§ 6.06 OPEN FIELDS

• Jurisdiction: United States

§ 6.06. Open Fields⁹⁸

[A] Rule and Rationale

Entry into and exploration of so-called "open fields"⁹⁹ does not amount to a search within the meaning of the Fourth Amendment. This "open-fields doctrine," first announced by the Supreme Court prior to Katz,¹⁰⁰ was reaffirmed after Katz in Oliver v. United States.¹⁰¹

Oliver involved two cases in which officers without search warrants entered private property, ignored "No Trespassing" signs, walked around either a locked gate or a stone wall, and there observed marijuana plants not visible from outside the property. The Supreme Court, by a 5-3 vote, stated that people do not have a legitimate expectation of privacy in activities occurring in open fields, even if the activity occurring there could not be observed from the ground except by trespassing in violation of civil or criminal law. In short, trespassing by law enforcement officers into open fields does not constitute a Fourth Amendment "search."¹⁰²

Why is it not a "search"? According to Oliver, the Fourth Amendment reflects the constitutional framers' belief that certain "enclaves," such as a house, should be free from governmental interference. In contrast, "open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance." The Court stated that "[t]here is no societal interest in protecting the privacy of those activities, such as cultivation of crops, that occur in open fields."¹⁰³

Furthermore, as a practical matter, open fields usually are accessible to the public and the police in ways that homes and offices are not. The Court observed that "No Trespassing" signs do not effectively bar intruders. Moreover, the same activities that police officers observe unlawfully by trespassing can be observed lawfully by air. Therefore, any expectation that a homeowner may have in his open fields is not one that society is prepared to recognize as reasonable.

[B] "Open Field" versus "Curtilage"

In Fourth Amendment analysis, lawyers must distinguish between: (1) a "house," which is provided full Fourth Amendment protection; (2) the "curtilage" to a house, which is said to be encompassed within the term "houses" in the Fourth Amendment text, but which receives somewhat less Fourth Amendment protection than the interior of the house itself; and (3) an "open field," entry into which falls outside the Fourth Amendment.

Oliver did not define the term "open fields," but it did state that it "may include any unoccupied or undeveloped area outside the curtilage." It also stated that it "need be neither 'open' nor a 'field' as those terms are used in common speech." The "curtilage" is "the land immediately surrounding and associated with the home." At common law it is the "area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life.' "¹⁰⁴

As set out in United States v. Dunn,¹⁰⁵ four factors are relevant in determining whether land falls within or outside the curtilage: (1) the proximity of the land to the home; (2) whether the area is included within enclosures surrounding the house; (3) the nature of the use to which the area is put; and (4) the steps taken by the resident to protect the land in...