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Criminal Procedure - Outline Part 3

By Collin B. Hardee

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"Open Fields" Doctrine
  • Rule: open fields beyond the curtilage are NOT protected by the 4th Amendment
  • 4th A free zone = NOT a search in this zone.
  • Hester v. United States (US. 1924): First case to articulate the Open Fields Doctrine, allowing warrantless searches of outdoor areas not included within the curtilage of a home.
  • Oliver v. United States (U.S. 1984): even when a field is obstructed by fences/woods, the entrance of property gated and locked with “No Trespassing” signs posted, the field may be entered and searched without probable cause or a warrant
    • "Open field" "may include any unoccupied or undeveloped area outside of the curtilage"
    • C/L Origin: Rule founded on explicit language of 4th A. because an open field is not a "person, house, paper, or effect"
  • *Trick is determining what is an “open field”?
    • Look @ curtilage factors
    • Curtilage = “house” under 4th A.

Curtilage a person’s “house” does not include all of a person’s residential real estate, merely the actual house and the house’s curtilage, i.e., the area immediately surrounding and associated w/ the home

  • Curtilage factors: (from Dunn)
    1. Proximity of the area claimed to be the curtilage of the home
    2. Whether the area is included within an enclosure surrounding the home
    3. The nature of the uses to which the area is put
    4. The steps taken by the resident to protect the area from observation by people passing it
Aerial Surveillance/Observation of a Curtilage (When Police Use an Aircraft to View the Defendant’s Property)

Assuming the aircraft is in public, navigable, airspace, anything the police can see with the naked eye from that airspace falls within the “Plain View” Doctrine.

  • California v. Ciraolo (U.S. 1986): flying plane over a backyard to see marijuana growing behind a 10-foot fence is NOT a "search"
    • “The mere fact that an individual has taken measures to restrict some views of his activities does not preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible. . . Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed.”
  • Florida v. Riley (U.S. 1989): flying helicopter over a marijuana greenhouse in Riley's backyard is NOT a "search" in accordance with Ciraolo. Applies Ciraolo to helicopters. Limitations of Riley: Flying lower than allowed by FAA regulation & Interfering with use of the property
    • Airplane flying 1,000 feet over backyard. (like Ciraolo) = NOT search.
      • Key: 1,000 feet or above is normal commercial air flying height
      • Height requirement of airplanes does not apply to helicopters. They can fly lower.
    • Copter flying 50 ft over farmer’s field = NOT search because “open field.” Different result if was backyard.
    • Current issue: DRONES. No height rules right now. Not interfering with use of property. Katz test really bad if start flying drones over everyone’s backyards.
Rifling Through Garbage: Surveillance Outside the Curtilage, Near a House, But NOT in an Open Field

California v. Greenwood (1988) → a person does not have a reasonable expectation of privacy in garbage left outside the curtilage of a home for trash removal – what a person knowingly exposes to the public, even in his own home or office, is NOT a subject of 4th Amendment protection

  • The OBJECTIVE prong of the Katz Test is NOT satisfied → an individual places garbage at the curb for the express purpose of conveying it to a third party (i.e., the trash collector)
    • Police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public
Trash and Other Abandoned Property
  • Rule → trash or other abandoned property will normally NOT be material as to which the owner has an objectively reasonable expectation of privacy, therefore, when a person puts trash out on the curb to be picked up by the garbage collector, the police MAY search that trash without a warrant (California v. Greenwood)
  • Result → if police suspect (even without probable cause) that a person may have committed a crime evidence of which might be contained in his trash, they can simply inspect the trash themselves, or request the trash collector to turn that person’s trash over to them (regardless of the circumstances)
Decision That Actually Finds a Search

Bond v. US (2000) → though a bus passenger clearly expects that his bag may be handled, he does not expect that the other passengers or bus employees will feel the bag in an exploratory manner, therefore, an agent’s physical manipulation of an individual’s bag violates the 4th Amendment

Katz and the New Technology

Plain-View Doctrine: even where the devices used to gain a view of the D’s property are somewhat more sophisticated than a flashlight (Texas v. Brown) or binoculars (Johnson v. State), SC will often uphold their use under the “Plain View” Doctrine if two (2) conditions are met:

  1. The view takes place from a location where the police have a right to be (e.g., public property); and
  2. The info obtained could have been gotten from “plain view” surveillance executed without the special device

Kyllo v. US (2001) → the government’s use of a thermal imager constituted a search b/c there is a minimum expectation of privacy that must be maintained – to withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the 4th Amendment

  • Kyllo Sense-Enhancing Technology Test → to ensure the “preservation of that degree of privacy against government that existed when the 4th Amendment was adopted,” “obtaining by sense-enhancing technology any info regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’ . . . constitutes a search – at least where the technology in question is NOT available in general-public use.”
  • Limitations of Kyllo Test
    1. Interior of Home ONLY – court may give less protection where sense-enhancing tech is used in a non-residential context, e.g., workplace or public spaces
    2. Resident or Owner – probably only applies where the device is used against a resident or owner of the home in question
    3. Not in General Public Use – as particular tech becomes more broadly used by the civilian population, the individual’s privacy interest in being shielded from the tech diminishes
    4. Police CAN Get a Warrant – Rule does not say that the police CAN’T use sense-enhancing tech, merely that the device’s use constitutes a search, requiring a warrant
Electronic “Beeper” on Car

US v. Knotts (1983) → the use of a beeper did NOT violate the driver’s reasonable expectation of privacy in his movements over the road

  • A driver voluntarily conveys to anyone who watches him the fact that he is traveling over particular roads in a particular direction to a particular destination
  • “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements form one place to another.” → since the beeper merely supplied the same info that could have been obtained through ordinary plain view surveillance of such no-expectation-of-privacy movements, no 4th Amendment violation could have occurred.
    • NOTE: the beeper was placed into the can before the suspect purchased it so the government did not have to trespass in order to plant it; as well as it gave info that the police COULD HAVE learned through ordinary “plain view” surveillance (See US v. Karo (1984) – police placed a beeper in a can of ether, and then tracked the beeper in a way that allowed them to learn that the beeper was in a particular house; court held that the monitoring of the beeper when it was in the house WAS a 4th Amendment violation b/c use of the beeper revealed a critical fact about the interior of the premises, a fact that could not have been visually verified by a member of the public.)
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