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ONE’S CASTLE IS PARTICULARLY PROTECTED

One’s home is accorded a heightened expectation of privacy. See U.S. v. Ross, 456 U.S. 798, 822, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). “[T]he most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion.” U.S. v. Ross, 456 U.S. at 822.

“A person’s home holds a favored position in the list of those areas which are protected from unreasonable searches and seizures. Different considerations apply to movable property such as boats and motor vehicles. The high degree of judicial sanctity which the courts have accorded to dwellings is based upon the concept of privacy and the right to be left alone. The security of homes should not be left to the sole discretion of police officers. The decisions have repeatedly stressed and emphasized the concept that the underlying purpose of the Fourth Amendment is to protect and shield citizens from unwarranted intrusions into their private domain.” U.S. v. Davis, 423 F.2d 974, 977 (5th Cir. 1970). See also U.S. v. Williams, 630 F.2d 1322 (9th Cir. 1980); U.S. v. Cadena, 588 F.2d 100, 101 (5th Cir. 1979); U.S. v. Williams, 589

F.2d 210, 214 (5th Cir. 1979); U.S. v. Agapito, 620 F.2d 324, 331 (2d Cir. 1980).

“To argue, as the Government does, that there is probable cause to search a residence simply because there is no better place in which to be secure and private offends the spirit as well as the letter of the law. The Fourth Amendment was intended to shield an individual’s private residence from government intrusion not to constitute an excuse to invade the same. The approach urged by the Government would exploit that constitutional shield by suggesting that this heightened expectation of privacy accorded one home by the Constitution should provide an excuse to invade that privacy. The fact that we recognize a heightened expectation of privacy in the home cannot logically constitute the reason for invading that property.” U.S. v. Gant, 759 F.2d 484 (5th Cir. 1985). See also Miller v. U.S., 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332, 1337 (1958). “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his forces dare not cross the threshold of the ruined tenement.” Miller v. U.S., 357 U.S. at  307.

Segura v. U.S., 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). “[T]he sanctity of the home is not to be disputed”. Steagald v. U.S., 451 U.S. 204, 213, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573, 601, n. 54, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); U.S. v. Williams, 630 F.2d 1322, 1326 (10th Cir. 1980) U.S. v. Freire, 710 F.2d 1515, 1519 (11th Cir. 1983) [“home is a haven of privacy”].

The Supreme Court reiterated “the strong expectation of privacy associated with a home,” noting that “[E]xpectations of privacy are particularly strong in private residences.” Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984).

“We frequently have noted that privacy interests are especially strong in a private residence.” Michigan

  1. Clifford, 464 U.S. at 296. See also Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984) [neither murder scene nor medical emergency reduces defendant’s expectation of privacy. Must obtain warrant to search home].

THE “CURTILAGE” SURROUNDING A HOME IS INCLUDED WITHIN THE AREA OF HEIGHTENED PROTECTION

 This increased protection afforded to houses by the Fourth Amendment “has never been restricted to the interior of the house”, but includes the “area immediately surrounding the dwelling”, known as the “curtilage”, as well. Wattenberg v. U.S., 388 F.2d 853, 857 (9th Cir. 1968).

See also Fullbright v. U.S., 392 F.2d 434-35 (10th Cir. 1968); U.S. v. Davis, 423 F.2d 974, 977 (5th Cir. 1970);

Fixel v. Wainwright, 492 F.2d 480, 483 (5th Cir. 1974).

“The protection afforded by the Fourth Amendment, insofar as houses are concerned, has never been restricted to the interior of the house, but has extended to open areas immediately adjacent thereto. The differentiation between an immediately protected area and an unprotected open field has usually been analyzed as a problem of determining the extent of the ‘curtilage’.” Wattenberg v. U.S., 388 F.2d at 857.

In Fullbright v. U.S., 392 F.2d 432, 434-35 (10th Cir.), cert. denied, 393 U.S. 83 (1968_) the court noted that:

“The word ‘houses’ in the Fourth Amendment has been extended by the court to include the curtilage. If the investigators had physically breached the curtilage there would be little doubt that any observations made therein would have been proscribed. But observations from outside the curtilage of activities within are not generally interdicted by the Constitution.” Fullbright v. U.S., 392 F.2d at 434-35.

“The sacredness of a person’s home and his right of personal privacy and individuality are paramount considerations in our country and are specifically protected by the Fourth Amendment. The Fourth Amendment’s protection, however, extends further than just the walls of the physical structure of the home itself. The area immediately surrounding and closely related to the dwelling is also entitled to the Fourth Amendment’s protection. When officers have physically invaded this protected area either to seize evidence or to obtain a view of illegal activities, we have readily condemned such an invasion as violative of the Fourth Amendment.” Fixel v. Wainwright, 492 F.2d at 483. See also U.S. v. Certain Real Property located at 987 Fisher Road, Grosse Point, Mich., 719 F. Supp. 1396 (E.D.Mich., 1989) [the search of garbage placed for collector in backyard and within a home’s curtilage is protected by the Fourth Amendment); U.S. v. Whaley, 781 F.2d 417, 419-21 (5th Cir. 1986).

Plain view, without exigency, does not justify a warrantless entry onto the curtilage of a residence to investigate what “appeared to be marijuana”, and the officer’s ignorance of the warrant requirement does not raise “good faith”. But see U.S. v. Emmens, 893 F.2d 1292 (11th Cir. 1990) [agents could lawfully enter private hangar on residential curtilage as same was, in this case, functional equivalent of border].

Recently, the Supreme Court affirmed this principle when it held a dog sniff at the door of a house where police suspected marijuana was being grown was a search. See Florida v. Jardines, 133 S. Ct. 1409 (2013).

Justice Scalia authored the 5-4 opinion of the Court, in which, Justices Thomas, Ginsburg, Sotomayor, and Kagan joined. Justice Kagan filed a concurring opinion, joined by Justices Ginsburg and Sotomayor. Justice Alito penned the dissent, joined by Justices Kennedy, Breyer and the Chief Justice.

As in U.S. v. Jones, 132 S. Ct. 945 (2012), the majority is divided as to the reasoning that should be employed to answer the question posed. Justice Scalia answers the question of “whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents fo the home is a ‘search’ within the meaning of the Fourth Amendment,” by noting that the Fourth Amendment establishes a simple baseline, that “[w]hen ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a search within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.” Jardines, 133 S. Ct. at 1414 (quoting U.S. v. Jones, 132 S. Ct. 945, 950 n. 3 (2012)).

Justice Kagan notes in her dissent that the Court decided the case under the property rubric, and, in her judgment, the Court, “could just as happily have decided it by looking to Jardines’ privacy interests.” Id. at 1418 (Kagan, J., concurring). Justice Kagan notes that police officers approached the door of Jardines with a “super- sensitive instrument” which they used to detect things inside that otherwise would have remained undetected. Id. (Kagan, J., concurring). “Was this activity a trespass? Yes, as the Court holds today. Was it also an invasion of privacy? Yes that as well.” Id. (Kagan, J., concurring).

Justice Alito begins his dissent in Jardines, much like his dissent in Jones, by describing the reasoning employed by the Court’s majority as deciding an important Fourth Amendment issue by using “a putative rule of trespass law.” Id. at 1420 (Alito, J., dissenting). Justice Alito notes that the custom of allowing members of the public to approach a front door extends to friends, relatives, and delivery persons, as well as solicitors and peddlers who would likely be unwelcomed. Id. (Alito, J., dissenting). As to the issue of privacy noted by the concurrence, Justice Alito explains that “[a] reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human. Id. at 1421 (Alito, J., dissenting). Nonetheless, the holding remains, “[t]he government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.” Id. at 1417– 18.

EVEN GREATER EXPECTATION OF PRIVACY IN ONE’S PERSON THAN ONE’S HOME

 Courts have indicated there may be an even greater expectation of privacy in one’s person, than one’s home [at least with respect to safety inspections]. U.S. v. Roundtree, 420 F.2d 845, 850 n.11 (5th Cir. 1969); Camara v. Municipal Court, 387 U.S. 523, 528, 537, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

“[T]he Supreme Court in Camara indicated that it considers a personal search to be a greater invasion of privacy (protection of which is the ‘basic purpose’ of the Fourth Amendment…) than other types of searches such as a housing inspection (‘a relatively limited invasion of the urban citizen’s privacy…).” U.S. v. Roundtree, 420 F.2d at 850 n.11.

REASONABLE EXPECTATION OF PRIVACY

 U.S. v. Taborda, 635 F.2d 131 (2d Cir. 1980) [ telescopic view into defendant’s home); People v. Fly, 110 Cal.Rptr. 159, 159 (Cal. App. 1973) [looking with aid of telescope through heavy foliage into defendant’s backyard); U.S. v. Kim, 415 F. Supp. 1252, 1256 (D.Ha. 1976) [use of high powered visual aids such as binoculars]; People v. Arno, 153 Cal.Rptr. 624 (Cal.App. 1979) [binoculars view of building]; Philan v. Superior Court, 88 Cal.App.2d 189 (Cal.App. 1979) [binocular search of garden]; Kolb v. State, 532 S.W.2d 87, 90 (Tex.Crim.App. 1976) [use of flashlights to see suitcases and garbage bags in darkened locker]; Gonzales v. State, 588 S.W.2d 355, 360 (Tex.Crim.App. 1979) [private property immediately adjacent to house is entitled to the same protection against unreasonable search and seizure as the home itself]; State v. Rowe, 422 S.2d 75, 76 (Fla. 1982) [“existence of a chain link fence” and fact “marijuana was planted in the midst of a vegetable garden “is sufficient”]; Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974); U.S. v. Thomas, 757 F.2d 1359 (2d Cir. 1985) [that a defendant has a legitimate expectation of privacy that his closed apartment will remain private and a dog sniffing at his door from the outside is an invasion of that privacy]; National Organization for the Reform of Marijuana Laws v. Mullen, 608 F. Supp. 945 (D. Cal. 1985) (state and federal officials involved in California’s “Campaign Against Marijuana Planting” enjoined from entering by foot, motor vehicle or helicopter any private property other than open fields without a warrant obtained on probable cause]. See also People v. Sabo, 185 Cal.App.3d 845 (1986); Wheeler v. State, 659 S.W.2d 381 (Tex.Cr.App. 1983) [occupants of farm exhibited a reasonable expectation of privacy in an opaque greenhouse on fenced and posted farm where the only openings were 2″ louvers through which officers obtained a view with a high powered telephoto lens after having been unsuccessful for five weeks using helicopters, aerial photography, infrared night vision scopes, and high-powered telescopic lenses].

“This record contains ample evidence that appellants sought to preserve the greenhouse, and its contents, as private. They located their greenhouse on brushy, rural property in Lampasas County, one mile from the nearest public road, and at least 100 yards from the nearest vantage point on the neighboring property. The greenhouse itself was opaque, with ventilation provided for by a four-foot exhaust fan covered with slat-like louvers. There was a fence around the greenhouse and another fence around the entire tract of land. The outer fence was locked and posted with signs. These are numerous manifestations of an “actual (subjective) expectation of privacy.” Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

As to the second prong of the Smith and Katz analysis, the State maintains that appellants lost their subjective expectation of privacy by exposing ‘activities and things thereon to public view’, …

On the facts of this case, such reliance is misplaced. In fact, it was appellants’ very well manifest expectation of privacy which raised suspicion to begin with. The only thing that was in ‘plain sight’ of the officer’s initial observation, aided by a telescope, was an opaque greenhouse with “green growing plants”. Later, an officer with a night vision telescope, and still later aerial surveillance, observed nothing in plain sight, or out of the ordinary. Despite this, the investigation continued specifically to observe the contents of the greenhouse until the affiant, armed with a 600 millimeter lens, caught a glimpse through the fan louvers of what he observed to be growing marijuana plants.

Here, the technology employed, its purpose, together with the concerted effort to view what had tenaciously been protected as private, constitutes a search.  As we stated in Long:

A search means, of necessity, a quest for, a looking for, or a seeking out of that which offends the law. This implies a prying into hidden places for that which is concealed. It is simply not a search to observe that which is open to view. Long v. State, 532 S.W.2d 591, 593 (1975).

The crucial difference between the instant case and Long, Turner, and Johnson is the manifestation of privacy exhibited by appellants, and the efforts undertaken to overcome that privacy.”

Wheeler v. State, 659 S.W.2d at 390.

“A person camping in Colorado on unimproved and apparently unused land that is not fenced or posted against trespassing, and in the absence of personal notice against trespassing, has a reasonable expectation of privacy in a tent used for habitation and personal effects therein.” See Colorado v. Schafer, 946 P.2d 938 (Colo. 1997) see also State v. Butterworth, 737 P.2d 1297 (Wash.App. 1987) [greater expectation of privacy in unlisted telephone number, therefore warrant required to obtain same from phone company].

NO REASONABLE EXPECTATION

 In U.S. v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), the defendant sought to suppress evidence seized by government officers who, without a search warrant, entered onto defendant’s land to view the insides of a barn that they suspected contained illegal chemicals. In suppressing the seized evidence, the Fifth Circuit noted that:

“Dunn took a number of steps to preserve privacy. Some result from the layout of his ranch and others from his affirmative acts. These steps, with different applications and different weights, all factor into the final conclusion. The barn was located in a clearing surrounded by woods on a 198 acre tract. The ranch was circled by a perimeter fence. The ranch house and buildings were at the end of a private drive approximately one-half mile from a public road. The entrance to the private driveway was secured by a locked chain. The barn was not visible from the public road or perimeter fence. The contents of the barn could not be seen from aerial observation, nor were the contents visible from the ground unless one approached the barn, penetrated its encircling fence, walked under its overhang and stood next to its fishnet front covering. Even then, entry could be made only by force or the hurdling of wooden gates which were locked.

Considering the location, type and placement of the structure, and the other steps Dunn took to limit access to the barn, we find that Dunn had a reasonable expectation of privacy in his barn and its contents. Accordingly, the fourth amendment abrogates the warrantless intrusion by agent Gospodarek and officer Fite on the night of November 5, 1980. That search required a search warrant.” U.S. v. Dunn, 766 F.2d at 885-86.

Notwithstanding Dunn’s numerous steps to preserve his privacy, the Supreme Court reversed the Fifth Circuit holding that:

“Curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by… these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration – whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection. Applying these factors to respondent’s barn and to the area immediately surrounding it, we have little difficulty in concluding that this area lay outside the curtilage of the ranch house.

[T]he 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. Id., at 180, n.

  1. It follows that no constitutional violation occurred here when the officers crossed over respondent’s ranch-style perimeter fence, and over several similarly constructed interior fences, prior to stopping at the locked front gate of the barn. As previously mentioned, the officers never entered the barn, nor did they enter any other structure on respondent’s premises. Once at their vantage point, they merely stood, outside the curtilage of the house and in the open fields upon which the barn was constructed, and peered into the barn’s open front. And, standing as they were in the open fields, the Constitution did not forbid them to observe the phenyl acetone laboratory located in respondent’s barn. This conclusion flows naturally from our previous decisions.” U.S. v. Dunn, 480 U.S. 294, 301-04, 107 S.Ct. 1134, 94 L.Ed.2d 326, 334-6 (1987).

See also George v. State, 509 S.W.2d 347 (Tex.Crim.App. 1974) [looking through knotholes in backyard fence OK]; California v. Ciraolo, 476 U.S. 207,106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) [traveling airway at 1000 feet and observing OK]; Goehring v. State, 627 S.W.2d 159 (Tex.Crim.App. 1982) [Fourth Amendment rights not violated by aerial surveillance of an open field]; People v. Romo, 243 Cal.Rptr. 801 (Cal.App. 1st Dist. 1988); Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) [“[t]he use of a searchlight is comparable to the use of a marine glass or field glass. It is not prohibited by the Constitution”]; U.S. v. Osunegbu, 822 F.2d 472 (5th Cir. 1987) [“limited” expectation of privacy in private postal box]; U.S. v. Colyer, 878 F.2d 469 (D.C. Cir. 1989) [a passenger has no reasonable expectation of privacy from drug dog sniff in an overnight train berth on an Amtrak train].

Cases relating to inserting a key in an auto door to determine owner have gone both ways: See U.S. v. DeBardelaben, 740 F.2d 440 (6th Cir. 1984) [OK where based on “founded suspicion”]; U.S. v. Portillo-Reyes, 529 F.2d 844 (9th Cir. 1975)[requiring a warrant]. But, the owner of an automobile has no reasonable expectation of privacy in the vehicle identification number, due to a federal statutory requirement that it be visible from outside the vehicle. New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986).

“NAKED EYE” STANDARD

 U.S. v. Whaley, 779 F.2d 585 (11th Cir. 1986)[no reasonable expectation of privacy in basement of rural secluded home where internal activities were visible to the naked eye from adjoining property].

“ENHANCED” OBSERVATIONS

 A citizen’s expectation of privacy is diminished in direct proportion to advancements in the technology of surveillance equipment and devices. As a consequence, the citizenry is in need of greater, not lessor protection.

If the Katz-type inquiry regarding one’s “reasonable expectation of privacy” is to continue to be the test, then a citizen’s constitutional protection will be diminished in inverse proportion to increases in technology. One’s Fourth Amendment protection should not be dependent upon the current state of the snooper’s technology, it should be protected from same. Thus obtaining information about the interior of one’s home through thermal imaging is a search requiring a warrant. Kyllo v. U.S¸ 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). While most states have interpreted Kyllo as requiring a warrant based on probable cause, an Eighth Circuit panel has held that it only requires reasonable suspicion. U.S. v. Kattaria, 503 F.3d 703 (8th Cir. 2008)(rehearing en banc granted). However, it must be noted that the Eighth Circuit has vacated the panel’s decision and granted a rehearing en banc, but it remains to be seen whether the entire court will allow this lower standard to stand. U.S. v. Kattaria, 519 F.3d 730 (8th Cir. 2007).

VIDEO CAMERA SEARCH

 Law enforcement agents’ use of a video camera to conduct a surveillance of a fenced-in backyard constitutes an unreasonable search. “This type of surveillance provokes an immediate negative visceral reaction: indiscriminate video surveillance raises the specter of the Orwellian state”. U.S. v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987).

GARBAGE

 One may expect no privacy in garbage placed in opaque containers curbside, since this is an area open to, and commonly available for inspection by animals, kids, scavengers, snoops, or the trash collector. Furthermore, evidence discovered there may comprise probable cause to search the abode from which the garbage came. California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). But see U.S. v. Certain Real Property Located at 987 Fisher Road, Grosse Point, Mich., 719 F.Supp 1396 (E.D. Mich., 1989) [search of garbage placed for collection in backyard and within a homes curtilage is protected by the Fourth Amendment].

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