Title: Search and Seizure: Open Fields and Woods, Curtilage, and review of Consent
1Search and SeizureOpen Fields and Woods,
Curtilage,and review of Consent
Mike Steeves
- La Junta Police Department
- La Junta, CO 81050
2Lesson Objectives
- To introduce you to the concepts of search
and reasonable expectation of privacy
understand the requirements for a valid consent
to search understand the Open Fields and
Woods Doctrine.
3Significant cases Oliver vs United States
(1984) United States vs Dunn (1987) Hester vs
United States (1924)
4A person purchases a 50 acre spread down in
Higbee Valley. This parcel has a stand of elm
trees in the middle. He then builds his house
there. He repairs the barbed wire fencing that
was put up some time ago. He posts the land,
liberally, by installing No Trespassing signs at
close interval around the property. He puts in a
cattle guard on the entrance road, and then gates
the guard to boot.
5Many people would recognize a subjective
expectation of privacy on this land parcel.
6Would society (think Federal, now, not rural
Colorado) recognize this expectation of privacy
as reasonable?
7Probably not
8USSC holds that open fields and woods despite
fencing and natural barriers, do not create a
reasonable expectation of privacy - although they
certainly create civil and criminal issues of
trespass. You could commit trespass, but not a
violation of Fourth Amendment rights.
9If that is so, then your presence there does not
constitute a search under the meaning of the
Fourth Amendment
10That area which immediately surrounds a home is
called the curtilage.
11Much different concept than Open Woods and
Fields.
12Normally the same as yard.
13Curtilage has Fourth Amendment protections
similar to those applying to the house.
14The maximum protections of the Fourth apply to
the inside of the home. Curtilage protections are
only slightly less.
15So the, what constitutes curtilage?
16Proximity to the home. The closer it is, the more
likely it is curtilage.
17Enclosures associated with the home. Privacy
screens, interior fences that enclose the yard of
the home, thick shrubs. Barriers that have been
created to define the yard are usually indicators
of curtilage
18Nature and use of the area. If it is used for
purposes normally associated with family life,
then it is likely to be curtilage.
19Common entrance ways might intrude into or onto
the curtilage, your presence there is not
unreasonable. Generally, if the presence of the
uninvited public is not considered unusual, then
neither is your presence.
20Open Fields and Woods and Curtilage are not
concrete concepts. The totality of circumstances
must be considered in evaluating whether or not
an intrusion is unreasonable.
21Outbuildings
Storage sheds, barns, tool sheds, livestock pens
22If locked and secured, then entrance constitutes
a search.
23If a window or door is left unsecured, then a
look into the building from the window or door
would not be unreasonable, and it would not be a
search.
24Abandoned property
25is not under the purview of the Fourth
Amendmentand there is no reasonable expectation
of privacy
26Signs of the property being abandoned are usually
a matter of common sense.
27Garbage outside a fenced yard is
abandoned. Garbage inside a fenced yard
probably isnt...yet.
28You can solicit an abandonment of property by
obtaining a positive denial of ownership and
interest in the item (the bag of dope trick). Be
careful of baggage in the care of a common
carrier. You still need to make sure no one
claims it.
29A suitcase left in a train depot, which no one
claims, can be considered as abandoned.
30If the abandonment is caused by unlawful police
action, any evidence located will be suppressed.
31Real Estate as abandoned property
32Only if it is clearly unoccupied Only if it
shows obvious signs of non-use
33If a person has checked out of a motel or hotel
room, taking his belongings with, then he has
abandoned that room. You may search the room
with the permission of management.
34However...
A person who has held his room a few hours past
checkout has not abandoned the room, despite what
management might say. A reasonable expectation of
privacy may still exist.
35For rentals or leased apartments or houses, the
renter must have clearly vacated the apartment,
or have been evicted by lawful authority and
process.
36Vehicles as abandoned property
37When an officer can look into the vehicle and
determine from the totality of circumstances,
that the vehicle has been abandoned by whoever
once had a reasonable expectation of privacy in
that vehicle. Common sense. Rental cars?
38Consent
39Asking for consent to search property is asking a
person to give up the right to a reasonable
expectation of privacy
40Consent must be voluntary. Coerced consent is
not valid
41You cannot threaten a person with police action
in order to obtain consent
42Im going to apply for a search warrant if you
dont consent. is usually OK
Im going to get a search warrant and search
anyway. is usually considered coercive
43Consent may be obtained from the person who has a
reasonable expectation of privacy in the object
or premises to be searched
44Spousal consent. Parental consent.
45Landlords generally cannot give consent to search
a property they have rented to someone else. You
must acquire consent from the tenant.
46You, as a homeowner, generally cannot consent to
the search of a houseguests room. The houseguest
must consent (Minnesota vs Olson, 1990).
47Language of the Consent
48A choice of options - Yes, No, or limited
search consent, must be readily apparent.
49Ambiguous language -can I look in your car?
does not clearly indicate an intent to search.
50You do not have to inform the person of his right
to refuse.
51You do not need a written consent form (unless
department policy suggests otherwise).
But its easier to prove...
52Set the scope...if you are looking for a
large-screen TV...also specify that you are
looking for the remote control. You cant look in
glove boxes or other small areas for the TV.
53Consent is revocable. It may be limited. If so,
you must abide by it.
54Questions?