UNIVERSITY OF THE DISTRICT OF - UDC Law Review

Although the open fields-curtilage distinction will often be helpful in this context, Fullbright correctly cautions that this
distinction as to the character of the property on which the officer was positioned will not inevitably be controlling. The
ultimate judgment to be made under Katz is whether, by taking that position, the officer intruded upon a privacy expectation
deserving of Fourth Amendment protection.168 In United States v. Minton,169 for example, officers stationed themselves at
the top of a 12–14 foot embankment about 80–90 feet away and from there, with the aid of binoculars, saw illicit liquor
plainly visible in a truck and through the open doorway of a building. Although it was unclear whether the embankment
belonged to Minton, the court declared that
even if it did, such a location at such a distance is probably not within the curtilage. … More important than
the rubric of realty … there was here, we think, no reasonable expectation of privacy—considering the time of
day and all the surrounding circumstances.
If the officer was in closer proximity to the structure, as commonly is the case when the events occur in an urban setting, it
must be considered just how private the particular vantage point actually was. It is not objectionable for an officer to come
upon that part of the property which “has been opened to public common use.”170 The route which any visitor to a residence
would use is not private in the Fourth Amendment sense, and thus if police take that route “for the purpose of making a
general inquiry”171 or for some other legitimate reason,172 they are “free to keep their eyes open,”173 and thus it is
permissible for them to look into a garage or similar structure from that location.174 On the other hand, if the police depart
from that route and go to other, more private parts of the curtilage in order to look into a structure there,175 this constitutes a
search,176 even if the police might have been able to (but didn’t) make the same observation from outside the curtilage.177
Despite the importance of making these kinds of assessments concerning the position of the officer at the time he makes his
observations, it cannot be asserted dogmatically that the viewing is never a search whenever the police conduct in taking that
position did not itself intrude upon the defendant’s justified privacy expectation. Attention must also be given to the manner
of viewing, for the “ultimate question” put by Katz “is whether, if the particular form of surveillance practiced by the police
is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be
diminished to a compass inconsistent with the aims of a free and open society.”178 Certainly that privacy would be so
diminished if persons were put to the choice of sealing up their premises air tight or else assuming the risk that a policeman
will look in. And even if a garage is not entitled to “the special Fourth Amendment protections afforded a dwelling,”179 it is
still true that “when a citizen does as much as ordinary care requires to shield his sanctuary from strangers his constitutional
right to maintain his privacy should not be made to depend upon the resources of skillful peepers and eavesdroppers who can
always find ways to intrude.”180
When the conduct of the officer in gaining access to the vantage point is itself unobjectionable, privacy interests are not
threatened by allowing the officer so positioned to use his naked eye181 to look into a garage, barn or shed through an open
door182 or an uncovered window.183 In such a case, it cannot be said that the occupant of those premises has done “as much
as ordinary care requires.” But when the premises are more carefully secured and the officer consequently has to resort to
other techniques, there comes a point at which the surveillance deserves to be characterized as a search and thus brought
within the restraints of the Fourth Amendment.184 And this can be so even as to structures not technically within the
curtilage, as is illustrated by United States v. Dunn.185 To look into a barn fifty yards from the curtilage boundary, agents
crossed four fences and then used a flashlight to look through a fishnet covering to determine what was inside. In holding that
notwithstanding the Supreme Court’s generous “open fields” rule of Oliver v. United States186 this was a search, the court
noted it had “found no case … applying the term [open fields] to a building of any consequence.”187 The court in Dunn quite
correctly emphasized that a
barn is as much a part of a rancher’s place of business as a warehouse or outbuilding is part of an urban
merchant’s place of business. It is and ought to be constitutionally protected from warrantless searches if the
owner or occupier takes reasonable steps to effect privacy.
The court of appeals in Dunn later declined to rely on that reasoning and instead claimed the barn was within the curtilage,188
a holding the Supreme Court reversed in United States v. Dunn.189 Examining several “factors” deemed to bear upon the
“open fields”-curtilage distinction, the Court first concluded that the barn in fact was outside the curtilage.190 The importance
of that conclusion, in the majority’s judgment, was that consequently the officers at the time of their viewing were
themselves outside the curtilage and thus could not have been engaging in Fourth Amendment activity. Why Because
“under Oliver and Hester, there is no constitutional difference between police observations conducted while in a public place
and while standing in the open fields.”190.1 Dunn thus was governed by the previous Term’s decision in California v.
192