Lead Opinion
In Hester v. United States,
In the case before us, the appellee, Oliver, is a retired farmer who lives on his farm in the Western District of Kentucky and leases parts of it to others. In July, 1980, narcotics agents of the Kentucky State Police received an anonymous tip that marijuana was being raised on the farm. They had heard before rumors to this effect and so they decided to investigate.
The agents approached Oliver’s farm on Kentucky Highway 379 and turned off on a road on Oliver’s land that leads past his house and then past a barn near the back end of the farm. A short distance beyond the house the agents encountered a locked gate that blocked the road, and there they parked their car and walked around the gate on a path adjacent to it. There were “No Trespassing” signs as one turned off Highway 379 and along the road leading to the house and another at this gate. The agents on foot continued down this road to the barn, which was located about three-fourths of a mile beyond the house. At the barn was a parked camper but no person was present and the agents continued further on this road. Shortly thereafter, someone appeared near the camper and called to the agents to come back, explaining that hunting was not allowed, at which time the agents started back to the camper, announcing that they were Kentucky State Police. When they got back to the camper, however, no one was there. The agents then resumed their investigation, which resulted in their finding two open fields of marijuana at the back end of the farm.
The Cumberland River bounds the farm just beyond these fields of marijuana. The marijuana could not be seen by anyone standing on land other than Oliver’s. These fields were located about one mile from Oliver’s house by road and almost that far in a direct line. The fields had been leased by Oliver to some strangers.
After Oliver’s arrest and indictment for knowingly and intentionally manufacturing marijuana, 21 U.S.C. § 841(a)(1) (1976) and 18 U.S.C. § 2 (1976), the district court upheld Oliver’s motion to suppress the marijuana evidence, relying on analysis it derived from Katz. The district court held that this search required a warrant because, under the circumstances presented here, Oliver had an expectation of privacy and the expectation was a reasonable one. The government then took this appeal. A panel of this court agreed with the analysis and conclusion of the district court and affirmed (
In Katz v. United States,
In the first place, it is apparent that the Court in Katz was called upon to consider application of the Fourth Amendment under circumstances that could not have been contemplated at the time the Amendment was formulated and adopted. As the opinion for the Court by Justice Stewart states: “To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.” Id. at 352,
A second reason why we conclude that Katz did not amend the existing open fields doctrine is that Katz itself recognizes the continuing validity of the Hester proposition that the Fourth Amendment does not protect an owner as to his open fields. In the opinion for the Court, Justice Stewart alludes to the fact that the parties to that litigation considered it to be common ground that, on the basis of Hester, an open field is outside the reach of the Fourth Amendment.
As the Court’s opinion states: “the Fourth Amendment protects people, not places.” The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a “place." My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, 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.” Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsidersare not “protected” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstancеs would be unreasonable. Cf. Hester v. United States, supra.
Id.
We conclude, therefore, that Katz does not require an ad hoc investigation of the circumstances to determine whether the owner of an open field had an expectation of privacy and whether the expectation was reasonable. Rather we conclude that under Hester and Katz any expectation of privacy that an owner might have with respect to his open field is not, as a matter of law, an expectation that society is prepared to recognize as reasonable.
We further point out, in support of our conclusion that the open fields doctrine as stated in Hester survived the Katz decision, that the Supreme Court has on several occasions since Katz referred to the Hester decision without indicating that its principle has been diluted. See, e.g., Rakas v. Illinois,
Finally, it was suggested at argument that, since these marijuana fields were not observable while standing on land other than Oliver’s, these fields were not “open fields” within the meaning of Hester and Hassell. It is clear, however, that the rule in these cases is meant to distinguish between curtilage and land outside the curtilage. See, e.g., United States v. Whitmore,
We believe that no privacy rights inhere and the Fourth Amendment does not protect an open field of marijuana. It would protect а person in an open field or a house built there but not the field itself. We do not understand what the concept is behind the dissenting view that some element of privacy attaches to an open field, a field empty of persons and empty of the houses, papers and effects of persons. The dissenting opinion does not suggest what that concept is or how privacy comes into play. The Fourth Amendment and other laws protecting privacy create the conditions and the context for many relationships based on intimacy, friendship and trust. These laws establish an environment in which individual emotional and mental processes can develop freely without surveillance or interference. The legal principles that protect privacy, therefore, do not protect the desert island, the mountain top or the open field — even one the owner has posted with a “no trespass” sign. The human relations that create the need for privacy do not ordinarily take place in these settings. The only significant interest at stake here — a property owner’s interest in excluding others from his possessions — is not sufficient alone to bring into play legal principles protecting privacy.
dissenting.
We respectfully dissent from the position taken by the Court in this very important case. Today our Court adopts a per se rule with respect to the open fields doctrine. This Court’s position is contrary to that of the First, Second, Fourth, Fifth, Seventh and Tenth Circuits who have rejected the per se rule in favor of a more reasonable and flexible rule similar to the rule set forth in this dissent. We also note that a majority of the state courts, including California, Florida, Illinois, Louisiana and Hawaii, have also rejected the per se rule. Therefore, our Court’s intransient position is difficult to understand.
Appellee Ray Edward Oliver was indicted and charged with manufacturing marijuana in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. At a pre-trial suppression hearing, the district court sustained Oliver’s motion to exclude evidence obtained from the warrantless search of his property. The Oliver property was fenced and posted with “No Trespassing” signs. The еvidence the government sought to admit consisted of marijuana discovered growing in a field on Oliver’s property. The marijuana was not visible from the public road or the land of Oliver’s neighbors.
On appeal, the government argued that a warrantless search of the land beyond the curtilage
The Court granted en banc consideration of this appeal to address the following two issues: 1) Whether a warrantless search beyond the curtilage may violate the Fourth Amendment; and 2) Whether a warrantless search conducted by the Kentucky State Police on posted land violated the landowner’s reasonable expectation of privacy.
FACTS
Appellee Ray Edward Oliver (“Oliver”) is a 62 year old retired farmer. His 200 acre farm is located in rural Kentucky, 20 miles from the nearest town, Jamestown, Kentucky. He lives on his farm with his wife and daughter. Much of the Oliver farm is leased to third parties who use the land for agricultural purposes.
On or about July 18, 1980, the Kentucky State Police received an anonymous tip that marijuana was being cultivated on the Oliver farm.
The detectives approached the Oliver farm on Kentucky Highway 379, a paved public road. The detectives gained access to the Oliver farm by turning off Highway 379 and onto a gravel, private road on Oliver’s land. Oliver owned the lаnd on both sides of the gravel road. The detectives admitted that they knew the gravel road was Oliver’s private road. The greater the distance from the public road the narrower the gravel road became. “No Trespassing” signs were posted along the gravel road in at least four location^. The officers saw the signs, but ignored their warning.
Hadley and Antle drove past the signs and travelled several hundred yards before they passed the Oliver home. The gravel road became markedly narrower after it passed the Oliver home. The agents never attempted to obtain permission to search the Oliver farm. Instead, they proceeded an additional % of a mile further on the Oliver property. Finally, a locked metal gate blocked their path.
The detectives parked and exited the car. The officers could see no contraband. Fences were on either side of the gate. At one end of the gate a path led through a gap in the fence. A “No Trespassing” sign was posted on the locked metal gate. The detectives admitted seeing the sign, but again ignored the warning. The detectives followed the path around thе locked gate.
A barn and a truck camper were located several hundred yards beyond the gate. The camper was parked in front of the barn. Unnamed third persons cultivating the marijuana inhabited the camper as a “home.”
The detectives approached the barn, looked around, but did not enter the barn. The detectives did not see anyone. The marijuana fields could not be seen from the barn. The detectives continued their search on foot. The gravel road had become an earthen path. The officers proceeded approximately Vi of a mile further through fields and wooded areas on a curved earthen path. Shouts halted their progress.
An unidentified man standing in front of the camper hollered, “No Hunting Is Allowed, Come Back Here!” Hadley and Antle halted their progress, turned, and shouted that they were State Police. Hadley and Antle’s search thus far had not detected the presence of marijuana on the Oliver farm. The two officers began to walk back to the camper. The man who had yelled was not present when Hadley and Antle arrived at the camper. Detective Hadley looked inside the camper, but still did not see anyone. He closed the door of the camper. The two men began their search anew.
The officers returned to the location where shouts had halted their progress and continued walking. Eventually, they entered a secluded field and saw marijuana. The marijuana was located in a field which had been leased to 'third persons not named in this action. The field was located 1 and
The marijuana fields were “highly secluded: they were bounded on all sides by woods, fences and embankments.” In fact, the fields were not visible from the Cumberland River, the barn, the locked metal
I. THE OPEN FIELD EXCEPTION TO THE FOURTH AMENDMENT
A. Hester v. United States
The Open Fields Doctrine states that the Fourth Amendment does not extend to activities conducted in any area beyond the curtilage of a home. The continued validity of this doctrine has been the subject of much debate since the seminal decision in Katz v. United States,
In Hester, the Supreme Court held that federal agents could trespass on an area where the public was not excluded during a warrantless search and view that which was exposed to the public without violating the Fourth Amendment. That which is observable by the public is observable by a federal agent without a warrant. Revenue agents had prior information concerning Hester’s involvement in the manufacture of illegal moonshine whiskey. Based on this information, two agents approached the Hester homе at night. The agents concealed themselves 50 to 100 yards away from the house when an automobile approached. Later, the agents saw Hester come out of the house and hand Henderson a quart bottle. An alarm was given. Hester and Henderson ran. Both men dropped bottles which were later determined to contain moonshine whiskey. Hester alleged that the search and seizure was illegal because the agents did not have a search warrant and had trespassed on his land. The Court disagreed. “This evidence was not obtained by the entry into the house and it is immaterial to discuss that.” Id.
Three years later in United States v. Lee,
“[N]o search on the high seas is shown. The testimony of the boatswain shows that he used a searchlight. It is not shown that there was any exploration below decks or under hatches. For aught that appears, the cases of liquor were on deck and, like the defendants, were discovered before the motor boat was boarded. Such use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution. Compare Hester v. United States,265 U.S. 57 [44 S.Ct. 445 ,68 L.Ed. 898 ].”
B. Olmstead Open Fields Doctrine
The following year, the Open Fields Doctrine was born in Olmstead v. United States,
In Olmstead, federal prohibition officers tapped the phones of Olmstead and several of his associates. The wire taps were installed without trespass upon any property of the defendants. A massive conspiracy to import, possess, and sell liquor was uncovered as a result of the taps. Olmstead alleged that the evidence derivеd from the phone tap constituted an illegal search and seizure. The court disagreed and adopted an analysis which focused on physical invasion of “constitutionally protected areas.”
“The Amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants.” Id., at 464, 48 S.Ct. at’567.
****** “Justice Bradley in the Boyd case, and Justice Clark in the Gouled case, said that the Fifth Amendment and the Fourth Amendment were to be liberally construed to effect the purpose of the framers of the Constitution in the interest of liberty. But that cannot justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight.
Hester v. United States,265 U.S. 57 [44 S.Ct. 445 ,68 L.Ed. 898 ], held that the testimony of two officers of the law who trespassed on the defendant’s land, concealed themselves one hundred yards away from his house and saw him come and hand a bottle of whiskey to another, was not inadmissible. While there was a trespass, there was no search of person, house, papers, or effects. United States v. Lee,274 U.S. 559 , 563 [47 S.Ct. 746 , 748,71 L.Ed. 1202 ]; Eversole v. State,106 Tex.Cr. 567 [294 S.W. 210 ].” Id.,277 U.S. at 465 ,48 S.Ct. at 567 .
****** “Neither the cases we have cited nor any of the many federal decisions brought to our attention hold the Fourth Amendment to have been violated as against a defendant unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible materials effects, or an actual physical invasion of his house ‘or curtilage’ for the purpose of making a seizure.
We think, therefore, that the wire tapping here disclosed did not amount to a search or seizure within the meaning of the Fourth Amendment.” Id., at 466,48 S.Ct. at 568 .
After the seminal decision in Olmstead, the Hester holding could best be stated as follows: the open field area beyond the curtilage is not an area entitled to Fourth Amendment protection. The Olmstead Open Fields Doctrine’s core, therefore, was that an open field was not a “constitutionally protected area.”
C. Katz v. United States
Katz v. United States,
In Katz, FBI agents bugged a public telephone booth by attaching an electronic listening and recording device to the outside of the booth. Katz alleged that the bugging violated the Fourth Amendment. The government disagreed. The parties compiled competing lists of “protected areas” for the Court’s consideration. The parties agreed that a private home was a protected area, citing Weeks v. United States,
The Court rejected the parties contentions stating “the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase “constitutionally protected area.” Id. at 350,
“It is true that the absence of such penetration was at one time thought to foreclose further Fourth Amendment inquiry, Olmstead v. United States,277 U.S. 438 , 457, 464, 466 [48 S.Ct. 564 , 565, 567, 568,72 L.Ed. 944 ] ... Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which the decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the record- . ing of oral statements, overheard without any “technical trespass under . . . local property law.” Silverman v. United States,365 U.S. 505 , 511,81 S.Ct. 679 , 682,5 L.Ed.2d 734 . Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people — and nоt simply “areas” — against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.
We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the “trespass” doctrine there enunciated can no longer be regarded as controlling. The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using thetelephone booth and thus constituted a “search and seizure” within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.” Id. 389 U.S. at 352-353 ,88 S.Ct. at 511-12 .
Justice Harlan’s concurring opinion in Katz also rejects Olmstead’s intrusion into “constitutionally protected area” analysis. He, too, reasoned that “the Fourth Amendment protects people, not places.”
II. THE MODERN OPEN FIELDS DOCTRINE
Katz radically altered Fourth Amendment analysis in at least twо major respects material to this action. First, the narrow holding in Hester that federal agents could trespass onto an area from which the public was not excluded and view that which was exposed to public view, without violating the Fourth Amendment remained viable. Second, the Olmstead Open Fields Doctrine that the area beyond the curtilage was not a “constitutionally protected area” was overruled. Consequently, warrantless searches for objects not exposed to the public, located in areas where the public is excluded are subject to the “reasonable expectation of privacy” test of Katz.
Air Pollution Variance Board v. Western Alfalfa,
“The field inspector did not enter the plant or offices. He was not inspecting stacks, boilers, scrubbers, flues, grates, or furnaces; nor was his inspection related to respondent’s files or papers. He had sighted what anyone in the city who was near the plant could see in the sky— plumes of smoke. The Court in Hester v. United States,265 U.S. 57 , 59 [44 S.Ct. 445 , 446,68 L.Ed. 898 ] speaking through Mr. Justice Holmes, refused to extend the Fourth Amendment to sights seen in “the open fields.” The field inspector was on respondent’s property but we are not advised that he was on premises from which the public was excluded.... Depending on the layout of the plant, the inspector may operate within or without the premises but in either case he is well within the “open fields” exception to the Fourth Amendment approved in Hester.” Id. at 865, 94 S.Ct. at 2115 .
Western Alfalfa defines the contours of the Open Fields Doctrine. The Supreme Court did not simply ratify the per se rule of the Olmstead Open Fields Doctrine. The invalidity of the Olmstead Open Fields Doctrine is amply demonstrated by the Court’s reliance on a fact not affirmatively established in the record. The Court emphasized that “we are not advised that he was on premises from which the public was excluded . . .. ” This statement is particularly significant for the public’s access to the business premises would have been immaterial if the Court had based its decision on the Olmstead Open Fields Doctrine. Olmstead’s per se rule would have enabled the inspector to trespass on the premises without regard to whether the public was excluded or not.
The rationale underlying Hester, the open fields exception to the Fourth Amendment, and Western Alfalfa was articulated in Marshall v. Barlow’s Inc.,
“Employees are not being prohibited from reporting OSHA violations. What they observe in their daily functions is undoubtedly beyond the employer’s reasonable expectation of privacy. The Government inspector, however, is not an employee. Without a warrant he stands in no better position than a member of the public. What is observable by the public is observable, without a warrant, by the Government inspector as well. The owner of a business has not, by thе necessary utilization of employees in his operation, thrown open the areas where employees alone are permitted to the warrantless scrutiny of Government agents.” Id. at 315,98 S.Ct. at 1821 .
In sum, the Open Fields Doctrine’s premise is that government agents without warrants are in the same position as the public and may make observations from any location from which the public is not excluded. The visibility of the object and the public’s access to the location are the two determinants of whether the Open Fields exception applies. Objects exposed to public view, even when located in areas from which the public is excluded, are not entitled to Fourth Amendment protection. The owner has not exhibited an intent to keep the item private, thus the seizure of the item will not violate his reasonable expectation of privacy. See Katz,
The open fields doctrine has frequently been utilized to uphold warrantless searches conducted on private property where the public has not been excluded. In United States v. Miller,
In Patler v. Slayton,
In United States v. Lace,
In United States v. Edmonds,
“While there was a ‘no trespassing’ sign on the entrance road leading to the premises, an officer who had resided in the area for 23 years testified that the reputation in the community was to the effect that the public was welcome to use the dock area and that the public did use it. The district court found that despite the sign the public had long had free access to the dock, and that conclusion is not plainly erroneous. Other than the presence of the sign, there was no evidence that the dock was ‘private’ to owner Morgan and thosе specifically authorized to use it. This was not a dock for private use for either fishing, or embarkation and debarkation of boats, or docking and storage. It was a place not only where boats docked and were unloaded but also a place of business activity where necessarily persons and vehicles had to come and go. The parking lot was open. The officers were not trespassers. They invaded the expected privacy of no one when they drove into the parking lot at the dock.” Id. at 1388. Accord Ehlers v. Bogue,626 F.2d 1314 , 1315 (5th Cir. 1980) (open fields doctrine enables county inspector to trespass and make observation from location where public was not excluded).
In Patterson v. National Transportation Safety Board,
“Cedar Valley Airport, as we understand it, is a private airport, as opposed to a municipal airport. From the record, it is unclear who owns it. It would appear that the public was allowed аccess to the airport proper even though it was privately owned and operated. Be all that as it may, it would appear that Broad-bent’s inspection was made in an open area. The plane had not been placed in any hangar or building. Under such circumstances, the ‘search’ of Patterson’s plane, if indeed it be a search, comes well within the ‘open fields’ exception to theFourth Amendment. Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861 [94 S.Ct. 2114 ,40 L.Ed.2d 607 ] (1974) and Hester v. United States,265 U.S. 57 [44 S.Ct. 445 ,68 L.Ed. 898 ] (1924).” Id. at 146.
In United States v. Pruitt,
In United States v. Balsamo,
“The officers’ entry, however, violated no ‘legitimate’ or reasonable expectation of privacy of the defеndants, and thus no Fourth Amendment interest were involved. A large sign advertising lots for sale stood at the entrance to the subdivision, inviting entry by the public to inspect the property. There were no ‘No Trespassing’ signs or fences restricting access to the property. The owner-developer relied on local police to patrol the subdivision. The use of the common roads was not monitored in any way. Any subjective belief defendants may have had that their activities would go undetected was neither legitimate or reasonable.” Id. at 1379.
By contrast, courts have consistently held that the open fields exception is not applicable where the warrantless search was conducted in an area where the public was excluded. In United States ex rel. Gedko v. Heer,
“Petitioner established in state court that his property was fenced; that the law enforcement officers entered onto his property by climbing over the fence; that no express consent was given to the law enforcement officers to enter onto his property; that his property was wooded and hilly; and that he and his wife were the owners of the property, which was a 160 acre farm located in rural south-western Wisconsin. In addition, there was undisputed testimony at the suppression hearing that the nearest public road was approximately six-tenths of a mile from the farm yard and that there was a No Trespassing sign posted on the property at the gate where the land runs into the highway.
In my opinion, these facts demonstrate that petitioner had a reasonable, exhibited, and justifiable expectation of privacy as to his activities and conversations not observable or audible beyond the boundaries of his own property.” Id. at 615 — 16.
In United States v. Berkshire Beagle Club, Slip Op. M.B.D. No. 80-24r-F (D.Mass., August 5, 1981), a federal agent trespassed onto the fenced and posted 200 acre tract of the Berkshire Beagle Club and seized several traps used to capture migratory birds such,as the Great Horned Owl. The tract of land was “surrounded by a lVi" wire mesh fence approximately five feet high. The fence is posted with ‘No Trespassing’ signs.” The agent “gained access to the premises by opening an apparently unlocked gate.” The leg-hold traps were not in plain view. The agent had to enter the defendant’s property to observe the traps. The government argued that the warrantless search was proper under the open fields doctrine. The court disagreed, holding the search violated the Fourth Amendment.
“Defendant’s Middleport plant includes a completely fenced-in facility of approximately 100 acres and a separately fenced lagoon of approximately 10 acres. The fence around the lagoon is 8 feet high, topped with barbed wire. Access to the lagoon through the fence is at a main gate which is approximately 150 feet from the fence of the main plant across the public utility easement. There is one other small gate used in сonnection with pond drainage. According to the affidavit of William C. Cole, Jr., the plant manager, it is defendant’s • practice to keep both gates closed and locked except when plant personnel are in the lagoon area. This court finds that the highly restricted access to the lagoon and the manner in which it was enclosed do not permit application of the ‘open fields’ exception in this case.”428 F.Supp. at 618 .
In State v. Byers,
“In the present case, the marijuana was not visible from the public road. The posted signs announced that the logging road was private and prohibited entry of the land. A chain barred access to the private road, though it was down at the time of the arrest and seizure. We conclude, under these circumstances, the defendants had a legitimate expectation of privacy.” Id. at 86.
In State of Florida v. Brady,
“Although the Hester opinion has not been overruled, subsequent opinions indicate that the open fields doctrine cannot be used as carte blanche for a warrantless search simply because the location searched is not part of a dwelling or its adjacent curtilage. As the Court has later observed in its opinion in Katz v. United States,389 U.S. 347 ,88 S.Ct. 507 ,19 L.Ed.2d 576 (1967) ‘. . . the Fourth Amendment protects people not places.’ Our opinion in Norman v. State,379 So.2d 643 (Fla.Sup.Ct.1980) made it clear that fences and locked gates are evidence of the owner’s or possessor’s expectation of privacy.”
III. THE WARRANTLESS SEARCH OF THE OLIVER FARM
The privacy interests protected by the Fourth Amendment are jealously guarded. “[Sjearches conducted outside the judicial process, without prior approval by judge or
In the instant case Kentucky State Police officers conducted a warrantless search of the Oliver farm and discovered marijuana under cultivation. The Government seeks to introduce evidence gathered as a result of the warrantless search on the ground that the search was conducted within the Open Fields exception to the Fourth Amendment. The Government argues that the Open Fields Doctrine is a per se rule that Fourth Amendment protections do not extend beyond the curtilage. At the suppression hearing the district court disagreed and ruled that the search was not within the open fields exception. On appeal a three judge panel of this court affirmed the district court. See United States v. Oliver,
The essence of the Open Fields Doctrine, as was explained earlier, is that government agents without a warrant are in the same position as the public and may make observations from locations where the public is not excluded. The Open Fields Doctrine enables government agents to trespass onto private areas from which the public is not excluded and make observations. See Hester,
The narrow, threshold question before the court is simply whether the public is excluded from the Oliver farm. The government concedes that the marijuana under cultivation was not visible from neighboring properties or from any point of public access. In applying the Open Fields Doctrine courts have been acutely sensitive to attempts to exclude the public. In fact, the presence or absence of fences, gates to impede access, and signs which convey warnings such as “No Trespassing” have consistently been a determinate of whether the warrantless search was within the Open Fields Doctrine. See e.g., Miller,
In the instant case Oliver’s private gravel road was posted. A locked metal gate blocked all vehicle access to most portions of the farm. Although a path did lead around the gate, the gate was posted to ensure that the public went no further. Finally, Hadley and Antle were effectively told to leave the property. The officers were apparently mistaken for hunters. They were told “No Hunting, Come Back Up Here!” This was adequate notice to leave the Oliver farm. We hold that the public was provided with more than adequate notice that they were not to trespass
It is not necessary to totally exclude everyone from a given parcel of land before the Open Fields Doctrine is inapplicable. It is enough that a reasonable effort has been made to exclude the public. See Berkshire Beagle Club, Slip Op. M.B.D. No. 80-24-F (agent gained accеss to fenced parcel through closed, but unlocked gate); Byers,
The second question the court must address is whether the warrantless search violated Oliver’s reasonable expectation of privacy. A reasonable expectation of privacy, by definition, is related to time, place and circumstance. See United States v. Vicknair,
The district court carefully considered the circumstances of the warrantless search of the Oliver farm and held: “Short of posting guards at the entrance, it is difficult to see what else the defendant could have done to assert his privacy interest in this property.” We agree. The officers encountered and ignored visual (“No Trespassing” signs), physical (fences and a locked metal gate) and verbal (verbal warning to leave the property) mаnifestations that Oliver expected privacy. The marijuana was not visible from any point of public access. Consequently, it cannot be doubted that Oliver possessed a subjective expectation of privacy in his farm land.
In United States v. Oliver,
The government argues that the Olmstead Open Fields Doctrine has continuing validity today. We disagree. The Open Fields Doctrine is not a per se rule which justifies all warrantless searches outside the curtilage of a house. The personal freedoms and privacy which all Americans hold dear would be seriously eroded if we approved a carte blanche rule allowing police officers to barnstorm around private property whenever they received an “anonymous tip” that illegal activities were being conducted on the land. Virtually every
We conclude that the Open Fields Doctrine does not apply in this case. Oliver had a subjective and reasonable expectation of privacy concerning his farm. Accordingly, the warrantless search of his farm violated the Fourth Amendment.
Notes
. Appellant, the United States, does not contend that the agents had probable cause for the search or that, if they did have such cause, there were exigent circumstances that would excuse getting a search warrant.
. The United States does not question Oliver’s standing to raise this Fourth Amendment issue but does rely on this leasing to the extent, if any, that Oliver’s expectation of privacy is an issue.
. It is, of course, immaterial that the narcotics agents here may have committed a trespass under state law. Indeed, even if Kentucky law had required a warrant, this would not affect our decision of this Fourth Amendment question. United States v. Hassell,
. The district court’s decision that Oliver had a reasonable expectation of privacy is largely based on the fact that the narcotics agents passed “No Trespassing” signs and a locked gate in making the search. If, however, they had made the search by helicopter, or on the ground but from another direction where there were no signs or a locked gate, there would have been no reasonable expectation of privacy. Thus the decision of the district court would seem to add still another refinement to Fourth Amendment law — i.e., that protection would depend upon the direction from which the search was accomplished. Hester, in its pristine simplicity, has obvious advantages.
. If we were free to make this decision as if it were a mere policy matter, our decision would be the same. The reason is that, in weighing the privacy interest of the owner of open fields against the public interest in law enforcement’s making random investigations to detect the
. The “curtilage of the house is frequently defined as the domestic use immediately surrounding a dwelling which usually is fenced in with the dwelling.” See United States v. LaBerge,
. A total of four people leased portions of the Oliver farm.
. Detective Hadley also testified that “people in the community” had “more or less said” that “it didn’t look right down on Ray’s farm.”
. The government admits that the detectives did not have probable cause to search the Oliver farm. The government also concedes that there were no exigent circumstances which would excuse the lack of a search warrant.
. The camper was equippеd with a refrigerator. Camping supplies were nearby. Eggs, bacon, and “iced down beer” were also present in the camper.
. In Hester, the term “open field” was used to describe the area beyond the curtilage from which the public was not excluded. Note that Olmstead uses the label “open field” to denote any area beyond the curtilage.
. Olmstead’s per se rule enabled law enforcement officials to conduct warrantless searches of any area outside the curtilage at any time for any reason.
. In Hassell federal agents suspected Hassell of operating an illicit still. Agents visited the defendant’s premises in the company of Hassell, sniffed around his barnyard, and satisfied themselves that the odor did not emanate from there. The agents subsequently followed the scent to an adjacent open field and found the still. The court disposed of Hassell’s contention that the search by the agents was illegal in ■ a single sentence: “Under federal law the search of open fields without a search warrant is not constitutionally ‘unreasonable.’ Hester v. United States,
. Justice Harlan opined that Katz overruled Olmstead. Katz,
. The Open Fields Doctrine enables government agents to trespass onto private land from which the publiс is not excluded and make observations. See Hester,
Dissenting Opinion
dissenting.
I am pleased to join in Judge Keith’s excellent analysis of the development of Fourth Amendment jurisprudence in the years since Hester was decided. However, I am writing separately because I also disagree with the majority on the basic question of whether the marijuana in the present case was found in an “open field” at all. There is no definition of “open fields” in Hester. The sketchy statement of facts in the Hester opinion does not mention locked gates or even fences, and there is no indication that the property was posted with “No Trespassing” signs. Most importantly, there is nothing in Hester which tells us whether the field which was searched was visible from a public road or other place where the officers had a right to be. It is undisputed that the Oliver field in question could not be seen from any surface location from which the public was not excluded. I read Justice Douglas’ opinion for a unanimous Supreme Court in Air Pollution Variance Board v. Western Alfalfa,
The evidence in the present case makes it clear that the public was excluded from the premises where the officers first viewed the field of marijuana. I find it surprising that the majority overlooks recent refinements of the “open fields” doctrine and is willing to rely so totally on a fact-bare opinion from the Prohibition Era, a period not known for requiring law enforcement officers to act with scrupulous regard for the constitutional rights of suspects.
In short, I believe Ray Oliver had done everything possible to establish his claim to a right of privacy in the back field of his farm. Because of his efforts to exclude uninvited visitors, and the location of the field, his claim of privacy was reasonable. The police would not have been frustrated by the requirement of a search warrant in this case. If their information from the informant was not sufficient to establish probable cause, as Judge Keith has pointed out, the Kentucky State Police could have observed and photographed the Oliver field