7, at 403.
Concurrence Opinion
concurring in part.
I join Justice White’s opinion with the exception of the paragraph in Part II headed “Third.” It does not seem to me “especially significant that the law enforcement officials possessed objective data indicating that the barn was not being used for intimate activities of the home.” Ante, at 302. What is significant is that the barn was not being so used, whether or not the law enforcement officials knew it. The officers’ perceptions might be relevant to whether intrusion upon curtilage was nevertheless reasonable, but they are no more relevant to whether the barn was curtilage than to whether the house was a house.