{ 4th Amendment cont.

Searches of Homes, Curtilage, Open Fields

The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

4th amendment

Subjective expectation of Privacy

Opinion of a person that a certain location or situation is private.

REASONABLE expectation of privacy.

What a normal person would expect to be private.

If a police officer can lawfully view the activity in your home (through a window, looking over a fence), you do not have a right to privacy

Do you have a Right to Privacy? 2-Part Test

Home

Highest expectation of privacy.

Warrant almost always required.

Home

Exceptions to warrant requirement.

Plain View

Hot-Pursuit of Fleeing Felon

Consent

Emergency

Exceptions

Curtilage

Curtilage - outdoor area immediately surrounding the home.

Think back and front yard area, sometimes within fence.

Curtilage

Courts have treated this area as an extension of the house and as such subject to all the privacy protections afforded a person’s home.

Warrant is typically required

Curtilage

An area is curtilage if it "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life.“

Proximity of the area. (How close to home)

Included within an enclosure surrounding the home (Fence)

The nature of the use (Eating, Playground, Shed)

Steps taken by the resident to protect the area from observation by people passing by. (Privacy Fence)

Curtilage

Open Field

Open fields are not a "constitutionally protected area, because they cannot be construed as "persons, houses, papers, or effects.“

Think pasture, farmland, or empty lot.

Open Fields

Privacy expectation regarding an open field is unreasonable:

Open fields do not provide for “intimate activities” that the 4th Amendment is intended protect.

Open Fields

You Be the Judge

Riley lived in a mobile home located on five acres of rural property. A greenhouse was located 10 to 20 feet behind the mobile home. Two sides of the greenhouse were enclosed. The other two sides were not enclosed but the contents of the greenhouse were obscured from view from surrounding property by trees, shrubs, and the mobile home. The greenhouse was covered by corrugated roofing panels, some see-through, and some not see-through. Two of the panels, amounting to approximately 10% of the roof area, were missing. A wire fence surrounded the mobile home and the greenhouse, and the property was posted with a "DO NOT ENTER" sign. This case originated with an anonymous tip to the Sheriff's office that marijuana was being grown on Riley’s property. When an investigating officer discovered that he could not see the contents of the greenhouse from the road, he circled twice over Riley’s property in a helicopter at the height of 400 feet. With his naked eye, he was able to see through the openings in the roof and one or more of the open sides of the greenhouse and to identify what he thought was marijuana growing in the structure. Riley was charged with possession of marijuana under Florida law.

Riley moves to have this evidence excluded from trial.

Was this an unlawful search of Riley’s home or curtilage without a warrant?

Did Riley have a reasonable expectation of privacy?

Case # 1 on Your Docket

Home

Greenhouse

Wire Fence

Sign

NO UNLAWFUL SEARCH

Riley no doubt intended and expected that his greenhouse would not be open to public inspection, and the precautions he took protected against ground-level observation. Because the sides and roof of his greenhouse were left partially open, however, what was growing in the greenhouse was subject to viewing from the air.

Riley could not reasonably have expected that his greenhouse was protected from public or official observation from a helicopter had it been flying within the navigable airspace for fixed-wing aircraft.

The Outcome

On February 14,2012, Omaha Police received an anonymous telephone tip that marijuana was growing in Steve’s backyard. Police were unable to observe the contents of Steve’s yard from ground level because of a 6-foot outer fence and a 10-foot inner fence completely enclosing the yard. Later that day, Officer Brown, who was assigned to investigate, secured a private plane and flew over Steve’s house at an altitude of 1,000 feet, within navigable lawful airspace; he was accompanied by Officer Rodriguez. Both officers were trained in marijuana identification. From the overflight, the officers readily identified marijuana plants 8 feet to 10 feet in height growing in a 15- by 25-foot plot in respondent's yard; they photographed the area with a standard 35mm camera.

Steve moves to have this evidence excluded from trial.

Was this an unlawful search of Steve’s home or curtilage without a warrant?

Did Steve have a reasonable expectation of privacy?

Case #2 on Your Docket

Steve’s House

NOT AN UNLAWFUL SEARCH

“Clearly — and understandably — Steve has met the test of manifesting his own subjective intent and desire to maintain privacy as to his unlawful agricultural pursuits. It can reasonably be assumed that the 10-foot fence was placed to conceal the marijuana crop from at least street-level views.”

However, police officers are not required to shield their eyes when passing by a home on place the public has access to.

“Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed. We readily conclude that Steve’s expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.”

The Outcome

Officer William suspected that marijuana was being grown in the home belonging to Danny Kyllo.. Indoor marijuana growth typically requires high-intensity lamps. In order to determine whether an amount of heat was emanating from Kyllo’s home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Officer William used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects and people emit but which is not visible to the naked eye. The imager converts radiation into images based on relative warmth—black is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. The scan of Kyllo's home took only a few minutes and was performed from the passenger seat of Officer William’s vehicle across the street from the front of the house and also from the street in back of the house. The scan showed that the roof over the garage and a side wall of Kyllo’s home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes. Officer William’s concluded that Kyllo was using halide lights to grow marijuana in his house, which indeed he was. The officer found an indoor growing operation involving more than 100 plants.

Kyllo moves to exclude this evidence from trial.

Was this an unlawful search of Kyllo’s home or curtilage without a warrant?

Did Kyllo have a reasonable expectation of privacy?

Case #3 on Your Docket

What Officer William saw in Kyllo’s home.

AN UNLAWFUL SEARCH!

Even though the police officer did not physically enter the home, he was able to view everything that happened in the home, even the intimate things that people inside might be doing.

The officer uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion.

This search is presumptively unreasonable without a warrant.

The Outcome

1. Probable Cause (reasonable belief based upon all the facts that a crime is being or has been committed)

2. Sworn Affidavit by an Officer

3. Specifying the place and things or people to be searched

Requirements of a Search Warrant