SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Chapter 12
Open Fields:
General Rule: The constitutional protections relating to homes do not apply to
open fields beyond the curtilage of the home. (Oliver v. United States (1984) 466
U.S. 170 [80 L.Ed.2 nd 214].)
Therefore, trespassing onto defendant’s open land does not implicate the
Constitution, and any observations made while doing so are admissible.
(Ibid; Hester v. United States (1924) 265 U.S. 57 [68 L.Ed. 898].)
Narcotics officers entered the defendant’s land, past “No Trespassing”
signs and barbed wire fencing. Entry into such an area, not part of the
cartilage of any home, was not contested. (United States v. Barajas-
Avalos (9 th Cir, 2004) 359 F.3 rd 1204.)
A warrantless airplane search, acting on a tip, at altitudes of between 300
to 700 feet, resulting in observation of defendant’s half-football-fieldsized
marijuana grow, was lawful. (Dean v. Superior Court (1973) 35
Cal.App.3 rd 112.)
Similarly, observation of a marijuana patch from 1,500 to 2,000 feet,
visible to the naked eye (and then enhanced through the use of binoculars),
did not violate the defendant’s privacy rights. (Burkholder v. Superior
Court (1979) 96 Cal.App.3 rd 421; see also People v. St. Amour (1980) 104
Cal.App.3 rd 886, observations made from 1,000 to 1,500 feet, again
enhanced through the use of binoculars, held to be lawful; and People v.
Joubert (1981) 118 Cal.App.3 rd 637.)
Observations made into private areas from an “open field” beyond the curtilage
of the home are lawful. (United States v. Dunn (1987) 480 U.S. 294 [94 L.Ed.2 nd
326].)
California expressly follows the federal rule. (People v. Channing (2000)
81 Cal.App.4 th 985.)
© 2011 Robert C. Phillips. All rights reserved
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