Search and Seizure: Open Fields and Woods, Curtilage, and review of Consent

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Search and SeizureOpen Fields and Woods,
Curtilage,and review of Consent
Mike Steeves

• La Junta Police Department
• La Junta, CO 81050

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Lesson 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.

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Significant cases Oliver vs United States
(1984) United States vs Dunn (1987) Hester vs
United States (1924)
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A 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.
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Many people would recognize a subjective
expectation of privacy on this land parcel.
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Would society (think Federal, now, not rural
Colorado) recognize this expectation of privacy
as reasonable?
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Probably not
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USSC 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.
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If that is so, then your presence there does not
constitute a search under the meaning of the
Fourth Amendment
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That area which immediately surrounds a home is
called the curtilage.
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Much different concept than Open Woods and
Fields.
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Normally the same as yard.
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Curtilage has Fourth Amendment protections
similar to those applying to the house.
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The maximum protections of the Fourth apply to
the inside of the home. Curtilage protections are
only slightly less.
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So the, what constitutes curtilage?
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Proximity to the home. The closer it is, the more
likely it is curtilage.
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Enclosures 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
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Nature and use of the area. If it is used for
purposes normally associated with family life,
then it is likely to be curtilage.
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Common 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.
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Open 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.
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Outbuildings
Storage sheds, barns, tool sheds, livestock pens
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If locked and secured, then entrance constitutes
a search.
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If 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.
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Abandoned property
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is not under the purview of the Fourth
Amendmentand there is no reasonable expectation
of privacy
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Signs of the property being abandoned are usually
a matter of common sense.
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Garbage outside a fenced yard is
abandoned. Garbage inside a fenced yard
probably isnt...yet.
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You 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.
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A suitcase left in a train depot, which no one
claims, can be considered as abandoned.
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If the abandonment is caused by unlawful police
action, any evidence located will be suppressed.
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Real Estate as abandoned property
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Only if it is clearly unoccupied Only if it
shows obvious signs of non-use
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If 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.
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However...
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.
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For rentals or leased apartments or houses, the
renter must have clearly vacated the apartment,
or have been evicted by lawful authority and
process.
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Vehicles as abandoned property
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When 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?
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Consent
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Asking for consent to search property is asking a
person to give up the right to a reasonable
expectation of privacy
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Consent must be voluntary. Coerced consent is
not valid
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You cannot threaten a person with police action
in order to obtain consent
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Im 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
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Consent may be obtained from the person who has a
reasonable expectation of privacy in the object
or premises to be searched
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Spousal consent. Parental consent.
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Landlords generally cannot give consent to search
a property they have rented to someone else. You
must acquire consent from the tenant.
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You, as a homeowner, generally cannot consent to
the search of a houseguests room. The houseguest
must consent (Minnesota vs Olson, 1990).
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Language of the Consent
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A choice of options - Yes, No, or limited
search consent, must be readily apparent.
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Ambiguous language -can I look in your car?
does not clearly indicate an intent to search.
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You do not have to inform the person of his right
to refuse.
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You do not need a written consent form (unless
department policy suggests otherwise).
But its easier to prove...
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Set 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.
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Consent is revocable. It may be limited. If so,
you must abide by it.
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Questions?