515 lines
28 KiB
Plaintext
515 lines
28 KiB
Plaintext
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May 1990
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CURTILAGE: THE FOURTH AMENDMENT IN THE GARDEN
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By
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John Gales Sauls
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Special Agent
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and
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Legal Instructor
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FBI Academy
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Suppose a police officer, executing a search warrant
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authorizing the seizure of cocaine, is searching a residence in
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his jurisdiction. As the search proceeds, an outbuilding is
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discovered at the rear edge of the residence's backyard. The
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officer ponders whether he may search the outbuilding under the
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authority of the warrant he is executing.
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Across town, another officer is conducting an unrelated
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surveillance of a drug trafficker. He follows the suspect to a
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residence that the suspect enters. The suspect and the resident
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of the house, who is unknown to the police, are heard talking on
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a fenced patio behind the house. If the officer crawls into the
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bushes at the side edge of the residence's lawn, he will be able
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to see the men on the patio without revealing his presence. He
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wonders whether such an entry will be lawful.
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These officers are grappling with the concept of curtilage.
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The first officer needs to determine whether the outbuilding is
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within the curtilage of the residence and therefore within the
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scope of the search warrant. The second officer needs to
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determine whether the bushes he is considering crawling into are
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within the curtilage of the residence, and if so, whether his
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contemplated entry is a lawful one.
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This article will discuss curtilage. It will first discuss
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the legal standards used in defining the physical limits of
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curtilage. Then, it will examine protections associated with
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curtilage and the limitations placed upon law enforcement
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officers by these protections. Finally, it will set forth
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guidelines that may be used by officers who need to determine the
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boundaries of a particular residence's curtilage so as to
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restrict their actions to those allowed under the Constitution.
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CURTILAGE DEFINED
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As the U.S. Supreme Court noted in United States v. Dunn, (1)
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curtilage is the area immediately surrounding a residence that
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``harbors the `intimate activity associated with the sanctity of
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a man's home and the privacies of life.''' (2) Curtilage, like a
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house, is protected under the fourth amendment from
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``unreasonable searches and seizures.'' (3) Determining the
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boundaries of curtilage, however, is considerably more
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problematic than fixing the limits of a house.
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In Dunn, the Court identified four factors that should be
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considered when determining the extent of a home's curtilage:
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1) The distance from the home to the place claimed to be
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curtilage (the nearer the area to the home, the more likely that
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it will be found to lie within the curtilage);
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2) Whether the area claimed to be curtilage is included
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within an enclosure surrounding the home (inclusion within a
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common enclosure will make it more likely that a particular area
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is part of the curtilage);
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3) The nature of use to which the area is put (if it is the
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site of domestic activities, it is more likely to be a part of
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the curtilage); and
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4) The steps taken by the resident to protect the area from
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observation by people passing by (areas screened from the view
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are more likely a portion of the curtilage).
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The Court urged the use of these four factors as a guide in
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assessing whether the ``area in question is so intimately tied to
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the home itself that it should be placed under the home's
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`umbrella' of Fourth Amendment protection.'' (4)
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Since the Court in Dunn held that the area in question in
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that case was outside the curtilage, no guidance was provided
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regarding what protections the fourth amendment provides to
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curtilage. Fortunately, other U.S. Supreme Court and lower court
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decisions have delineated these protections in some detail.
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PROTECTIONS AFFORDED CURTILAGE
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Application of the Fourth Amendment
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The fourth amendment to the U.S. Constitution protects the
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``right of the people to be secure in their persons, houses,
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papers and effects against unreasonable searches and
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seizures....'' (5) As earlier noted, this protection extends to
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the area surrounding a residence that is known as curtilage. (6)
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Often, the area outside the curtilage is properly classified as
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``open fields'' and is subject to no fourth amendment
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protection. (7)
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Whether a particular action in relation to the curtilage is
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controlled by the fourth amendment depends on whether the action
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constitutes a ``search or seizure'' for fourth amendment
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purposes. If the action is a search or seizure, officers are
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generally required to obtain a warrant prior to conducting the
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search or seizure, or to justify a warrantless action by
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demonstrating that it was lawful under one of the exceptions to
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the fourth amendment warrant requirement. (8) If no search or
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seizure is involved, the fourth amendment will not apply, and it
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is unnecessary for an officer to factually justify his actions. (9)
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A search, for fourth amendment purposes, occurs when
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government action intrudes into a person's ``reasonable
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expectation of privacy.'' (10) As will be hereafter discussed,
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assessing whether a particular action by the government intrudes
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into a person's ``reasonable expectation of privacy'' is a
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critical component in the determination of what law enforcement
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officers may lawfully do in and around curtilage.
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Examination of the Curtilage from a Point Outside
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An officer, positioned in a place where he has a right to be
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outside the curtilage of a residence, may generally look into the
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curtilage without performing a ``search.'' This is true because
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the officer is observing nothing more than any other member of
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the public might see from the same viewpoint, and ``[w]hat a
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person knowingly exposes to the public, even in his own home or
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office, is not subject to Fourth Amendment protection.'' (11) For
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example, when agents of the Internal Revenue Service hid in a
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cornfield adjacent to a residence's backyard and observed illicit
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whiskey transactions therein, their actions did not constitute a
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search, even though the backyard was clearly part of the
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curtilage. (12)
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Where necessary, an officer may take steps to improve his
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view without his actions constituting a search, so long as he
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does nothing that might not be done by some other ordinarily
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curious member of the public. Standing on a rock in order to see
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over a 6-foot fence, for example, has been held not to constitute
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a search since the resident ``...had reasonably to expect that
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his neighbors might glance into his backyard....'' (13) Similarly,
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when officers saw marijuana plants growing in a person's
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backyard, by standing on tiptoes on a neighbor's back porch to
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look over the person's 6-foot high stake fence that was
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overgrown by vines and bushes, they did not conduct a search. (14)
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Use of an airplane or helicopter flying in lawful airspace
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as a platform to view what a person has exposed, in his
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curtilage, to air view will also not constitute a search. (15) When
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the officer is observing nothing more than some other member of
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the public flying over the residence might see, those
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observations are not intruding into any expectation of privacy
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that society is willing to recognize as reasonable. (16)
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Consequently, the viewing is not a search. (17)
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Similarly, use of devices that optically or mechanically
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enhance an officer's view into curtilage does not constitute a
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search as long as the device does not reveal significant details
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that could not be viewed from a closer public vantage point. For
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example, officers who concealed the existence of their
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surveillance by hiding in woods and using binoculars and a
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spotting scope to observe the yard, garage, barn and exterior of
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a rural home were not conducting a search since these things were
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also visible from a public highway closer to the house. (18) In
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another case, officers used a telephoto lens while on a
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helicopter overflight to photograph a barn adjacent to a
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suspect's rural home and thereby observed a newly constructed
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addition to the barn and unusually wide tire tracks leading to
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the barn. These actions were held not to constitute a search
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since the things observed could have been seen with the naked eye
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during a closer, lawful overflight. (19)
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However, use of sophisticated devices to enhance the
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officers' observation powers to reveal things not visible with
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the naked eye from some lawful vantage point will likely
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constitute a search. Thus, when police used a 600-millimeter
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camera lens from a distance of 100 yards (the nearest point the
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officers had a right to be) to glimpse through the fan louvers of
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an opaque greenhouse surrounded by brush and two fences, their
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observations of marijuana plants were held to be a search. (20)
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Therefore, if the use of enhancement devices is contemplated
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during a surveillance, absent emergency circumstances, a valid
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search warrant should be obtained prior to its institution.
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The information that officers gather by seeing what has been
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placed in the view of the public may be used as component facts
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of probable cause to search or arrest. However, mere possession
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of facts amounting to probable cause will not necessarily justify
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further warrantless action by the officers. As will be
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discussed, absent the applicability of some recognized exception
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to the warrant requirement, a search warrant may be required
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before officers enter curtilage and seize evidence.
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Entry into Curtilage
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Determining whether an entry into curtilage by law
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enforcement officers constitutes a search or seizure for fourth
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amendment purposes necessitates a second ``reasonable expectation
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of privacy'' analysis. While citizens may have no reasonable
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expectation that police officers will not look into their
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curtilage from vantage points where the officers have a right to
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be, they may reasonably expect that the same officers will not
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enter their curtilage.
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In United States v. Whaley, (21) a deputy sheriff driving
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along a road crossing an 11,000-acre farm saw what he thought to
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be marijuana growing adjacent to a house that was near the road.
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The deputy later entered the property and seized the marijuana
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plants without first obtaining a warrant. The seizure of the
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marijuana plants was held to be illegal. Even though the
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deputy's view of the plants from the road was not a search, his
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entry onto the property to seize the plants was an intrusion into
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the curtilage. Since no emergency had been shown to exist, and
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no other exception to the warrant requirement was apparently
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applicable, the court ruled the warrantless entry and seizure
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violated the fourth amendment.
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All warrantless entries into curtilage do not, however,
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violate the fourth amendment. In assessing the constitutionality
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of an entry, courts look to the nature of the particular area
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entered to assess whether the entry intruded into some reasonable
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expectation of privacy. In that regard, areas of the curtilage,
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such as walkways and driveways, that members of the public would
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be expected to enter are not private. As one court expressed,
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``In conducting a criminal investigation, a police officer may
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enter those residential areas that are expressly or impliedly
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held open to casual visitors.'' (22) Officers may generally enter
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access areas of the residence's curtilage without a warrant
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since it is reasonable to expect members of the public, such as
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neighbors and salespersons, to enter such areas. The court
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noted, ``If one has a reasonable expectation that various members
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of society may enter the property in their personal or business
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pursuits, he should find it equally likely that the police will
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do so.'' (23)
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In United States v. Smith, (24) for example, an officer drove
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into the driveway of the defendant's 70-acre farm and saw from
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his car a large marijuana plant growing beside the house.
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Although there was a wire fence along the highway, the court in
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holding that no search had occurred noted that the driveway was
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unobstructed, and that it was not reasonable to expect that
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members of the public wouldn't drive in.
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In United States v. Roberts, (25) an officer drove into a road
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marked ``private'' that the defendant shared with other neighbors
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and walked up to the defendant's front door. His view of
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evidence from that point was held not to be the product of a
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search. An unobstructed driveway or sidewalk carries with it an
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implied invitation to both neighbors and the police.
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Officers may also deviate somewhat from the straight path to
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the front door. In United States v. Johnson, (26) officers stepped
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2 or 3 feet off the sidewalk leading to the front door of an
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urban residence and thereby gained a view into the lighted
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basement through an uncurtained window. Their view of drugs
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being packaged in the basement was held not to be the product of
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a search.
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However, entry by officers into private areas of curtilage
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will constitute an intrusion into fourth amendment rights. In
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United States v. Van Dyke, (27) officers began a surveillance of a
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rural home from a neighbor's property. As darkness fell the
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officers moved in closer to obtain a better vantage point. ``The
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officers walked through trees growing along the boundary between
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the two properties, climbed a fence, and moved 15 feet beyond the
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fence to a location 150 feet from the residence. There they lay
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down in a patch of honeysuckle bordering the mowed lawn.'' (28)
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Although quite distant from the house, this area was held to be
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within the curtilage in part due to its proximity to the large,
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manicured lawn. This entry into curtilage was held to constitute
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a search, and the information obtained from surveillance at this
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location was suppressed.
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Searches Made Pursuant to a Search Warrant
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Officers executing a search warrant that authorizes them to
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search a residence for evidence of crime have authority to enter
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the curtilage area in order to gain access to the residence. But
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that is not the end of their powers under the search warrant.
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Many warrants include a specific authorization to search the
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curtilage and any outbuildings therein. Even without this
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specific authorization, officers may, pursuant to the warrant,
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search portions of the curtilage that might conceal the evidence
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they are empowered to seize. (29) This is because the ``...word
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`premises' in a search warrant includes the land, the buildings,
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and the appurtenances thereto.'' (30) Thus, in United States v.
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Griffin, (31) a warrant that described a residence as ``premises
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known as'' followed by the street address and a description of
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the house gave authority to search and seize soil and rock in the
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backyard, the contents of a tool shed and the contents of an
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automobile parked in the driveway.
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An officer who knows prior to applying for a search warrant
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that there are outbuildings or automobiles on the premises to be
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searched should seek a warrant that includes a specific
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authorization to search the curtilage, outbuildings and
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automobiles. (32) This is especially true where defendants might
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claim that the outbuildings are separate residences. (33) However,
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where the warrant merely authorizes the search of specified
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``premises,'' officers should understand this to include the
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curtilage and outbuildings (that are clearly not other
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residences) located therein. (34)
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CONCLUSION
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Three circumstances have been identified where the concept
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of curtilage has legal significance to police officers. First,
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where officers contemplate observing an area from a lawful
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vantage point using a device to enhance their senses to an extent
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that they will be able to observe details not visible with the
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naked eye from any other lawful vantage point, the officers must
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determine whether the area is part of a residence's curtilage.
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This is because if the area is curtilage their enhanced viewing
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is likely a search under the fourth amendment, and absent
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emergency circumstances, a search warrant is required in order
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for their viewing to be lawful.
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Second, when contemplating entering areas near a residence
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that are not access areas or that are access areas with public
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access either blocked or discouraged in a significant way, (35)
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officers should determine whether the area to be entered is
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within the curtilage. Again, if the area is part of the
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curtilage, the officers should, absent emergency circumstances,
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seek a search warrant before making the entry. The second
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officer mentioned in the beginning of this article is faced with
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such a circumstance. The bushes he is contemplating crawling
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into are likely within a nonaccess portion of the curtilage, and
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the officer would need a warrant in order to lawfully view his
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suspect from that location.
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Finally, officers executing search warrants, such as the
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first officer mentioned in the beginning of this article, need to
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determine the bounds of the curtilage when contemplating the
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search of a structure arguably beyond the curtilage. The same
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holds true when they encounter what is likely a separate dwelling
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not specified as a place to be searched in the search warrant.
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The search of separate dwellings and structures beyond the
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curtilage will require seeking additional warrants specifically
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directing the search of those structures.
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Where a determination regarding curtilage is required,
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officers should make a common sense assessment using the factors
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set forth in the Dunn decision: (1) The distance of the area
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from the residence; (2) whether the area is included with the
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residence in a common enclosure; (3) the nature of the use of
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the area; and (4) what steps the resident has taken to screen the
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view of the area. If the area in question is very close to the
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residence, that fact alone will likely cause the area to
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constitute curtilage. If the area is farther away, the other
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factors will also be of significance. In a close case, it is
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recommended that officers seek a search warrant prior to acting.
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This will serve as a safeguard that the officers' actions are
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within the bounds of Constitutional constraints.
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FOOTNOTES
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(1) 480 U.S. 294 (1987).
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(2) Id., at 300 (quoting Oliver v. United States, 466 U.S.
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170, 180 (1984) [internal quotation marks omitted]).
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(3) United States v. Dunn, supra note 1; United States v.
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Oliver, supra note 2.
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(4) United States v. Dunn, supra note 1, at 301.
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(5) U.S. Const. Amend. IV.
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(6) See Oliver v. United States, supra note 2.
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(7) Id. The ``open fields'' doctrine is not limited to rural
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|
settings, but can also include undeveloped urban property. See
|
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|
State v. Stavricos, 506 S.W.2d 51 (Mo. App. 1974).
|
|||
|
|
|||
|
(8) Katz v. United States, 389 U.S. 347 (1967).
|
|||
|
|
|||
|
(9) Id. See also, United States v. Jacobsen, 104 S.Ct. 1652
|
|||
|
(1984).
|
|||
|
|
|||
|
(10) Id.
|
|||
|
|
|||
|
(11) Katz v. United States, supra note 8, at 351.
|
|||
|
|
|||
|
(12) United States v. Campbell, 395 F.2d 848 (4th Cir. 1968),
|
|||
|
cert. denied, 393 U.S. 834 (1968).
|
|||
|
|
|||
|
(13) State v. Corra, 745 P.2d 786, 788 (Or. App. 1987), review
|
|||
|
denied, 752 P.2d 842 (Or. 1988).
|
|||
|
|
|||
|
(14) United States v. McMillon, 418 F.2d 1150 (D.C. Cir.1969).
|
|||
|
|
|||
|
(15) California v. Ciraolo, 476 U.S. 207 (1986); Florida v.
|
|||
|
Riley, 109 S.Ct. 693 (1989). See also, United States v.
|
|||
|
Broadhurst, 805 F.2d 849 (9th Cir. 1986). As noted in State v.
|
|||
|
Bridges, 513 A.2d 1365 (Me. 1986), the means used to gather the
|
|||
|
information will not be relevant as long as what was observed
|
|||
|
could have been seen from a legitimate, public vantage point.
|
|||
|
|
|||
|
(16) Id.
|
|||
|
|
|||
|
(17) Id.
|
|||
|
|
|||
|
(18) United States v. Lace, 669 F.2d 46 (2d Cir. 1982), cert.
|
|||
|
denied, 459 U.S. 854 (1982).
|
|||
|
|
|||
|
(19) United States v. Allen, 675 F.2d 1373 (9th Cir. 1980),
|
|||
|
cert. denied, 102 S.Ct. 133 (1981).
|
|||
|
|
|||
|
(20) Wheeler v. State, 659 S.W.2d 381 (Tex. Crim. App. 1983).
|
|||
|
See also, United States v. Taborda, 635 F.2d 131 (2d Cir. 1980);
|
|||
|
United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987).
|
|||
|
In Cuevas-Sanchez, the court in dicta indicated that the use of a
|
|||
|
video camera to obtain a full-time view of the defendant's
|
|||
|
backyard (which was fenced but visible to a number of his
|
|||
|
neighbors) constituted a search due to the pervasive nature of
|
|||
|
the surveillance. The reasoning that it is reasonable to expect
|
|||
|
that persons will not gaze constantly into one's backyard but
|
|||
|
unreasonable to expect that persons will not look occasionally
|
|||
|
seems significantly flawed. A place is either open to public
|
|||
|
view or it's not. The court was not required to decide the issue
|
|||
|
in Cuevas-Sanchez since the officers in that case got prior
|
|||
|
judicial authorization to conduct the video surveillance.
|
|||
|
Consequently, their actions would have been reasonable for fourth
|
|||
|
amendment purposes even if the video surveillance had constituted
|
|||
|
a search.
|
|||
|
|
|||
|
(21) 781 F.2d 417 (5th Cir. 1986).
|
|||
|
|
|||
|
(22) People v. Shorty, 731 P.2d 679, 682 (Colo. 1987). See
|
|||
|
also, United States v. Ventling, 678 F.2d 63 (8th Cir. 1982)
|
|||
|
(officer drove into driveway and walked to front door, observing
|
|||
|
evidence); United States v. Kramer, 711 F.2d 789 (7th Cir.
|
|||
|
1983), cert. denied, 104 S.Ct. 397 (1983) (officers removed
|
|||
|
trash bags which were just inside a knee-high chain fence
|
|||
|
running along street curb 30 feet from front of house); United
|
|||
|
States v. Reed, 733 F.2d 492 (8th Cir. 1984) (officer entered
|
|||
|
fenced back parking lot of commercial establishment through open
|
|||
|
gate). Cf. Maryland v. Macon, 472 U.S. 463 (1985) (detective in
|
|||
|
plain clothes entered book store, which was open to the public,
|
|||
|
and purchased magazine later used as evidence.
|
|||
|
|
|||
|
(23) State v. Corbett, 516 P.2d 487, 490 (Or. App. 1973).
|
|||
|
|
|||
|
(24) 783 F.2d 648 (6th Cir. 1986).
|
|||
|
|
|||
|
(25) 747 F.2d 537 (9th Cir. 1984).
|
|||
|
|
|||
|
(26) 561 F.2d 832 (D.C. Cir. 1977), <MI>cert. denied, 432 U.S.
|
|||
|
907 (1977).
|
|||
|
|
|||
|
(27) 643 F.2d 992 (4th Cir. 1981).
|
|||
|
|
|||
|
(28) Id. at 993.
|
|||
|
|
|||
|
(29) See United States v. Bonner, 808 F.2d 864 (1st Cir. 1986),
|
|||
|
cert. denied, 107 S.Ct. 1632 (1987) (detached garage included in
|
|||
|
term ``premises'' for purposes of describing the place to be
|
|||
|
searched); United States v. Penn, 647 F.2d 876 (9th Cir. 1980),
|
|||
|
cert. denied 449 U.S. 903 (1980) (warrant describing residential
|
|||
|
premises included the residence's yard).
|
|||
|
|
|||
|
(30) State v. Trujillo, 624 P.2d 44 (N.M. 1981).
|
|||
|
|
|||
|
(31) 827 F.2d 1108 (7th Cir. 1987).
|
|||
|
|
|||
|
(32) See United States v. Percival, 756 F.2d 600 (7th Cir.
|
|||
|
1985) (approving of a search of a suitcase in the trunk of a car
|
|||
|
parked in a detached garage during the execution of a search
|
|||
|
warrant authorizing the search of the residential premises, but
|
|||
|
noting that the ``better practice'' would be to specifically
|
|||
|
include the car in the warrant where possible).
|
|||
|
|
|||
|
(33) See United States v. Frazin, 780 F.2d 1461 (9th Cir.
|
|||
|
1986), cert. denied sub. nom. Miller v. United States, 107 S.Ct.
|
|||
|
142 (1986) (noting the outer limits of authorization of search
|
|||
|
based upon curtilage, stating ``[w]e have upheld searches of all
|
|||
|
the property at a listed street address under warrants that
|
|||
|
recite probable cause as to only a portion of the premises where
|
|||
|
a multiunit building or collection of separate buildings is used
|
|||
|
as a single entity, where the defendant is in control of the
|
|||
|
whole premises, or where the entire premises is suspect.'');
|
|||
|
accord, United States v. Alexander, 761 F.2d 1294 (9th Cir.
|
|||
|
1985) (approving the search of a house trailer located on a
|
|||
|
ranch pursuant to a warrant authorizing a search of the entire
|
|||
|
ranch); United States v. Whitten, 706 F.2d 1000 (9th Cir. 1983),
|
|||
|
cert. denied, 465 U.S. 1100 (1984) (approving the search of a
|
|||
|
large stucco house where the house and the adjacent cottage
|
|||
|
where the probable cause statement indicated the illegal
|
|||
|
activity was occurring shared the same street address and were
|
|||
|
occupied in common by the defendants).
|
|||
|
|
|||
|
(34) United States v. Long, 449 F.2d 288 (8th Cir. 1971),
|
|||
|
cert. denied, 405 U.S. 974 (1972); United States v. Asselin, 775
|
|||
|
F.2d 445 (1st Cir. 1985) (which notes that a defendant is often
|
|||
|
placed in a ``no win'' situation where the area in question is
|
|||
|
either within the curtilage and thus within the warrant's
|
|||
|
authorization, or in an ``open field,'' thus requiring no
|
|||
|
warrant).
|
|||
|
|
|||
|
(35) It is noteworthy that fences and ``no trespassing'' signs
|
|||
|
are not a barrier to an officer's entry into ``open fields.''
|
|||
|
See Oliver v. United States, supra note 2; United States v.
|
|||
|
Dunn, supra note 1.
|
|||
|
|
|||
|
____________
|
|||
|
|
|||
|
Law enforcement officers of other than Federal jurisdiction
|
|||
|
who are interested in this article should consult their legal
|
|||
|
adviser. Some police procedures ruled permissible under Federal
|
|||
|
constitutional law are of questionable legality under State law
|
|||
|
or are not permitted at all.
|
|||
|
|
|||
|
|
|||
|
|