A criminal procedure doctrine that provides that law enforcement officers do not need a warrant to search an area which is outside a property owner’s curtilage — i.e., any land other than the immediate surroundings of a dwelling.

Reference Desk:

Oliver v. United States, 466 U.S. 170 (1984).

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.

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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 (1978) (POWELL, J., concurring). In assessing the degree to which a search infringes upon individual privacy, the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment, e. g., United States v. Chadwick, 433 U. S. 1, 7-8 (1977), the uses to which the individual has put a location, e. g., Jones v. United States, 362 U. S. 257, 265 (1960), and our societal understanding that certain areas deserve the most scrupulous protection from government invasion, e. g., Payton v.New York, 445 U. S. 573 (1980). These factors are equally relevant to determining whether the government’s intrusion upon open fields without a warrant or probable cause violates reasonable expectations of privacy and is therefore a search proscribed by the Amendment.

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.[8] See alsoSilverman v. United States, 365 U. S. 505, 511 (1961); United States v. United States District Court, 407 U. S. 297, 313 (1972).

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. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Moreover, as a practical matter these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be. It is not generally true that fences or “No Trespassing” signs effectively bar the public from viewing open fields in rural areas. And both petitioner Oliver and respondent Thornton concede that the public and police lawfully may survey lands from the air.[9] For these reasons, the asserted expectation of privacy in open fields is not an expectation that “society recognizes as reasonable.”[10]

The historical underpinnings of the open fields doctrine also demonstrate that the doctrine is consistent with respect for “reasonable expectations of privacy.” As Justice Holmes, writing for the Court, observed in Hester, 265 U. S., at 59, the common law distinguished “open fields” from the “curtilage,” the land immediately surrounding and associated with the home. See 4 W. Blackstone, Commentaries *225. The distinction implies that only the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home. At common law, the curtilage is the area to which extends the intimate activity associated with the “sanctity of a man’s home and the privacies of life,” Boyd v. United States, 116 U. S. 616, 630 (1886), and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. See, e. g., United States v. Van Dyke, 643 F. 2d 992, 993-994 (CA4 1981); United States v. Williams,581 F. 2d 451, 453 (CA5 1978); Care v. United States, 231 F. 2d 22, 25 (CA10), cert. denied, 351 U. S. 932 (1956). Conversely, the common law implies, as we reaffirm today, that no expectation of privacy legitimately attaches to open fields.[11]

We conclude, from the text of the Fourth Amendment and from the historical and contemporary understanding of its purposes, that an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers.

U.S. Constitution Annotated (Prepared by the Congressional Research Service, Library of Congress. Co-Editors: Johnny H. Killian, George A. Costello and Kenneth R. Thomas. Contributors: David M. Ackerman, Henry Cohen and Robert Meltz. 2002 Edition with updates from the 2010 Supplement.)

“Open Fields”.—In Hester v. United States,285 the Court held that the Fourth Amendment did not protect “open fields” and that, therefore, police searches in such areas as pastures, wooded areas, open water, and vacant lots need not comply with the requirements of warrants and probable cause. The Court’s announcement in Katz v. United States286 that the Amendment protects “people not places” cast some doubt on the vitality of the open fields principle, but all such doubts were cast away in Oliver v. United States.287 Invoking Hester‘s reliance on the literal wording of the Fourth Amendment (open fields are not “effects”) and distinguishingKatz, the Court ruled that the open fields exception applies to fields that are fenced and posted. “[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.”288 Nor may an individual demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside.289 Even within the curtilage and notwithstanding that the owner has gone to the extreme of erecting a 10-foot high fence in order to screen the area from ground-level view, there is no reasonable expectation of privacy from naked-eye inspection from fixed-wing aircraft flying in navigable airspace.290 Similarly, naked-eye inspection from helicopters flying even lower contravenes no reasonable expectation of privacy.291 And aerial photography of commercial facilities secured from ground-level public view is permissible, the Court finding such spaces more analogous to open fields than to the curtilage of a dwelling.292

285 265 U.S. 57 (1924). See also Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 86 (1974).

286 389 U.S. 347, 353 (1967). Cf. Cady v. Dombrowski, 413 U.S. 433, 450 (1973) (citing Hester approvingly).

287 466 U.S. 170 (1984) (approving warrantless intrusion past no trespassing signs and around locked gate, to view field not visible from outside property).

288 Id. at 178. See also California v. Greenwood, 486 U.S. 35 (1988) (approving warrantless search of garbage left curbside “readily accessible to animals, children, scavengers, snoops, and other members of the public”).

289 United States v. Dunn, 480 U.S. 294 (1987) (space immediately outside a barn, accessible only after crossing a series of “ranch-style” fences and situated one-half mile from the public road, constitutes unprotected “open field”).

290 California v. Ciraolo, 476 U.S. 207 (1986). Activities within the curtilage are nonetheless still entitled to some Fourth Amendment protection. The Court has described four considerations for determining whether an area falls within the curtilage: proximity to the home, whether the area is included within an enclosure also surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to shield the area from view of passersby. United States v. Dunn, 480 U.S. 294 (1987) (barn 50 yards outside fence surrounding home, used for processing chemicals, and separated from public access only by a series of livestock fences, by a chained and locked driveway, and by one-half mile’s distance, is not within curtilage).

291 Florida v. Riley, 488 U.S. 445 (1989) (view through partially open roof of greenhouse).

292 Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (suggesting that aerial photography of the curtilage would be impermissible).

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