Oliver v. United States
Opinion of the Court
delivered the opinion of the Court.
The “open fields” doctrine, first enunciated by this Court in Hester v. United States, 265 U. S. 57 (1924), permits police officers to enter and search a field without a warrant. We granted certiorari in these cases to clarify confusion that has arisen as to the continued vitality of the doctrine.
I
No. 82-15.Acting on reports that marihuana was being raised on the farm of petitioner Oliver, two narcotics agents of the Kentucky State Police went to the farm to investigate.
Petitioner was arrested and indicted for “manufacturing]” a “controlled substance.” 21 U. S. C. § 841(a)(1). After a pretrial hearing, the District Court suppressed evidence of the discovery of the marihuana field. Applying Katz v. United States, 389 U. S. 347, 357 (1967), the court found that petitioner had a reasonable expectation that the field would remain private because petitioner “had done all that could be expected of him to assert his privacy in the area of farm that was searched.” He had posted “No Trespassing” signs at regular intervals and had locked the gate at the entrance to the center of the farm. App. to Pet. for Cert. in No. 82-15,
The Court of Appeals for the Sixth Circuit, sitting en banc, reversed the District Court. 686 F. 2d 356 (1982).
No. 82-1273. After receiving an anonymous tip that marihuana was being grown in the woods behind respondent Thornton’s residence, two police officers entered the woods by a path between this residence and a neighboring house. They followed a footpath through the woods until they reached two marihuana patches fenced with chicken wire. Later, the officers determined that the patches were on the property of respondent, obtained a warrant to search the property, and seized the marihuana. On the basis of this evidence, respondent was arrested and indicted.
The Maine Supreme Judicial Court affirmed. 453 A. 2d 489 (1982). It agreed with the trial court that the correct question was whether the search “is a violation of privacy on which the individual justifiably relied,” id., at 493, and that the search violated respondent’s privacy. The court also agreed that the open fields doctrine did not justify the search. That doctrine applies, according to the court, only when officers are lawfully present on property and observe “open and patent” activity. Id., at 495. In this case, the officers had trespassed upon defendant’s property, and the respondent had made every effort to conceal his activity. We granted certiorari. 460 U. S. 1068 (1983).
The rule announced in Hester v. United States was founded upon the explicit language of the Fourth Amendment. That Amendment indicates with some precision the places and things encompassed by its protections. As Justice Holmes explained for the Court in his characteristically laconic style: “[T]he special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields. The distinction between the latter and the house is as old as the common law.” Hester v. United States, 265 U. S., at 59.
Nor are the open fields “effects” within the meaning of the Fourth Amendment. In this respect, it is suggestive that James Madison’s proposed draft of what became the Fourth
hH HH
This interpretation of the Fourth Amendment’s language is consistent with the understanding of the right to privacy expressed in our Fourth Amendment jurisprudence. Since Katz v. United States, 389 U. S. 347 (1967), the touchstone of Amendment analysis has been the question whether a person has a “constitutionally protected reasonable expectation of privacy.” Id., at 360 (Harlan, J., concurring). The Amendment does not protect the merely subjective expectation of privacy, but only those “expectation[s] that society is prepared to recognize as ‘reasonable.’” Id., at 361. See also Smith v. Maryland, 442 U. S. 735, 740-741 (1979).
A
No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. See Rakas v. Illinois, 439 U. S. 128, 152-153
In this light, the rule of Hester v. United States, supra, that we reaffirm today, may be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. See also Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U. S. 861, 865 (1974). This rule is true to the conception of the right to privacy embodied in the Fourth Amendment. The Amendment reflects the recognition of the Framers that certain enclaves should be free from arbitrary government interference. For example, the Court since the enactment of the Fourth Amendment has stressed “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.” Payton v. New York, supra, at 601.
B
Petitioner Oliver and respondent Thornton contend, to the contrary, that the circumstances of a search sometimes may indicate that reasonable expectations of privacy were violated; and that courts therefore should analyze these circumstances on a case-by-case basis. The language of the Fourth Amendment itself answers their contention.
Nor would a case-by-case approach provide a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment. Under this approach, police officers would have to guess before every search whether landowners had erected fences sufficiently high, posted a sufficient number of warning signs, or located contraband in an area sufficiently secluded to establish a right of privacy. The lawfulness of a search would turn on “ ‘[a] highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions . . . New York v. Belton, 453 U. S. 454, 458 (1981) (quoting LaFave, “Case-By-Case Adjudication” versus “Standardized Procedures”: The Robinson Dilemma, 1974 S. Ct. Rev. 127, 142). This Court repeatedly has acknowledged the difficulties created for courts, police, and citizens by an ad hoc, case-by-case definition of Fourth Amendment standards to be applied in differing factual circumstances. See Belton, supra, at 458-460; Robbins v. California, 453 U. S. 420, 430 (1981) (Powell, J., concurring in judgment); Dunaway v. New York, 442 U. S. 200, 213-214 (1979); United States v. Robinson, 414 U. S. 218, 235 (1973). The ad hoc approach not only makes it difficult for the policeman to discern the scope of his authority, Belton, supra, at 460; it also creates a danger that consti
IV
In any event, while the factors that petitioner Oliver and respondent Thornton urge the courts to consider may be relevant to Fourth Amendment analysis in some contexts, these factors cannot be decisive on the question whether the search of an open field is subject to the Amendment. Initially, we reject the suggestion that steps taken to protect privacy establish that expectations of privacy in an open field are legitimate. It is true, of course, that petitioner Oliver and respondent Thornton, in order to conceal their criminal activities, planted the marihuana upon secluded land and erected fences and “No Trespassing” signs around the property. And it may be that because of such precautions, few members of the public stumbled upon the marihuana crops seized by the police. Neither of these suppositions demonstrates, however, that the expectation of privacy was legitimate in the sense required by the Fourth Amendment. The test of legitimacy is not whether the individual chooses to conceal assertedly “private” activity.
Nor is the government’s intrusion upon an open field a “search” in the constitutional sense because that intrusion is a trespass at common law. The existence of a property right is but one element in determining whether expectations of privacy are legitimate. “ ‘The premise that property interests control the right of the Government to search and seize has been discredited.’” Katz, 389 U. S., at 353 (quoting Warden v. Hayden, 387 U. S. 294, 304 (1967)). “[E]ven a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon.” Rakas v. Illinois, 439 U. S., at 144, n. 12.
The common law may guide consideration of what areas are protected by the Fourth Amendment by defining areas whose invasion by others is wrongful. Id., at 153 (Powell, J., concurring).
V
We conclude that the open fields doctrine, as enunciated in Hester, is consistent with the plain language of the Fourth Amendment and its historical purposes. Moreover, Justice Holmes’ interpretation of the Amendment in Hester accords with the “reasonable expectation of privacy” analysis developed in subsequent decisions of this Court. We therefore affirm Oliver v. United States; Maine v. Thornton is reversed and remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
It is conceded that the police did not have a warrant authorizing the search, that there was no probable cause for the search, and that no exception to the warrant requirement is applicable.
A panel of the Sixth Circuit had affirmed the suppression order. 657 F. 2d 85 (1981).
The four dissenting judges contended that the open fields doctrine did not apply where, as in this case, “reasonable effortfs] [have] been made to exclude the public.” 686 F. 2d, at 372. To that extent, the dissent considered that Katz v. United States implicitly had overruled previous holdings of this Court. The dissent then concluded that petitioner had established a “reasonable expectation of privacy” under the Katz standard. Judge Lively also wrote separately to argue that the open fields doctrine applied only to lands that could be viewed by the public.
The court also discredited other information, supplied by a confidential informant, upon which the police had based their warrant application.
Respondent contends that the decision below rests upon adequate and independent state-law grounds. We do not read that decision, however, as excluding the evidence because the search violated the State Constitution. The Maine Supreme Judicial Court referred only to the Fourth Amendment of the Federal Constitution and purported to apply the Katz test; the prior state cases that the court cited also construed the Federal Constitution. In any case, the Maine Supreme Judicial Court did not articulate an independent state ground with the clarity required by Michigan v. Long, 463 U. S. 1032 (1983).
Contrary to respondent’s assertion, we do not review here the state courts’ finding as a matter of “fact” that the area searched was not an “open field. ” Rather, the question before us is the appropriate legal standard for determining whether search of that area without a warrant was lawful under the Federal Constitution.
The conflict between the two cases that we review here is illustrative of the confusion the open fields doctrine has generated among the state and
The dissent offers no basis for its suggestion that Hester rests upon some narrow, unarticulated principle rather than upon the reasoning enunciated by the Court’s opinion in that case. Nor have subsequent cases discredited Hester*s reasoning. This Court frequently has relied on the explicit language of the Fourth Amendment as delineating the scope of its affirmative protections. See, e. g., Robbins v. California, 453 U. S. 420, 426 (1981) (opinion of Stewart, J.); Payton v. New York, 445 U. S. 573, 589-590 (1980); Alderman v. United States, 394 U. S. 165, 178-180 (1969). As these cases, decided after Katz, indicate, Katz’ “reasonable expectation of privacy” standard did not sever Fourth Amendment doctrine from the Amendment’s language. Katz itself construed the Amendment’s protection of the person against unreasonable searches to encompass electronic eavesdropping of telephone conversations sought to be kept private; and Katz’ fundamental recognition that “the Fourth Amendment protects people — and not simply ‘areas’ — against unreasonable searches and seizures,” see 389 U. S., at 353, is faithful to the Amendment’s language. As Katz demonstrates, the Court fairly may respect the constraints of the Constitution’s language without wedding itself to an unreasoning literalism. In contrast, the dissent’s approach would ignore the language of the Constitution itself as well as overturn this Court’s governing precedent.
The Framers would have understood the term “effects” to be limited to personal, rather than real, property. See generally Doe v. Dring, 2 M. & S. 448, 454, 105 Eng. Rep. 447, 449 (K. B. 1814) (discussing prior cases); 2 W. Blackstone, Commentaries *16, *384-*385.
The Fourth Amendment’s protection of offices and commercial buildings, in which there may be legitimate expectations of privacy, is also based upon societal expectations that have deep roots in the history of the Amendment. See Marshall v. Barlow’s, Inc., 436 U. S. 307, 311 (1978); G. M. Leasing Corp. v. United States, 429 U. S. 338, 366 (1977).
Tr. of Oral Arg. 14-15, 58. See, e. g., United States v. Allen, 675 F. 2d 1373, 1380-1381 (CA9 1980); United States v. DeBacker, 493 F. Supp. 1078, 1081 (WD Mich. 1980). In practical terms, petitioner Oliver’s and respondent Thornton’s analysis merely would require law enforcement officers, in most situations, to use aerial surveillance to gather the information necessary to obtain a warrant or to justify warrantless entry onto the property. It is not easy to see how such a requirement would advance legitimate privacy interests.
The dissent conceives of open fields as bustling with private activity as diverse as lovers’ trysts and worship services. Post, at 191-193. But in most instances police will disturb no one when they enter upon open fields. These fields, by their very character as open and unoccupied, are unlikely to provide the setting for activities whose privacy is sought to be protected by the Fourth Amendment. One need think only of the vast expanse of some western ranches or of the undeveloped woods of the Northwest to see the unreality of the dissent’s conception. Further, the Fourth Amendment provides ample protection to activities in the open fields that might implicate an individual’s privacy. An individual who enters a place defined to be “public” for Fourth Amendment analysis does not lose all claims to privacy or personal security. Cf. Arkansas v. Sanders, 442 U. S. 753, 766-767 (1979) (Burger, C. J., concurring in judgment). For example, the Fourth Amendment’s protections against unreasonable arrest or unreasonable seizure of effects upon the person remain fully applicable. See, e. g., United States v. Watson, 423 U. S. 411 (1976).
Neither petitioner Oliver nor respondent Thornton has contended that the property searched was within the curtilage. Nor is it necessary in these cases to consider the scope of the curtilage exception to the open fields doctrine or the degree of Fourth Amendment protection afforded the curtilage, as opposed to the home itself. It is clear, however, that the term “open fields” may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither “open” nor a “field” as those terms are used in common speech. For example, contrary to respondent Thornton's suggestion, Tr. of Oral Arg. 21-22, a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment. See, e. g., United States v. Pruitt, 464 F. 2d 494 (CA9 1972); Bedell v. State, 257 Ark. 895, 521 S. W. 2d 200 (1975).
The clarity of the open fields doctrine that we reaffirm today is not sacrificed, as the dissent suggests, by our recognition that the curtilage remains within the protections of the Fourth Amendment. Most of the many millions of acres that are “open fields” are not close to any structure and so not arguably within the curtilage. And, 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. The occasional difficulties that courts might have in applying this, like other, legal concepts, do not argue for the unprecedented expansion of the Fourth Amendment advocated by the dissent.
Certainly the Framers did not intend that the Fourth Amendment should shelter criminal activity wherever persons with criminal intent choose to erect barriers and post “No Trespassing” signs.
As noted above, the common-law conception of the “curtilage” has served this function.
The law of trespass recognizes the interest in possession and control of one’s property and for that reason permits exclusion of unwanted intruders. But it does not follow that the right to exclude conferred by trespass law embodies a privacy interest also protected by the Fourth Amendment. To the contrary, the common law of trespass furthers a range of interests that have nothing to do with privacy and that would not be served by applying the strictures of trespass law to public officers. Criminal laws against trespass are prophylactic: they protect against intruders who poach, steal livestock and crops, or vandalize property. And the civil action of trespass serves the important function of authorizing an owner to defeat claims of prescription by asserting his own title. See, e. g.,
Concurring Opinion
concurring in part and concurring in the judgment.
I concur in the judgment and join Parts I and II of the Court’s opinion. These Parts dispose of the issue before us; there is no need to go further and deal with the expectation of privacy matter. However reasonable a landowner’s expectations of privacy may be, those expectations cannot convert a field into a “house” or an “effect.”
Dissenting Opinion
with whom Justice Brennan and Justice Stevens join, dissenting.
In each of these consolidated cases, police officers, ignoring clearly visible “No Trespassing” signs, entered upon private land in search of evidence of a crime. At a spot that could
The Court holds that police conduct of this sort does not constitute an “unreasonable search” within the meaning of the Fourth Amendment. The Court reaches that startling conclusion by two independent analytical routes. First, the Court argues that, because the Fourth Amendment by its terms renders people secure in their “persons, houses, papers, and effects,” it is inapplicable to trespasses upon land not lying within the curtilage of a dwelling. Ante, at 176-177. Second, the Court contends that “an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.” Ante, at 178. Because I cannot agree with either of these propositions, I dissent.
HH
The first ground on which the Court rests its decision is that the Fourth Amendment “indicates with some precision the places and things encompassed by its protections,” and that real property is not included in the list of protected spaces and possessions. Ante, at 176. This line of argument has several flaws. Most obviously, it is inconsistent with the results of many of our previous decisions, none of which the Court purports to overrule. For example, neither a public telephone booth nor a conversation conducted therein can fairly be described as a person, house, paper, or effect;
Indeed, the Court’s reading of the plain language of the Fourth Amendment is incapable of explaining even its own holding in this case. The Court rules that the curtilage, a zone of real property surrounding a dwelling, is entitled to constitutional protection. Ante, at 180. We are not told, however, whether the curtilage is a “house” or an “effect”— or why, if the curtilage can be incorporated into the list of things and spaces shielded by the Amendment, a field cannot.
The Court’s inability to reconcile its parsimonious reading of the phrase “persons, houses, papers, and effects” with our prior decisions or even its own holding is a symptom of a more fundamental infirmity in the Court’s reasoning. The Fourth Amendment, like the other central provisions of the Bill of Rights that loom large in our modern jurisprudence, was designed, not to prescribe with “precision” permissible and impermissible activities, but to identify a fundamental human liberty that should be shielded forever from government intrusion.
The liberty shielded by the Fourth Amendment, as we have often acknowledged, is freedom “from unreasonable government intrusions into . . . legitimate expectations of privacy.” United States v. Chadwick, 433 U. S. 1, 7 (1977). That freedom would be incompletely protected if only government conduct that impinged upon a person, house, paper, or effect were subject to constitutional scrutiny. Accordingly, we have repudiated the proposition that the Fourth Amendment applies only to a limited set of locales or kinds of property. In Katz v. United States, we expressly rejected a proffered locational theory of the coverage of the Amendment, holding that it “protects people, not places.” 389 U. S., at 351. Since that time we have consistently adhered
H-I HH
The second ground for the Court s decision is its contention that any interest a landowner might have in the privacy of his woods and fields is not one that “society is prepared to recognize as ‘reasonable.’” Ante, at 177 (quoting Katz v. United States, 389 U. S., at 361 (Harlan, J., concurring)).
As the Court acknowledges, we have traditionally looked to a variety of factors in determining whether an expectation of privacy asserted in a physical space is “reasonable.” Ante, at 177-178. Though those factors do not lend themselves to precise taxonomy, they may be roughly grouped into three categories. First, we consider whether the expectation at issue is rooted in entitlements defined by positive law. Second, we consider the nature of the uses to which spaces of the sort in question can be put. Third, we consider whether the person claiming a privacy interest manifested that interest to the public in a way that most people would understand and respect.
A
We have frequently acknowledged that privacy interests are not coterminous with property rights. E. g., United States v. Salvucci, 448 U. S. 83, 91 (1980). However, because “property rights reflect society’s explicit recognition
It is undisputed that Oliver and Thornton each owned the land into which the police intruded. That fact alone provides considerable support for their assertion of legitimate privacy interests in their woods and fields. But even more telling is the nature of the sanctions that Oliver and Thornton could invoke, under local law, for violation of their property rights. In Kentucky, a knowing entry upon fenced or otherwise enclosed land, or upon unenclosed land conspicuously posted with signs excluding the public, constitutes criminal trespass. Ky. Rev. Stat. §§ 511.070(1), 511.080, 511.090(4) (1975). The law in Maine is similar. An intrusion into “any place from
B
The uses to which a place is put are highly relevant to the assessment of a privacy interest asserted therein. Rakas v. Illinois, supra, at 153 (POWELL, J., concurring). If, in light of our shared sensibilities, those activities are of a kind in which people should be able to engage without fear of intrusion by private persons or government officials, we extend the protection of the Fourth Amendment to the space in question, even in the absence of any entitlement derived from positive law. E. g., Katz v. United States, 389 U. S., at 352-353.
C
Whether a person “took normal precautions to maintain his privacy” in a given space affects whether his interest is one protected by the Fourth Amendment. Rawlings v. Kentucky, 448 U. S. 98, 105 (1980).
Certain spaces are so presumptively private that signals of this sort are unnecessary; a homeowner need not post a “Do Not Enter” sign on his door in order to deny entrance to uninvited guests.
Undeveloped land falls into the last-mentioned category. If a person has not marked the boundaries of his fields or woods in a way that informs passersby that they are not wel
A very different case is presented when the owner of undeveloped land has taken precautions to exclude the public. As indicated above, a deliberate entry by a private citizen onto private property marked with “No Trespassing” signs will expose him to criminal liability. I see no reason why a government official should not be obliged to respect such
In sum, examination of the three principal criteria we have traditionally used for assessing the reasonableness of a person’s expectation that a given space would remain private indicates that interests of the sort asserted by Oliver and Thornton are entitled to constitutional protection. An owner’s right to insist that others stay off his posted land is firmly grounded in positive law. Many of the uses to which such land may be put deserve privacy. And, by marking the boundaries of the land with warnings that the public should not intrude, the owner has dispelled any ambiguity as to his desires.
The police in these cases proffered no justification for their invasions of Oliver’s and Thornton’s privacy interests; in neither case was the entry legitimated by a warrant or by one of the established exceptions to the warrant requirement. I conclude, therefore, that the searches of their land violated the Fourth Amendment, and the evidence obtained in the course of those searches should have been suppressed.
HH t — i
A clear, easily administrable rule emerges from the analysis set forth above: Private land marked in a fashion sufficient to render entry thereon a criminal trespass under the law of the State in which the land lies is protected by the Fourth Amendment’s proscription of unreasonable searches and seizures. One of the advantages of the foregoing rule is that
By contrast, the doctrine announced by the Court today is incapable of determinate application. Police officers, making warrantless entries upon private land, will be obliged in the future to make on-the-spot judgments as to how far the curtilage extends, and to stay outside that zone.
The Court’s holding not only ill serves the need to make constitutional doctrine “workable for application by rank- and-file, trained police officers,” Illinois v. Andreas, 463 U. S. 765, 772 (1983), it withdraws the shield of the Fourth Amendment from privacy interests that clearly deserve protection. By exempting from the coverage of the Amendment large areas of private land, the Court opens the way to investigative activities we would all find repugnant. Cf., e. g., United States v. Lace, 669 F. 2d 46, 54 (CA2 1982) (Newman, J., concurring in result) (“[WJhen police officers execute military maneuvers on residential property for three weeks of round-the-clock surveillance, can that be called frea-
The Fourth Amendment, properly construed, embodies and gives effect to our collective sense of the degree to which men and women, in civilized society, are entitled “to be let alone” by their governments. Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting); cf. Smith v. Maryland, 442 U. S., at 750 (Marshall, J., dissenting). The Court’s opinion bespeaks and will help to promote an impoverished vision of that fundamental right.
I dissent.
The Court informs us that the Framers would have understood the term “effects” to encompass only personal property. Ante, at 177, n. 7. Such a construction of the term would exclude both a public phone booth and spoken words.
On the other hand, an automobile surely does constitute an “effect.” Under the Court’s theory, cars should therefore stand on the same constitutional footing as houses. Our cases establish, however, that car owners’ diminished expectations that their cars will remain free from prying eyes warrants a corresponding reduction in the constitutional protection accorded cars. E. g., United States v. Martinez-Fuerte, 428 U. S. 543, 561 (1976).
By their terms, the provisions of the Bill of Rights curtail only activities by the Federal Government, see Barron v. Mayor and City Council of Baltimore, 7 Pet. 243 (1833), but the Fourteenth Amendment subjects state and local governments to the most important of those restrictions, see, e. g., Cantwell v. Connecticut, 310 U. S. 296 (1940) (First Amendment); Wolf v. Colorado, 338 U. S. 25 (1949) (Fourth Amendment).
Cf. McCulloch v. Maryland, 4 Wheat. 316, 407 (1819) (“[W]e must never forget, that it is a constitution we are expounding.” Such a document cannot be as detailed as a “legal code”; “[i]ts nature . . . requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves”) (emphasis in original).
Our rejection of the mode of interpretation appropriate for statutes is perhaps clearest in our treatment of the First Amendment. That Amendment provides, in pertinent part, that “Congress shall make no law . . . abridging the freedom of speech, or of the press” but says nothing, for example, about restrictions on expressive behavior or about access to the courts. Yet, to give effect to the purpose of the Amendment, we have applied it to regulations of conduct designed to convey a message, e. g., Edwards v. South Carolina, 372 U. S. 229 (1963), and have accorded constitutional protection to the public’s “right of access to criminal trials,” Globe Newspaper Co. v. Superior Court, 467 U. S. 596, 604-605 (1982).
See also United States v. Chadwick, 433 U. S. 1, 7, 11 (1977) (disagreeing with the suggestion that the Fourth Amendment “protects only dwellings and other specifically designated locales”; asserting instead that the purpose of the Amendment “is to safeguard individuals from unreasonable government invasions of legitimate privacy interests”); Rakas v. Illinois, 439 U. S. 128, 143 (1978) (holding that the determinative question is “whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place”).
Our most recent decisions continue to rely on the conception of the purpose and scope of the Fourth Amendment that we enunciated in Katz. See, e. g., United States v. Jacobsen, ante, at 113-118; Michigan v. Clifford, 464 U. S. 287, 292-293 (1984); Illinois v. Andreas, 463 U. S. 765, 771 (1983); United States v. Place, 462 U. S. 696, 706-707 (1983); Texas v. Brown, 460 U. S. 730, 738-740 (1983) (plurality opinion); United States v. Knotts, 460 U. S. 276, 280-281 (1983).
Sensitive to the weakness of its argument that the “persons or things” mentioned in the Fourth Amendment exhaust the coverage of the provision, the Court goes on to analyze at length the privacy interests that might legitimately be asserted in “open fields.” The inclusion of Parts III and IV in the opinion, coupled with the Court’s reaffirmation of Katz and its progeny, ante, at 177, strongly suggests that the plain-language theory sketched in Part II of the Court’s opinion will have little or no effect on our future decisions in this area.
The privacy interests protected by the Fourth Amendment are not limited to expectations that physical areas will remain free from public and government intrusion. See supra, at 187-188. The factors relevant to the assessment of the reasonableness of a nonspatial privacy interest may well be different from the three considerations discussed here. See, e. g., Smith v. Maryland, 442 U. S. 735, 747-748 (1979) (Stewart, J., dissenting); id., at 750-752 (MARSHALL, J., dissenting).
The Court does not dispute that Oliver and Thornton had subjective expectations of privacy, nor could it in view of the lower courts’ findings on that issue. See United States v. Oliver, No. CR80-00005-01-BG (WD Ky., Nov. 14, 1980), App. to Pet. for Cert. in No. 82-15, pp. 19-20; Maine v. Thornton, No. CR82-10 (Me. Super. Ct., Apr. 16, 1982), App. to Pet. for Cert. in No. 82-1273, pp. B-4 — B-5.
The Court today seeks to evade the force of this principle by contending that the law of property is designed to serve various “prophylactic” and “economic” purposes unrelated to the protection of privacy. Ante, at 183-184, and n. 15. Such efforts to rationalize the distribution of entitlements under state law are interesting and may have some explanatory power, but cannot support the weight the Court seeks to place upon them. The Court surely must concede that one of the purposes of the law of real property (and specifically the law of criminal trespass, see infra, this page and 191, and n. 12) is to define and enforce privacy interests — to empower some people to make whatever use they wish of certain tracts of land without fear that other people will intrude upon their activities. The views of commentators, old and new, as to other functions served by positive law are thus insufficient to support the Court’s sweeping assertion that “in the case of open fields, the general rights of property. . . have little or no relevance to the applicability of the Fourth Amendment,” ante, at 183-184.
See also Rawlings v. Kentucky, 448 U. S. 98, 112 (1980) (Blackmun, J., concurring).
Cf. Comment to ALI, Model Penal Code §221.2, p. 87 (1980) (“The common thread running through these provisions [a sample of state criminal trespass laws] is the element of unwanted intrusion, usually coupled with some sort of notice to would-be intruders that they may not enter. Most people do not object to strangers tramping through woodland or over pasture or open range. On the other hand, intrusions into buildings, onto property fenced in a manner manifestly designed to exclude intruders, or onto any private property in defiance of actual notice to keep away is generally considered objectionable and under some circumstances frightening”).
In most circumstances, this inquiry requires analysis of the sorts of uses to which a given space is susceptible, not the manner in which the person asserting an expectation of privacy in the space was in fact employing
We accord constitutional protection to businesses conducted in office buildings, see supra, at 185-186; it is not apparent why businesses conducted in fields that are not open to the public are less deserving of the benefit of the Fourth Amendment.
This last-mentioned use implicates a kind of privacy interest somewhat different from those to which we are accustomed. It involves neither a person’s interest in immunity from observation nor a person’s interest in shielding from scrutiny the residues and manifestations of his personal life. Cf. Weinreb, Generalities of the Fourth Amendment, 42 U. Chi. L. Rev. 47, 52-54 (1974). It derives, rather, from a person’s desire to preserve inviolate a portion of his world. The idiosyncracy of this interest does not, however, render it less deserving of constitutional protection.
See also Rakas v. Illinois, supra, at 152 (Powell, J., concurring); United States v. Chadwick, supra, at 11; Katz v. United States, supra, at 352.
However, if the homeowner acts affirmatively to invite someone into his abode, he cannot later insist that his privacy interests have been violated. Lewis v. United States, 385 U. S. 206 (1966).
An argument supportive of the position taken by the Court today might be constructed on the basis of an examination of the record in Hester. It appears that, in his approach to the house, one of the agents crossed a pasture fence. See Tr. of Record in Hester v. United States, O. T. 1923, No. 243, p. 16. However, the Court, in its opinion, placed no weight upon — indeed, did not even mention — that circumstance.
In any event, to the extent that Hester may be read to support a rule any broader than that stated in Air Pollution Variance Board v. Western Alfalfa Corp., 416 U. S. 861 (1974), it is undercut by our decision in Katz, which repudiated the locational theory of the coverage of the Fourth Amendment enunciated in Olmstead v. United States, 277 U. S. 438 (1928), and by the line of decisions originating in Katz, see supra, at 187-188, and n. 6.
Indeed, important 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 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, with potentially tragic results. Cf. McDonald v. United States, 335 U. S. 451, 460-461 (1948) (Jackson, J., concurring).
The likelihood that the police will err in making such judgments is suggested by the difficulty experienced by courts when trying to define the curtilage of dwellings. See, e. g., United States v. Berrong, 712 F. 2d 1370, 1374, and n. 7 (CA11 1983), cert. pending, No. 83-988; United States v. Van Dyke, 643 F. 2d 992, 993-994 (CA4 1981).
Perhaps the most serious danger in the decision today is that, if the police are permitted routinely to engage in such behavior, it will gradually become less offensive to us all. As Justice Brandéis once observed: “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law. . . .” Olmstead v. United States, 277 U. S., at 485 (dissenting opinion). See also Solem v. Stumes, 465 U. S. 688, 667 (1984) (Stevens, J., dissenting).
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