Fourth Amendment: What Is a Search? More Specifics

The Fourth Amendment protects the people’s “persons, houses, papers, and effects.” While this language is quite broad, it does not include everything someone might possess or wish to protect from intrusion. For example, if one owns agricultural land far from any “house,” that land is not a person, a house, a paper, or an effect. Police searches of such land, therefore, are not “searches” regulated by the Fourth Amendment. The Court has attempted to define the barrier separating the “curtilage” (an area near a house that is treated as a “house” for Fourth Amendment purposes) from the “open fields” (which enjoy no Fourth Amendment protection).

Notes, Comments, and Questions  

In both Oliver and Dunn, police walked onto someone’s land without permission. In describing the “open fields doctrine,” the Oliver Court stated: “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.” 

Consider whether that statement is truly accurate. Is it truly lawful for police to wander uninvited on the open fields of suspects? Perhaps it would be more accurate to state: “Police should not do this, but if they do, the Fourth Amendment has nothing to say about it.” The Hester case cited by the Court in Oliver may provide a clue. In the syllabus, the Court describes police witnesses who “held no warrant and were trespassers on the land.” By definition, trespassers are violating the law. We do not call it a “trespass” when someone walks on the property of another to visit as an invited guest, or to knock on the door and leave literature about religion or politics, or to execute a valid search warrant. 

If officers who find useful (and admissible) evidence while trespassing in the open fields of suspects are breaking the law, should they be punished? Is it plausible to believe that they will be? If, as seems more likely, police departments would laud such behavior rather than condemning it, does that raise questions about the sensibility of the open fields doctrine? 

At common law, the crimes of arson and burglary (which are both crimes against the dwelling), defined “house” as both a dwelling house and buildings located within the curtilage. Fourth Amendment law essentially imports this principle. 

So what is curtilage? Curtilage is: “The land or yard adjoining a house, usually within an enclosure. Under the Fourth Amendment, the curtilage is an area usually protected from warrantless searches.” Black’s Law Dictionary (11th ed. 2019). 

Because the Court treats the curtilage surrounding a home as part of a “house” for Fourth Amendment purposes, police officers normally cannot walk on to curtilage and look around with neither permission nor a warrant. In response to this restriction, police have flown over houses and curtilage, using their eyes and cameras to gain information relevant to criminal investigations. 

Notes, Comments, and Questions  

Supreme Court precedent strongly suggests that as long as police pilots obey the law (such as FAA regulations on minimum altitudes), the “reasonable expectation of privacy test” will not prevent police from flying over a home.  

Diligent defense counsel may wish to examine whether state or local laws restrict overflights more strictly than FAA regulations. Especially as remote-controlled helicopters (a.k.a. “drones”) become widely available at low prices, police can easily fly camera-toting aircraft over the homes of suspects. If a municipality prohibits such conduct by the general public, then perhaps police who violate local ordinances will also violate reasonable expectations of privacy. 

What are the limits for observations from the air? Consider an officer who uses a drone equipped with a video camera to monitor a suspect through his bedroom window. There is nothing to suggest that drones flying in neighborhoods are sufficiently rare; a drone with streaming video can be purchased for about $60 at Target. Search or no search? Why or why not? Does the outcome change if there is a local ordinance limiting the public’s use of drones to public spaces? 

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In the next case, the Court turned its attention to the use of dogs during traffic stops, in which motorists are detained involuntarily.