The open-fields doctrine (also open-field doctrine or open-fields rule), in the U.S. law of criminal procedure, is the

legal doctrine A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling ...

that a "

warrantless search A search warrant is a court order that a magistrate or judge issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. In most countries, ...

of the area outside a

property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...

owner's

curtilage In common law, the curtilage of a house or dwelling is the land immediately surrounding it, including any closely associated buildings and structures, but excluding any associated " open fields beyond". In feudal times every castle with its depen ...

" does not violate the Fourth Amendment to the United States Constitution. However, "unless there is some other legal basis for the search," such a search "must exclude the home and any adjoining land (such as a yard) that is within an enclosure or otherwise protected from public scrutiny."

History

The open fields doctrine was first articulated by the

U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

in '' Hester v. United States'', which stated that "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields." This opinion appears to be decided on the basis that "open fields are not a "constitutionally protected area" because they cannot be construed as "persons, houses, papers, reffects." This method of reasoning gave way with the arrival of the landmark case ''

Katz v. United States ''Katz v. United States'', 389 U.S. 347 (1967), was a landmark decision of the U.S. Supreme Court in which the Court redefined what constitutes a "search" or "seizure" with regard to the protections of the Fourth Amendment to the U.S. Constituti ...

'', which established a two-part test for what constitutes a search within the meaning of the Fourth Amendment. The relevant criteria are "first that a person have exhibited an actual (subjective)

expectation of privacy Expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. It is related to, but is not the same as, a ''right to privac ...

and, second, that the expectation be one that society is prepared to recognize as reasonable'." Under this new analysis of the Fourth Amendment, a search of an object or area where a person has no reasonable expectation of privacy is, in a legal sense, not a search at all. That search, therefore, does not trigger the protections of the Fourth Amendment. In '' Oliver v. United States'', the Supreme Court held that a privacy expectation regarding an open field is unreasonable:

… open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.

Distinguishing open fields from curtilage

While open fields are not protected by the Fourth Amendment, the

, or outdoor area immediately surrounding the home, may be protected. 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 (unlike a person's open fields) under the Fourth Amendment. An area is curtilage if it "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life." Courts make this determination by examining "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." Theoretically, many structures might extend the curtilage protection to the areas immediately surrounding them. The courts have gone so far as to treat a tent as a home for Fourth Amendment purposes in the past. Despite this rather broad interpretation of curtilage, the courts seem willing to find areas to be outside of the curtilage if they are in any way separate from the home (by a fence, great distance, other structures, even certain plants).'' U.S. v. Hatch'', 931 F.2d 1478 (11th Cir.), cert. denied, 502 U.S. 883 (1991).

Rejections of doctrine by state courts

Since ''Oliver'', the highest courts of

Montana Montana () is a state in the Mountain West division of the Western United States. It is bordered by Idaho to the west, North Dakota and South Dakota to the east, Wyoming to the south, and the Canadian provinces of Alberta, British Columb ...

, New York,

Oregon Oregon () is a state in the Pacific Northwest region of the Western United States. The Columbia River delineates much of Oregon's northern boundary with Washington, while the Snake River delineates much of its eastern boundary with Idaho. T ...

and

Vermont Vermont () is a state in the northeast New England region of the United States. Vermont is bordered by the states of Massachusetts to the south, New Hampshire to the east, and New York to the west, and the Canadian province of Quebec to ...

, as well as a

Washington Washington commonly refers to: * Washington (state), United States * Washington, D.C., the capital of the United States ** A metonym for the federal government of the United States ** Washington metropolitan area, the metropolitan area centered o ...

state appeals court, have held that the open-fields doctrine does not apply in those states due to their state constitutions granting greater protections to citizens (under dual sovereignty a state may grant its citizens more rights than those guaranteed in the federal constitution). Since ''Katz'' grounded privacy in persons rather than places, they argue, landowners who have taken affirmative steps to exclude the public such as fencing or posting the bounds assert a privacy interest sufficient to prevail over any warrantless search of the property where common exceptions such as

hot pursuit Hot pursuit Hot pursuit is a legal term. Hot Pursuit may also refer to: Film and television * ''Hot Pursuit'' (1984 TV series), a 1984 NBC television series * ''Hot Pursuit'' (2006 TV series), a 2006 Court TV television series * ''Hot Pursuit ...

and plain view do not apply. Some of those opinions have been critical of not only ''Oliver'' but ''Hester''. In a 2017

concurring opinion In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for their deci ...

where the doctrine did not come into play in overturning a

Wisconsin Wisconsin () is a state in the upper Midwestern United States. Wisconsin is the 25th-largest state by total area and the 20th-most populous. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake M ...

farmer's convictions for threatening two state game wardens he believed had been illegal hunters trespassing on his land, Justice Rebecca Bradley of that state's Supreme Court was highly critical of it.

''State v. Dixson''

Within a year of ''Oliver'', deputy sheriffs in Coos County, Oregon, followed up on a tip that marijuana was being grown on a local lumber company's land. After flying over the property in question and observing possible groves of the plant, then seeing a truck carrying water onto the property via a private access road, the deputies followed the road, past a cable stretched across it, signs prohibiting hunting on the property, and a felled tree, past which they had to proceed on foot to a dwelling at the center of the of forest. From the dwelling they were able to see cannabis planted away, outside the curtilage of the house. The couple who were in the process of buying the property, and a friend who was helping them grow the plants, were arrested and later convicted of manufacturing and possessing a controlled substance.; hereafter ''Dixson I''

Oregon Court of Appeals

The

appeals court A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...

reversed the conviction after hearing the appeal ''

en banc In law, an en banc session (; French for "in bench"; also known as ''in banc'', ''in banco'' or ''in bank'') is a session in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller p ...

'' in 1987. "The decisive issue is not, as the trial court apparently thought, one of federal law", Judge Thomas Young wrote for the plurality. "Whether defendant's land is constitutionally protected depends, in the first instance, not on United States Supreme Court cases interpreting the Fourth Amendment, but on the basic principles underlying the Oregon Constitution ... we need not join the federal retreat from the constitutional requirements."''Dixson I'', 1226. " es the constitution protect property as property, or is its protection of property a means to a greater end?" Young asked. The majority believed the answer was the latter, to which Young cited writings of

William Pitt, 1st Earl of Chatham William Pitt, 1st Earl of Chatham, (15 November 170811 May 1778) was a British statesman of the Whig group who served as Prime Minister of Great Britain from 1766 to 1768. Historians call him Chatham or William Pitt the Elder to distinguish ...

, who strongly supported the colonists in the years before the

American Revolution The American Revolution was an ideological and political revolution that occurred in British America between 1765 and 1791. The Americans in the Thirteen Colonies formed independent states that defeated the British in the American Revoluti ...

, in support of their understanding of this concept of privacy: "The poorest man may, in his cottage, bid defiance to all the forces of the Crown." The U.S. Supreme Court had also recognized "the indefeasible right of personal security" as what is most breached by a search in its 1886 ''

Boyd Boyd may refer to: Places Canada * Boyd Conservation Area, a conservation area located northwest of Toronto, Ontario * Boyd Lake (disambiguation) United States * Boyd County (disambiguation) * Boyd, Indiana * Boyd, Iowa * Boyd, Kansas * B ...

'' case.''Dixson I'', 1227. Oregon's Supreme Court had, since 1931, recognized this as a privacy interest, Young wrote, and as he found little guidance in federal privacy cases beyond the instant issues of those cases, the majority looked to Oregon case law as it had interpreted Article I, Section 9, of the state constitution, the counterpart to the Fourth Amendment. Young found ''Katz''s two-part test unhelpful and flawed: "The proper question, thus, is not what the defendant expects or whether that expectation is reasonable but ''whether the constitution protects the defendant''." In this case, Young concluded, the deputies had trespassed on the Dixsons' land and violated their privacy.''Dixson I'', 1228. Judge John Buttler wrote a special

concurrence In Western jurisprudence, concurrence (also contemporaneity or simultaneity) is the apparent need to prove the simultaneous occurrence of both ("guilty action") and ("guilty mind"), to constitute a crime; except in crimes of strict liability ...

for himself and two colleagues, reaching the same conclusion as the plurality but basing it on different logic which he felt was more in compliance with state Supreme Court precedent: "I would hold that, if it is necessary for the officers to trespass on property not within the curtilage in order to observe the activity or contraband in question, there is an unreasonable search and, therefore, any ensuing seizure would be unlawful." In the instant case, Buttler said that it had, as one of the deputies had testified that he and his partner had at all times believed they were on the lumber company's property and would not have entered without a warrant or permission had they known they were not.''Dixson I'', 1229–32. Judge George Van Hoomissen wrote one of two dissents, taking issue with every aspect of the plurality opinion—arguing that there was no evidence that the framers of the state constitution had intended it be read more than literally, that the appeals court was ignoring earlier precedents that had explicitly adopted the open-fields doctrine, that the defendants had not raised a trespass claim against the deputies at trial, and that courts in other states with similar constitutional language had found it compatible with the doctrine. " e plurality has hopelessly confused constitutional law with the civil and criminal law of trespass nd... substitutes its own social theories for the plain meaning of the specific constitutional text", he wrote. Van Hoomissen also noted that if the plurality needed guidance as to whether the citizens of Oregon had embraced an expectation of privacy around growing marijuana, the failure of a 1986 ballot measure that would have decriminalized the drug suggested otherwise.''Dixson I'', 1233–41. A shorter dissent was written by Judge Kurt Rossman, joined by Mary Deits. While he agreed with the plurality that the state constitution was not meant to be read in a narrowly literal manner, and with the special concurrence's criticism of the plurality's disregard of precedent, he believed that the defendants had not established that they had a reasonable expectation of privacy, since the signage that the deputies passed simply said "No hunting" rather than "No trespassing" and the felled tree merely signaled an intent to deter vehicles, not foot traffic; thus the deputies could reasonably have believed they were still on lumber company land. "It is unnecessary to sail into uncharted waters by formulating a new, untested constitutional analysis, as the plurality and special concurrence have done."''Dixson I'', 1241–42.

Oregon Supreme Court

Prosecutors appealed the case to the

Oregon Supreme Court The Oregon Supreme Court (OSC) is the highest state court in the U.S. state of Oregon. The only court that may reverse or modify a decision of the Oregon Supreme Court is the Supreme Court of the United States.W. Michael Gillette affirmed the lower court's holding that Article I, Section 9 provided broader privacy protection than the Fourth Amendment and thus the open-fields doctrine did not apply in state prosecutions.; hereafter ''Dixson II'' After reviewing the facts of the case and all the appellate court's opinions, Gillette considered all the arguments. The two cases Van Hoommissen had pointed to as precedent adopting the open-fields doctrine were actually not dispositive of the issue, since one had involved a search on public land and the other appeared to rely on circumstances unique to that case. In another of its own recent holdings, he noted, the state Supreme Court had also rejected ''Katzs reasonable expectation test, so in the instant case the court could consider the issue without relying on it.''Dixson II'', 1018–21 Gillette rejected the

textualist Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, th ...

interpretation of the constitutional language that had been held by the Supreme Court and other states' courts to support the doctrine for three reasons. First, the court's own prior holdings recognized Article I, Section 9, as establishing a broad privacy interest beyond those items specified in it. Second, the Supreme Court had itself admitted in ''Katz'' that in extending privacy protection to the user of a phone booth it was going beyond any possible meaning of "persons, houses, papers and effects", as Justice

Thurgood Marshall Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's first African-A ...

had noted in his ''Oliver'' dissent. Lastly, Gillette noted, if read literally the Fourth Amendment as well as Oregon's constitution would have only protected citizens in their own houses, and not in any other buildings. "If the individual has a privacy interest in land outside the curtilage of his dwelling, that privacy interest will not go unprotected simply because of its location."''Dixson II'', 1021–22 Next, Gillette turned to the claim that

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...

recognized a distinction between the curtilage of a house and the property as a whole. In ''Hester'', Justice Oliver Wendell Holmes had cited

William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family ...

's '' Commentaries on the Laws of England'', a common reference for English common law, in holding this distinction originated there. But Gillette quoted the passage Holmes had cited, in which Blackstone discussed what constituted burglary under common law, to cast doubt on Holmes' interpretation, noting that Blackstone had included all the possible outbuildings as places where unlawful entry and theft could be punished as burglary. Blackstone's chapter on trespass likewise specifically mentioned a man's land as legally protected. "Reliance on the common-law concept of curtilage to justify excluding land outside the curtilage from the protections of either constitutional provision is misplaced", Gillette concluded."''Dixson II'', 1022–23 Lastly Gillette rejected the state's argument that whether land outside curtilage was covered by its owner's privacy interest depended on how that land was used. It depended, he wrote, on whether the owner had taken steps to exclude intruders, such as putting up fences or posting the bounds. "Allowing the police to intrude into private land, regardless of the steps taken by its occupant to keep it private, would be a significant limitation on the occupant's freedom from governmental scrutiny."''Dixson II'', 1023–24 From this Gillette derived a "simple and objective" rule: "A person who wishes to preserve a constitutionally protected privacy interest in land outside the curtilage must manifest an intention to exclude the public by erecting barriers to entry, such as fences, or by posting signs." He then applied the rule to the instant case and found that it did not apply to the Dixsons since the signs they had posted on the road to their house barred only hunting. "There was no objective reason for the officers to believe that ... other uses such as hiking were forbidden" since it was common in Oregon for those uses to take place on large tracts of privately owned land where it was not expressly forbidden. Therefore, having affirmed the appeals court's rejection of the open-fields doctrine, the state's Supreme Court reversed it on the specific issues of the case and affirmed the conviction.''Dixson II'', 1023–24

''State v. Kirchoff''

A case that had begun before ''Oliver'' provided the

Vermont Supreme Court The Vermont Supreme Court is the highest judicial authority of the U.S. state of Vermont. Unlike most other states, the Vermont Supreme Court hears appeals directly from the trial courts, as Vermont has no intermediate appeals court. The Court ...

with its opportunity to consider the open-fields doctrine almost a decade later. In 1982 Robert Kirchoff bought a parcel in the town of Lincoln, Vermont, posted it and filed a notice to that effect with the town clerk. He allowed some of his neighbors to ride their bicycles on trails that crossed the property, but otherwise did not allow any access. Kirchoff had been living there for four years when the

Addison County Addison County is a county located in the U.S. state of Vermont. As of the 2020 census, the population was 37,363. Its shire town (county seat) is the town of Middlebury. History Iroquois settled in the county before Europeans arrived in 160 ...

sheriff received a tip that he was growing marijuana on his land. The sheriff and another law enforcement officer went to a neighboring house, crossed a fence, and followed an old logging road past some old "no trespassing" signs. They left the road and found the growing cannabis plants in the woods roughly 100 yards (91 m) from his house, invisible from the road.''Kirchoff'', at 990 The sheriff called in two other officers to keep an eye on the marijuana while they got a

search warrant A search warrant is a court order that a magistrate or judge issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. In most countries, ...

. Kirchoff went out to tend them at this point, and admitted to the officers that he had been growing them. When the sheriff returned, he and the police seized the plants and other evidence of the grow operation from Kirchoff's house. At trial, Kirchoff moved to have the evidence obtained from the search suppressed. It was denied, and he was convicted. He appealed to the state's Supreme Court. The case was not argued until 1989, and it took an additional two years for the court to decide.''Kirchoff'', at 999 In early 1991 the Supreme Court issued its decision, holding 4–1 that the evidence should have been suppressed. After reviewing the facts of the case, Justice James L. Morse conceded that the search was lawful under ''Oliver''. However, the court went on to note that it had to consider whether the search complied with Article 11 of the state constitution, which while substantially similar to the Fourth Amendment did have some differences in wording. Most significantly, it referred to a person's "possessions" as coming under its purview rather than just their "effects".''Kirchoff'', 991–92 Did that mean it applied to all a person's landholdings, Morse asked? The minimal records from the state's original constitutional debates did not offer much guidance, so he looked at how other states with similar language had addressed the issue. They had divided on the issue, yet at the same time states that used "effects" in their constitutions had held it applied more broadly than ''Oliver'' had held. "Our decision, however, need not rest on the drafters' choice of one word over another", Morse wrote. "Even if we cannot say with confidence that the scope of the term 'possessions' mandates a right of privacy in real estate, it certainly does not rule out such a right." He noted that this interpretation was at odds with ''Oliver'', and said the fault lay with the ''Oliver'' Court, which had "misinterpreted its own Fourth Amendment precedent." In ''Oliver'', the Supreme Court had seemed "to equate privacy with crime", which Morse considered flawed. "If one assumes at the outset that people will only seek privacy in the use of their land for criminal purposes," he wrote, "the conclusion that society will not recognize a claim to privacy in the land readily follows. But we cannot presume how an individual will employ private lands—that is the nature of privacy." ''Oliver''s association of privacy and criminality, according to Morse, was an ''

ipse dixit ''Ipse dixit'' (Latin for "he said it himself") is an assertion without proof, or a dogmatic expression of opinion.Whitney, William Dwight. (1906)"''Ipse dixit''" ''The Century dictionary and cyclopedia,'' pp. 379–380; Westbrook, Robert B"John ...

''.''Kirchoff'', 992–93 Morse accepted the Oregon Supreme Court's rule in ''Dixson'' that the open-fields doctrine did not apply where a landowner had, like Kirchoff, taken affirmative measures to control access to their land. He grounded this in state constitutional and statutory provisions that allowed public use of unposted land for many outdoor recreational activities and limited the liability of landowners for damages suffered by those they allowed, even implicitly, to engage in those activities on unposted land. "These provisions evidence the state's policy of providing the public with certain privileges and liberties not permitted under the common law", he wrote. "They evidence no intent, however, to limit the right of landowners to pursue their affairs free from unregulated intrusion by officials."''Kirchoff'', 994–96 Lastly, Morse said that while the Vermont Supreme Court was not completely discarding ''Katz'' as the basis for its personalty-rooted concept of privacy, it found some issues doing so. It was not comfortable with the concept of a reasonable expectation, since that could too easily change "with political winds and the perceived exigencies of the day ... The question is not what society is prepared to accept but what the constitution requires." This formulation, Morse believed, would better protect people's privacy expectations as technology advanced. Lastly he placed the burden of proof on the state in cases where a search such as the one in the instant case, was challenged as unconstitutional, and held that under that standard this search had violated the state constitution. There were two other opinions. District Judge Lewis Springer, specially assigned to sit on the court for this case due to a vacant seat, concurred but said the majority opinion should have more thoroughly grounded its arguments in the state's constitutional history rather than the federal constitution.''Kirchoff'', 997–99 Louis P. Peck, in one of his last opinions before retirement, dissented at length, attacking and ridiculing the majority for

judicial activism Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...

in an opinion rife with cultural and literary references.''Kirchoff'', 999–1008

Dissent

"I am sadly disappointed, and frustrated beyond comfort", by the majority opinion, Peck began. He likened it to a brief for the defendant in the case. " is, in my judgment, one of the most result-oriented opinions I have ever been exposed to. I am not prepared to countenance in silence the extreme and unwarranted judicial activism of which the opinion is an example." Peck suggested that the majority's confusion over the meaning of "possessions" in the state constitution was "a calculated tactic rather than the result of interpretive incompetency ... Disregarding a word because it may have different meanings in different contexts constitutes an argument weak to the point of absurdity." By doing so, he charged, the majority had been able to substitute its own meaning. If that had not been the plan, "I am afraid that the majority's training in elementary logic, if any, failed to penetrate or make a lasting impression. The rreasoning is a syllogistic blunder and a '' non sequitur''." There was no constitutional problem presented by the case, Peck said; the state's existing laws were enough protection for landowners. The insistence that police needed a warrant to search any posted or fenced land due to the state's trespass laws was, Peck wrote, "like saying a police cruiser, in responding to an emergency call, may not exceed the speed limit because there are laws against speeding." Returning to the majority's apparent confusion over the meaning of "possessions", Peck said it was insulting to the framers of the Vermont Constitution to suggest that they "simply tossed in words willy-nilly with no intent that they have any particular meaning; merely filling in blanks, as it were, with the first word that came to mind." He believed that they chose their words carefully and would not have expected the level of protection the court was giving landowners. Peck also called the majority's holding that the search was unconstitutional "a grossly unfair example of police-bashing", that he himself took personally. Peck feared that the majority's decision would unnecessarily handicap the state's police in preventing crime. He accused it of "cho singthe possible prestige with which it may be honored by law reviews and other constitutional activists among the courts, and legal writers, to a recognition of the rights of the individual inhabitants of the State of Vermont." At the very least, the majority should have held the issue to be decided on a case-by-case basis rather than establishing a blanket rule.

''People v. Scott''

As the Dixson appeal was being considered by the Oregon courts, across the country, a hunter pursuing a wounded deer onto posted private property in

Preston, New York Preston is a town in Chenango County, New York, United States. The population was 1,044 at the 2010 census. Preston is an interior town of Chenango County and is west of the city of Norwich. History The first settler arrived ''circa'' 1787. T ...

, came across what appeared to him to be the remnants of a marijuana growing operation. In July 1988, he returned, and confirmed his suspicions, finding about 50 cannabis plants being grown on the site, guarded by an armed man. He reported this to the state police, who asked him to bring back a leaf from one of the plants. The next month he did, and after testifying ''

in camera ''In camera'' (; Latin: "in a chamber"). is a legal term that means ''in private''. The same meaning is sometimes expressed in the English equivalent: ''in chambers''. Generally, ''in-camera'' describes court cases, parts of it, or process wh ...

'' he returned with a detective. Guy Scott, owner of the on which the marijuana was growing, was arrested and charged with first-degree criminal possession of marijuana, a felony, after 200 plants were seized. At trial in

Chenango County Chenango County is a county located in the south-central section U.S. state of New York. As of the 2020 census, the population was 47,220. Its county seat is Norwich. The county's name originates from an Oneida word meaning 'large bull-thist ...

Court, he moved to suppress the evidence against him as seized unconstitutionally. After the court ruled that it had not been, Scott pleaded guilty and appealed the conviction on the same grounds, arguing that by posting the property's bounds at intervals he had secured a reasonable expectation of privacy. Following ''Oliver'', a five-justice panel of the Third Department of the state's Appellate Division unanimously rejected that argument in 1991. "The marihuana in question here", it wrote, "was clearly grown in an open, uncultivated field away from the curtilage of any residential structure; thus, defendant had no legitimate expectation of privacy." Scott appealed to the

Court of Appeals A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...

, New York's highest court. In 1992, Judge Stewart Hancock wrote for the majority in a 4–3 decision reversing the appellate court and Scott's conviction that rejected the open-fields doctrine. Like Marshall and Oregon's ''Dixson'' court, he found ''Oliver''s recourse to a property-based privacy interest at odds with ''Katz'' reasonable expectation test. But that would have little bearing as the majority found New York's constitution, "with its own unique history", more relevant to the issues raised by Scott's case.''Scott II'', at 486 Prior to 1938 New York, Hancock noted, had restricted searches and seizures only at the statutory level. When the state constitution was amended that year, in addition to language similar to that of the Fourth Amendment that had long been in the statute, it included a provision explicitly including telecommunications under the same warrant requirements, a reaction to the U.S. Supreme Court's '' Olmstead'' case a decade earlier, which had held that police did not need a warrant for

wiretap Telephone tapping (also wire tapping or wiretapping in American English) is the monitoring of telephone and Internet-based conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitorin ...

ping telephones since that took place far from the property of those communicating over them. Therefore, according to Hancock, it did not follow that the state constitution should or could be interpreted in the same way the ''Oliver'' Court had interpreted the federal constitution. Hancock turned to the second part of the ''Katz'' test: whether Scott's interest in his privacy asserted by posting his property was objectively reasonable. The ''Oliver'' majority had dismissed the idea, pointing instead to social consensus as where to look, but, the judge wrote: While Hancock conceded that property rights do not automatically create a privacy interest, his review of the state's statutory and case law convinced him that, in interpreting both state and federal law on this issue, the state's courts had constantly followed the ''Katz'' concept of rooting privacy in the person, rather than property. He also shared Marshall's observation that the ''Oliver'' majority had suggested that a reasonable expectation of privacy depended on what the landowner intended to shield from view by posting or fencing the land: Judge Joseph Bellacosa's dissent, addressing not only ''Scott'' but a companion case in which the court had ruled evidence gathered in warrantless administrative searches of businesses to be inadmissible, focused largely on what he considered to be the majority's faulty reasoning for departing from ''Oliver''. In a similar case of a rural marijuana grower four years earlier, he noted, the court had accepted evidence gathered by an aerial search and declined to consider the same privacy issues that defendant had raised.''Scott II'', at 506–19 The majority responded that in that case she had not raised the issue of her land being posted.''Scott II'', at 480

''State v. Johnson''

Again, as ''Scott'' was reaching the New York Court of Appeals, another marijuana growing investigation across the country again gave rise to a state court's rejection of the open-fields doctrine. This case involved the additional question of whether federal involvement negated any state consideration of the issue. In 1991 agents of the federal

Drug Enforcement Administration The Drug Enforcement Administration (DEA; ) is a United States federal law enforcement agency under the U.S. Department of Justice tasked with combating drug trafficking and distribution within the U.S. It is the lead agency for domestic en ...

(DEA) received a tip that a "Jim Johnson" was growing marijuana on his property near Scott Lake. The two took this information to the Thurston County Narcotics Task Force, and a detective helped them confirm that a man by that name lived in the area, and found his address. However, the only way to reach the property was via a dirt road that ran through Millersylvania State Park. The three went down the road but found it gated, fenced and posted at the property line, and they chose at that time not to pass it, unable to see any evidence of marijuana being grown from where they were. At the DEA agents' request, the county officers flew over the property and took photographs. Several days later the DEA agents returned, without the local detective, in the middle of the night. This time they passed the gate and walked to a barn, with a house visible about beyond, where they smelled growing cannabis plants and heard the sounds of machinery they associated with such cultivation operations. They completed their investigation by aiming a thermal imaging device at the barn; its results further confirmed their suspicion. After finding from local utility records that the property's electricity consumption also matched the profile of a growing operation, they got a warrant and arrested both Johnson and his wife. Although the DEA had gathered most of the evidence against them, the couple were prosecuted in state court. They sought unsuccessfully to suppress that evidence, but the trial court held that the DEA had largely been acting independently of the state, making the evidence admissible under the open-fields doctrine. The court convicted them in a

bench trial A bench trial is a trial by judge, as opposed to a trial by jury. The term applies most appropriately to any administrative hearing in relation to a summary offense to distinguish the type of trial. Many legal systems (Roman, Islamic) use bench ...

and they appealed. The

Washington Court of Appeals The Washington Court of Appeals is the intermediate level appellate court for the state of Washington. The court is divided into three divisions. Division I is based in Seattle, Division II is based in Tacoma, and Division III is based in Spok ...

first reconsidered the trial court's ruling that the DEA acted without the cooperation or assistance of the state, which under the silver platter doctrine would have protected it from being challenged under the state constitution. Judge Gerry Alexander rejected the state's argument that the local officers had only provided the DEA with locally relevant information, noting that a county detective had accompanied the DEA agents on one trip, the aerial surveillance and the involvement of local law enforcement in the arrest. And since the state was so involved, the court could consider whether the evidence was gathered in violation of the state constitution.''Johnson'', at 701 Washington's equivalent to the Fourth Amendment, Article I, Section 7, is unlike New York and Oregon's very differently worded from its federal counterpart: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." It had thus, Alexander wrote, been held repeatedly to offer broader protection to privacy rights.''Johnson'', at 703 The state had argued that the DEA agents had, by using an accessway to the house, complied with that provision, citing several precedents where searches had been upheld where police used routes for the public to approach a residence. But Alexander distinguished them from the instant case by noting that "here ... he agentswere using it as the most convenient route on which to trespass on the Johnsons' property" instead of trying to reach the house and speak with its occupants; the fact that the agents intruded late at night in one argued against that, the judge observed. The posting, fencing and gate also indicated that "the Johnsons withdrew any permission that arguably may be implied for the DEA agents to use the accessway, especially at 1 a.m."''Johnson'', 703-06. Alexander conceded that the barn was not within the curtilage of the house, but again felt that was outweighed by the visible measures the Johnsons had taken to exclude the public from their property. This was not just an issue of privacy, Alexander noted, but the safety of law enforcement. Justice

's dissent in ''Oliver'' had noted that many rural landowners resorted to "self-help", as he put it, when faced with trespassers, and the DEA agents' furtive nocturnal visit to the Johnsons' barn could have resulted in violence. "We conclude that the agents' entry onto the Johnsons' property was an unreasonable intrusion into the Johnsons' private affairs", Alexander wrote. Since the remaining untainted evidence submitted to obtain the search warrant was thus insufficient to establish

probable cause In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition o ...

, the Johnsons' convictions were reversed with directions to dismiss the charges. The

state Supreme Court In the United States, a state supreme court (known by other names in some states) is the highest court in the state judiciary of a U.S. state. On matters of state law, the judgment of a state supreme court is considered final and binding in b ...

declined to review the case the next year.''Johnson'', 706-10.

''State v. Bullock''

Contemporaneously with ''Johnson'', another case involving the open-fields doctrine began working its way through Montana's state courts. Unlike its state and federal predecessors, it involved illegally taken game rather than marijuana cultivation. In October 1991, Chuck Wing, a

Boulder, Montana Boulder is a town in and the county seat of Jefferson County, Montana, United States. It is on the north bank of the Boulder River between Butte and Helena, slightly east of the Continental Divide, at the intersection of Interstate 15 and Mon ...

, man saw a six- or seven-point bull elk on a hill as he was returning from work. He knew that these elk could only be taken by hunters with special permits in that area. As he was watching he saw two men shoot the elk and put it in their truck, which he knew belonged to a man named Eddie Peterson, without field dressing it. Wing reported it to Jefferson County Sheriff Tom Dawson, which in turn passed the information to the state Department of Fish, Wildlife and Parks (MFWP).''Bullock'' at 64 Chris Anderson, an MFWP

game warden A conservation officer is a law enforcement officer who protects wildlife and the environment. A conservation officer may also be referred to as an environmental technician or technologist, game warden, forest ranger, forest watcher, forest g ...

came from nearby Helena to Boulder the next morning and interviewed Wing. Anderson learned that Peterson lived in nearby Basin Creek, and he and Dawson drove to his cabin, down a one-lane Forest Service road bordered by private property in some stretches, with signs advising the public to stay on the road. At Peterson's house, the gate to his driveway was open, and the sheriff and game warden drove past an open gate, with "No trespassing" signs on either side, down a road to Peterson's cabin, which he had in the past moved behind a rise in the land so that it would not be visible from the road. Anderson and Dawson saw an elk carcass hanging from a tree roughly from Peterson's cabin, likewise invisible from the road or adjoining property. Anderson asked where the elk had been killed, and Peterson took the two there, but while there were some of the animal's innards there were no tracks. Anderson believed the elk had been taken somewhere else, and told Peterson what Wing had told Dawson about seeing the day before.''Bullock'' at 65 Peterson continued to insist that the elk had been taken on his property, which Anderson did not believe. Bill Bullock, who was also on the property, attempted to corroborate Peterson's account even when offered

immunity Immunity may refer to: Medicine * Immunity (medical), resistance of an organism to infection or disease * ''Immunity'' (journal), a scientific journal published by Cell Press Biology * Immune system Engineering * Radiofrequence immunity desc ...

from prosecution if he told Anderson what the game warden believed had actually happened. The next day Anderson returned to the property and confiscated the elk. Peterson was charged with unlawfully killing a game animal and Bullock with possessing an unlawfully killed game animal. The two men's trial took most of the next year. In February 1992 the county Justice Court granted their motion to suppress all the evidence that Anderson and Dawson had obtained when they went on Peterson's property, dismissing entirely the case against Bullock in the process. The state appealed to District Court, and asked for a new trial; the defendants in turn asked that the charges be dismissed because they were misdemeanors and more than six months had elapsed since they had been charged. After that motion was denied, they pleaded guilty and, in October, appealed to the

Montana Supreme Court The Montana Supreme Court is the highest court of the state court system in the U.S. state of Montana. It is established and its powers defined by Article VII of the 1972 Montana Constitution. It is primarily an appellate court which reviews ...

. The Supreme Court sent the case back down for

evidentiary hearing Within some criminal justice systems, a preliminary hearing, preliminary examination, preliminary inquiry, evidentiary hearing or probable cause hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine wh ...

s and imposition of sentence, proceedings that took place over the next two years. After they had been held, the justices heard arguments in early 1995 and rendered their decision in August. They considered three issues: the delay in trying the men, whether Bullock had

standing Standing, also referred to as orthostasis, is a position in which the body is held in an ''erect'' ("orthostatic") position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the s ...

to challenge the evidence against him obtained from the warrantless search of Bullock's property, and whether the state constitution's privacy provisions precluded the open-fields doctrine. On the first question, Justice Terry N. Trieweiler held for a unanimous court that the six-month deadline had not been passed due to the state's appeal that granted a trial ''de novo'', and even so the delay had not been presumptively

prejudicial Prejudice can be an affective feeling towards a person based on their perceived group membership. The word is often used to refer to a preconceived (usually unfavourable) evaluation or classification of another person based on that person's per ...

.''Bullock'', 66–67 The next question was resolved in Bullock's favor as the court held that its own prior precedent, and a similar case from

New Jersey New Jersey is a state in the Mid-Atlantic and Northeastern regions of the United States. It is bordered on the north and east by the state of New York; on the east, southeast, and south by the Atlantic Ocean; on the west by the Delaware ...

, that anyone charged with an offense alleging possession of something automatically has standing to challenge the seizure and any evidence derived from it, regardless of another recent U.S. Supreme Court decision that had narrowed the scope of a similar longstanding rule of its own.''Bullock'', 67–68 Having established that both defendants had standing to challenge the state's evidence as unconstitutionally gathered, Trieweiler turned to that final question. Since the U.S. Supreme Court's recent decisions on the open-fields doctrine had revealed "what appear to be seeming inconsistencies", he believed it was proper for the court to reconsider whether it was good law in Montana. After retracing its history at the federal level, Triweiler turned to the state's cases, where cases that had upheld the doctrine after ''Katz'' but before ''Oliver'' and ''Dunn'' had upheld it. He believed that the instant case, however, could be "factually distinguished" from those precedents, where the court had not considered the defendants' expectations of privacy over their open fields to be reasonable due to the circumstances of those cases.''Bullock'', 70–72 Precedent also held that while the language of Article II, Section 11, in the Montana Constitution was, like the corresponding provisions of New York and Oregon's, similar to the Fourth Amendment, it guaranteed broader protections against unlawful search and seizure. Trieweiler looked at the Oregon, New York and Washington cases. He found that the common element was that the defendants had taken steps to exclude all members of the public save those they invited onto the land, by posting, fencing or otherwise limiting access to the property.''Bullock'', 72–75 "We conclude that in Montana a person may have an expectation of privacy in an area of land that is beyond the curtilage which the society of this State is willing to recognize as reasonable, and that where that expectation is evidenced by fencing, 'No Trespassing,' or similar signs, or 'by some other means

hich Ij ( fa, ايج, also Romanized as Īj; also known as Hich and Īch) is a village in Golabar Rural District, in the Central District of Ijrud County, Zanjan Province, Iran Iran, officially the Islamic Republic of Iran, and also ...

indicate unmistakably that entry is not permitted'", Trieweiler wrote, quoting ''Scott''. He explicitly excluded cases, such as some of the precedents he had discussed, where law enforcement had observed the illegal activity from adjoining public property, but declared that to the extent those cases relied on the open-fields doctrine they were overruled.''Bullock'', 75–76 Having rejected the open-fields doctrine for Montana courts as a general principle, Trieweiler turned to its applicability to the instant case. He noted that not only had Peterson posted the property and placed a gate at the entrance road, he had some years beforehand moved his cabin to a less visible location after repeated vandalism. On previous visits, law enforcement had requested his permission to come on the property. "The entry onto Peterson's property and observation of the elk carcass, which could not have otherwise been observed, was an unreasonable search in violation of Article II, Section 11, of the Montana Constitution", Triweiler concluded.''Bullock'', 75–76 Trieweiler rejected the state's argument that Peterson's offer to lead Anderson and Dawson to the purported kill site and permission for them to examine the elk constituted sufficient consent to allow the carcass into evidence as those actions only took place after the sheriff and warden had already trespassed far enough on to the property to see the carcass. The court affirmed the district court's denial of the defendants' motion to dismiss, but overruled its decision not to suppress the evidence from the search.''Bullock'', 75–76

''State v. Stietz''

The scenario Justice

Marshall Marshall may refer to: Places Australia * Marshall, Victoria, a suburb of Geelong, Victoria Canada * Marshall, Saskatchewan * The Marshall, a mountain in British Columbia Liberia * Marshall, Liberia Marshall Islands * Marshall Islands, an i ...

feared in his ''Oliver'' dissent came to pass in

Lafayette County, Wisconsin Lafayette County, sometimes spelled La Fayette County, is a county located in the U.S. state of Wisconsin. It was part of the Wisconsin Territory at the time of its founding. As of the 2020 census, the population was 16,611. Its county seat i ...

, in 2012. Near sunset on the last Sunday of November, the last day of the state's firearm deer season, Robert Stietz, a cattle and mushroom farmer, went to patrol a detached parcel of his land off state Highway 81 for illegal hunters and vandals, both of which he had had problems with in the past. He carried both his rifle and a pistol, and drove to the property in his wife's sedan since he did not expect to be bringing a deer carcass home. For the same reason, he wore camouflage and no

blaze orange Safety orange (also known as blaze orange, vivid orange, OSHA orange, hunter orange, or Caltrans orange) is a hue. Safety orange is used to set objects apart from their surroundings, particularly in complementary contrast to the azure col ...

. At the same time, unbeknownst to Stietz, two game wardens with the state's

Department of Natural Resources This article lists subnational environmental agencies in the United States, by state. Agencies with a variety of titles and responsibilities are included, e.g. Department of Environment, Department of Environmental Conservation, Department of E ...

were patrolling the area in their vehicle, looking for hunters who might be trying to take a deer after the official end of the season, 20 minutes after sunset, which that day was 4:45 p.m. Just before 5, they found the sedan parked alongside the highway. In it they observed an open and empty gun case, a bottle of scent-killing spray and a camouflage tree seat, all of which led them to deduce that the occupant of the car was probably hunting. The car's registration came back to Stietz when they checked it on their vehicle's computer. The wardens decided to investigate. They parked their pickup truck, put on their own blaze orange jackets, on which their departmental insignia was not as conspicuous as it had been on their uniform shirts, and found the open cattle gate leading on to Stietz's property. Shortly after they passed it, Stietz himself saw them and approached them, believing from the blaze orange jackets that they were possibly trespassing hunters.''Stietz'', 805–807 At trial, the wardens testified that they identified themselves as such upon seeing Stietz; he in turn said they did not do so clearly enough for him to hear and believed they were asking if he was a warden or had seen any. The wardens asked how many deer he had seen that day; after Stietz said he had seen seven does but was not at the time hunting, he testified that one of the men threw up his arms and seemed upset, which led him to further believe they might be trespassing. Noticing that the wardens seemed to be trying to interpose themselves between him and his car, Stietz said, he began to feel fearful. One asked him if his rifle was loaded; when Stietz confirmed that it was the other asked him for it, several times, leading Stietz to believe he was being attacked. The two wardens then attempted to take the rifle, leading to a physical struggle between them and Stietz. When they regained their feet, one of the wardens pulled his handgun and pointed it at Stietz, who in turn did the same, followed by the other warden. One of the wardens made a radio call for backup, at which point Stietz said later that he began to realize who they really were and relax slightly. He kept his gun pointed at the wardens, he testified, because they refused to lower theirs. Eventually deputy sheriffs came and, after assuring Stietz he would not be "gang tackled", took him into custody. Stietz faced six felony charges over the incident. At trial in March 2014, the jury convicted him of two: intentionally pointing a firearm at a law enforcement officer and resisting an officer with a dangerous weapon. His pretrial motions for

jury instruction Jury instructions, directions to the jury, or judge's charge are legal rules that jurors should follow when deciding a case. They are a type of jury control procedure to support a fair trial. Description Jury instructions are the set of legal ...

s on

self-defense Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force ...

, trespass, and violation of his right to keep and bear arms were denied, as were his post-trial motions for acquittal or a new trial.''Stietz'', 823–24 In May Stietz was sentenced to a year in prison and probation. The day of sentence, he filed his appeal, arguing the denial of his jury instructions constituted fatal error. In an unpublished 2016 ''

per curiam In law, a ''per curiam'' decision (or opinion) is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court (or at least, a majority of the court) acting collectively (and typically, though not ...

'' opinion, the

upheld the conviction. Stietz appealed to the

Wisconsin Supreme Court The Wisconsin Supreme Court is the highest appellate court in Wisconsin. The Supreme Court has jurisdiction over original actions, appeals from lower courts, and regulation or administration of the practice of law in Wisconsin. Location The Wi ...

. It accepted the case in late 2016 and heard oral arguments early the next year. In June 2017, by a 4–2 margin, the court held that the trial court's denial of Stietz's requested self-defense instruction had deprived him of a factual credible argument that the jury could have believed and reversed and remanded the appeals court. Justice Shirley Abrahamson's majority opinion declined to address the proposed trespass instruction since she believed Stietz might well prevail on retrial with just the self-defense instruction. But the state had raised the open-fields doctrine in its briefs on the case, which led Justice Rebecca Grassl Bradley to write a

, joined in its entirety by Justice Daniel Kelly and partially by Chief Justice Patience D. Roggensack,''Stietz'', 814–16 which argued that Stietz had a constitutional right to raise the trespass issue and that not allowing him to do so violated that right. She also was sharply critical of the open-fields doctrine as used to justify the evidence behind the arrest. In her arguments that the trespass instruction should have been permitted, Bradley had noted that at oral argument the state was unable to cite any statutory authority for the wardens' presence on Stietz's property, nor evidence that they had Stietz's permission. She did not believe the parked car constituted reasonable suspicion of illegal hunting that would have allowed them to enter the property, either. And he had put up clear signals—the posting, gating and fencing of the property—that no one was to come on that property without his permission.''Stietz'', 810–14 In the absence of those more specific justifications, the state had cited the open-fields doctrine as to how the wardens' uninvited presence on public land was legal. "The state is wrong", Bradley wrote. "The open fields doctrine does not transform private fields into public places that anyone is free to enter uninvited or without reason. Nor does it convert the act of trespassing into a lawful intrusion." It existed, she asserted, only to prevent the suppression of evidence gathered by intrusions into the areas it covered, and could not be extended to justify Stietz's arrest. "The open fields exception to the Fourth Amendment's warrant requirement was not intended to eliminate property owners' rights by sanctioning entry onto open land at any time for any reason, or no reason at all", she reiterated, citing ''Bullock'', ''Dixson'', ''Johnson'' and ''Scott'' in a footnote. Dissenting justice

Annette Ziegler Annette Kingsland Ziegler (born March 6, 1964) is an American attorney and jurist serving as Chief Justice of the Wisconsin Supreme Court since May 2021. She has been a member of the Court since 2007, and is generally regarded as being a part of i ...

wrote for herself and Michael Gableman. She primarily took issue with the majority opinion, primarily arguing that the wardens did have reasonable suspicion and legal authority to enter the property. She touched on the open-field doctrine only to note that the appeals court had held it applicable, and Stietz had not raised it on his appeal to the Supreme Court.''Stietz'' at 828 Following the decision, Assemblyman

Adam Jarchow Adam Michael Jarchow (born November 10, 1978)Wisconsin Blue ...

and State Senator Dave Craig introduced a bill that would require that DNR wardens have reasonable suspicion of a law being broken before entering private property without the owner's consent. "Preventing poaching is somehow so important we allow DNR incursions on private property for any reason under the sun or no reason at all", Jarchow complained. " mething is seriously out of whack here." It was vigorously opposed by

wildlife conservation Wildlife conservation refers to the practice of protecting wild species and their habitats in order to maintain healthy wildlife species or populations and to restore, protect or enhance natural ecosystems. Major threats to wildlife include habita ...

organizations such as the

League of Conservation Voters The League of Conservation Voters (LCV) is an American environmental advocacy group. LCV says that it "advocates for sound environmental laws and policies, holds elected officials accountable for their votes and actions, and elects pro-environmen ...

and the state Sierra Club chapter, who feared that it would severely hamper the wardens' ability to do their jobs, and was never brought to a vote. In his 2018 retrial, Stietz pleaded guilty to a single count of restricting or obstructing an officer and was sentenced to

time served In criminal law, time served is an informal term that describes the duration of pretrial detention (remand), the time period between when a defendant is arrested and when they are convicted. Time served does not include time served on bail bu ...

. He filed suit in 2019 against the two wardens alleging they violated his rights under the Second and Fourth amendments; it is currently pending in federal court for the Western District of Wisconsin.

Notes

References

{{DEFAULTSORT:Open Fields Doctrine * Legal doctrines and principles Privacy law in the United States