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to the space beyond” and that “the tumbler of a lock is not accessible to strangers,” and then concluded: “Because the agents obtain information from the inside of the lock,73.1 which is both used frequently by the owner and not open to public view, it seems irresistible that inserting and turning the key is a ‘search.’ ”74 But the court went on to conclude, quite reasonably, that the intrusion upon “privacy interests is so small” that neither a search warrant nor full probable cause was necessary as a prerequisite to such a search.75 (c) Looking in or listening at the residence. Although it is generally true that a person has a justified expectation of privacy with respect to the interior of his place of residence, it does not follow that it is inevitably a search for a law enforcement officer to see or hear what is occurring therein. At least when the officer only employs his natural senses,76 the prevailing rule is that such uses of the senses “made from a place where a police officer has a right to be do not amount to a search in the constitutional sense.”77 In assessing just what circumstances fall within this rule, it is useful to give separate consideration to single-unit dwellings and then to such multiple-occupancy premises as apartment houses, hotels and motels. As for a dwelling house, it certainly is not a search for an officer to see or hear what is occurring inside a dwelling while he is in an area adjacent to that dwelling’s curtilage which is open to the public. Illustrative is People v. Wright,78 where the surveilling officer so employed his senses of sight and hearing while standing on the nearby railroad right of way. In response to the defendant’s argument that Katz had rejected the “trespass” doctrine and that therefore this was a search despite the absence of a trespass, the court reasoned: We do not, however, read Katz as indicating any constitutional infirmity in the instant search, for we believe the seemingly restrictive ruling in Katz is applicable only to those instances where electronic eavesdropping devices or other artificial means are employed in addition to the natural senses. We read the reaffirmation of the lawful position aspect of the plain-view doctrine in Harris79 as retaining the viability of the trespass doctrine in those cases where law enforcement officers gain information concerning crimes by use of their natural senses. Therefore, while the absence of a trespass is no longer to be an adequate ground to justify the admission of evidence secured through the use of the natural senses assisted by artificial means, the lack of a trespass is still a highly relevant consideration in sustaining the admission of evidence which has fallen into the plain view of an officer, i.e., gathered solely by the use of his natural senses. This result is fully consistent with the Katz rationale, for the defendant in Wright cannot be said to have justifiably relied upon the privacy of his residence when his activities could be both seen and heard from a nearby public area. By like reasoning, it may be concluded that no justified reliance is present when a person’s in-premises activities may be readily observed or heard by neighbors, so that it is not a search for an officer to see or hear those activities from a neighbor’s property.80 In Commonwealth v. Busfield,81 for example, the surveilling officer obtained a neighbor’s permission to look from his residence into the window of the suspect premises across the way. From that vantage point, he could see through the sheer curtain in the suspect premises to the narcotics activity then occurring. The court correctly concluded that because that activity was in plain sight of the defendant’s neighbor, he had “exposed his transaction to the public.” This is not to suggest, however, that in every conceivable instance in which surveillance by the natural senses is conducted without entering the curtilage, it may be concluded that no Fourth Amendment search has occurred. Wright merely says that the lack of trespass is a “highly relevant consideration,” not that it is controlling, and certainly there are circumstances in which it must be concluded that the occupant’s justified expectation of privacy was breached notwithstanding the absence of a trespass. For example, what if policemen were to climb up a telephone pole and peer beneath a second-story window shade, thereby observing what could not be seen either from ground level or from nearby buildings In such a case, “[a]lthough they use no electronic gadgetry, the interests on which their activities intrude appear to be indistinguishable from the interest protected in Katz.”82 It will not do in such a case to say that the occupant of the premises could have closed off that window more completely.83 It is one thing to assert that an occupant cannot claim a justified expectation of privacy as to activities within his dwelling when that conduct is carried out in such a manner as to be readily seen or heard by neighbors or by the passing public. It is quite another to declare that citizens cannot “feel safe in leaving their windows uncurtained to the skies”84 or in otherwise failing to seal off each and every aperture in their dwellings. And thus when police surveillance takes place at a position which cannot be called a “public vantage point,”85 i.e., when the police-though not trespassing upon the defendant’s curtilage-resort to the extraordinary step of positioning themselves where neither neighbors nor the general public would ordinarily be expected to be, the observation or overhearing of what is occurring within a dwelling constitutes a Fourth Amendment search. This is really what Katz is all about. 186
The Wright rule also should not be taken to mean that any viewing or hearing of what is occurring in premises is a search if the police were within the curtilage86 at the time. “A sidewalk, pathway, common entrance or similar passageway offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there.”87 Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof—whether the questioner be a pollster, a salesman, or an officer of the law.88 Thus, courts have held “that police with legitimate business may enter the areas of the curtilage which are impliedly open to use by the public,” and that in so doing they “are free to keep their eyes open and use their other senses.”89 This means, therefore, that if police utilize “normal means of access to and egress from the house”90 for some legitimate purpose,91 such as to make inquiries of the occupant,92 to serve a subpoena,93 or to introduce an undercover agent into the activities occurring there,94 it is not a Fourth Amendment search for the police to see95 or hear96 or smell97 from that vantage point what is happening inside the dwelling.98 On the other hand, if the police stray from that path to other parts of the curtilage in order to conduct the surveillance, then the use of natural sight or hearing or smell to detect what is inside is a search within the meaning of the Fourth Amendment.99 Illustrative is Lorenzana v. Superior Court,100 where an officer, unable to see into the suspect house from the street or adjacent driveway, crossed a ten foot strip of land on a side of the house where there were no doors or defined pathways and took a position beneath a window. Although the window was closed and the shade was drawn down to two inches of the bottom sill, this officer was able to overhear a telephone conversation about a pending narcotics pickup and to see heroin. The court quite understandably concluded “that the questioned police procedure too closely resembles the process of the police state, too dangerously intrudes upon the individual’s reasonable expectancy of privacy, and thus too clearly transgresses constitutional principle.” As for the contention that the defendant had no justified expectation of privacy because he had not succeeded in totally concealing his criminal activity from such surveillance by the natural senses, the Lorenzana court responded: The fact that apertures existed in the window, so that an unlawfully intruding individual so motivated could spy into the residence, does not dispel the reasonableness of the occupants’ expectation of privacy. … To the contrary, the facts of this case demonstrate that by drawing the window shade petitioner Lorenzana exhibited a reasonable expectation to be free from surveillance conducted from a vantage point in the surrounding property not open to public or common use.101 Surely our state and federal Constitutions and the cases interpreting them foreclose a regression into an Orwellian society in which a citizen, in order to preserve a modicum of privacy, would be compelled to encase himself in a light-tight, air-proof box.102 Turning now to multiple-occupancy dwellings, such as apartment houses, rooming houses, hotels, and motels, it may be noted at the outset that certain situations are not unlike those previously discussed. If, for example, an officer is able to see or hear what is occurring within a particular unit without intruding into the building or surrounding curtilage and while stationed at what may be fairly characterized a public vantage point, then here again there has been no search.103 But what is different about the multiple-occupancy dwelling cases generally is that an occupant can claim an exclusive privacy interest in only a portion of the premises, and areas immediately adjacent to that portion will be open to public or common usage, so that courts are inclined to view those occupying such dwellings as having a reduced privacy expectation.104 Rather typical of this view is Moody v. State,105 holding it was no search for a detective to look through the partially opened blinds into a motel room: Our courts have accorded a high degree of judicial sanctity to people in their homes, however, this security against unreasonable searches of homes should be distinguished from the scope of protection afforded a motel resident. … A private home is quite different from a place of business or from a motel cabin. A home owner or tenant has the exclusive enjoyment of his home, his garage, his barn or other buildings, and also the area under his home. But a transient occupant of a motel must share corridors, sidewalks, yards, and trees with the other occupants. Granted that a tenant has standing to protect the room he occupies, there is nevertheless an element of public or shared property in motel surroundings that is entirely lacking in the enjoyment of one’s home.106 187
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UNIVERSITY OF THE DISTRICT OF COLUM
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article that appeared in the period
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incarcerated children in the Distri
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Section 3: Writing Exercise Section
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Opinion PERRY, J. 73 So.3d 34 Supre
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activities, or statements that he e
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damaged package and notified federa
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B. “Sniff Test” at a Private Ho
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was standing in front of the door,
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justified on the basis of reasonabl
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The probable cause affidavit listed
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unwavering expectation that there w
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otherwise prompt his dog to alert.
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(quoting State v. Morsman, 394 So.2
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society recognizes as reasonable. A
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obtained through the search is not
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without implicating the Fourth Amen
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[14] The Government contends, howev
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the President and Attorney General
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nuisance. IV Blackstone, Commentari
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The other ‘eroding’ case cited
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11 Jones v. United States, 362 U.S.
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103 S.Ct. 2317 Supreme Court of the
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accompanying remedy. Here, for exam
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northbound on an interstate frequen
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inapplicable to the decision to iss
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L.Ed. 1879 (1949). Justice BRENNAN
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case. As the Court points out, “I
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forcefully suggest that the exclusi
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S.Ct., at 3073-3074. (WHITE, J., di
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law-enforcement officers have recog
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government enforcement agent.” Id
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advance an important underlying sub
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Americans must be that the Court gi
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3 In Spinelli, police officers obse
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The only reference to Hereford’s
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v. United States, supra; Sibron v.
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susceptible to the interpretation t
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8 Rugendorf v. United States, 376 U
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104 S.Ct. 1652 Supreme Court of the
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will not be betrayed.” United Sta
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*126 In sum, the federal agents did
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and that search has not left incrim
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privacy in the presence or absence
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surrounding the use of the techniqu
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1437, 4 L.Ed.2d 1688 (1960); Henry
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26 See, e.g., Michigan v. Long, 463
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Rodriguez, 497 U.S. 177, 181, 110 S
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how relatively warm—Kyllo was hea
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concurring). To be sure, the homeow
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homeowner would even care if anybod
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4 This view comports with that of a
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unless the dog sniff itself infring
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probable cause to stop the car for
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and, implicitly, the application of
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3 Kyllo was concerned with whether
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(500 grams and an unspecified amoun
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authority to allow police inside th
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AFFIRMED. We retain jurisdiction an
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that “[t]he right of the people t
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field” did not constitute a Fourt
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Government’s unrestrained power t
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y the government upon the privacy o
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own difficulties. It involves a deg
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search unless it is achieved by suc
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88 Or. L. Rev. 829 Oregon Law Revie
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hidden in open locations, such as f
Page 135 and 136: While the Place Court’s failure t
Page 137 and 138: location may be important in evalua
Page 139 and 140: III Framing the Canine Home-Sniff D
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Page 143 and 144: possessions. Without minimizing the
Page 145 and 146: 4. Even Surreptitious Canine Sniffs
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Page 149 and 150: focused on the routineness of the a
Page 151 and 152: 6 See People v. Dunn, 564 N.E.2d 10
Page 153 and 154: 27 See Robert C. Bird, An Examinati
Page 155 and 156: 323 (Friedrich G. Barth et al. eds.
Page 157 and 158: pre-Place decisions issued by the U
Page 159 and 160: 97 See Illinois v. Caballes, 543 U.
Page 161 and 162: 121 Id. at 37 n.4 (majority opinion
Page 163 and 164: 147 462 U.S. 696 (1983). 148 See in
Page 165 and 166: 171 Dunaway v. New York, 442 U.S. 2
Page 167 and 168: 199 As Justice Souter explained,
Page 169 and 170: to school). 219 Cf. Katz & Golembie
Page 171 and 172: 240 See Kyllo v. United States, 533
Page 173 and 174: 263 In 2004, photographs emerged th
Page 175 and 176: 285 Id. at 1362. The story of this
Page 177 and 178: 306 But cf. Fitzgerald v. State, 86
Page 179 and 180: 328 Riley, 488 U.S. at 448 (observi
Page 181 and 182: 1 Search & Seizure § 2.3 (4th ed.)
Page 183 and 184: establish a right to privacy therei
Page 185: were locked and could only be opene
Page 189 and 190: to investigate. Noting that a metal
Page 191 and 192: active domestic use. It housed ten
Page 193 and 194: Ciraolo,191 involving aerial survei
Page 195 and 196: ackyard of the building was complet
Page 197 and 198: feet. The viewing from the helicopt
Page 199 and 200: cases as Ciraolo, Riley and Dow man
Page 201 and 202: premises were abandoned where all c
Page 203 and 204: 22 Young v. Harrison, 284 F.3d 863
Page 205 and 206: 37.1 McKenney v. Harrison, 635 F.3d
Page 207 and 208: (1983); State v. Eddy, 519 A.2d 113
Page 209 and 210: 68 Dinkens v. State, 291 So.2d 122
Page 211 and 212: eceived no answer to knock on front
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Page 215 and 216: “Second, the agents had a legal r
Page 217 and 218: 131 United States v. Llanes, 398 F.
Page 219 and 220: 167 The reference is to the “open
Page 221 and 222: however by fact lights were on insi
Page 223 and 224: properly crossed defendant’s land
Page 225 and 226: view”); State v. Merrill, 252 Neb
Page 227 and 228: the area within the ‘curtilage’
Page 229 and 230: is not to conclude that a search of
Page 231: 265 Such analysis was challenged by
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