UNIVERSITY OF THE DISTRICT OF - UDC Law Review

ackyard of the building was completely removed from the street and surrounded by a chain link fence. … While the
enjoyment of his backyard is not as exclusive as the backyard of a purely private residence, this area is not as public
or shared as the corridors, yards or other common areas of a large apartment complex or motel. Contemporary
concepts of living such as multi-unit dwellings must not dilute Fixel’s right to privacy any more than is absolutely
required. We believe that the backyard area of Fixel’s home is sufficiently removed and private in character that he
could reasonably expect privacy.229
Yet another relevant consideration is the precise manner the police observation occurs, especially the degree of scrutiny
which is involved. In those cases saying, in effect, that no justified expectation of privacy was intruded upon because the
police entered as would a tradesman or any other visitor, it is ordinarily the case that the police merely saw from their vantage
point what would have been readily apparent to anyone coming upon the premises. Illustrative is State v. Detlefson,230 where
police came on the front porch and saw marijuana plants there; the court understandably said that defendant had no
“reasonable expectation of privacy in the front porch of his home where, presumably, delivery men and others were free to
observe the plants there.” Delivery men, unlike the police, might not have recognized the plants as marijuana, but that is not
significant, as the critical fact is that the police did not do anything on the porch that any other visitor would be unlikely to
do. When that is not the case, the expectation-of-privacy issue deserves another look.
An excellent example is provided by Wattenburg v. United States,231 where the defendant, who resided at and operated a
certain motel, claimed that federal officers conducted an illegal search when they examined a stockpile of cut trees near the
motel and determined that the trees had been removed from government lands without authority. The stockpile was twenty to
thirty-five feet from the motel, but was only five feet from a parking area used by personnel and patrons of the lodge. The
court first reached the dubious conclusion232 “that the stockpile of Christmas trees here in question was within the curtilage
of Wattenburg’s abode at the Hideaway Lodge, and therefore, at least as to him, protected by the Fourth Amendment,” and
then proceeded to assess the facts under the “more appropriate” Katz test. The court concluded that the conduct of the agents
was also a search under that test, which would seem equally dubious if a mere observation of the Detlefson type had
occurred, for it would not seem that motel grounds so close to the much-used parking area could themselves be characterized
as private. But more than a casual observation was involved, and this made the difference:
Measured by the test we suggest, Wattenburg was, without doubt, protected by the Fourth Amendment from a
warrantless search and seizure of the kind described above. In the daytime and in the dark, from 2:35 p.m. to
9:00 p.m. on November 8, 1965, several law enforcement officials meticulously went through the stockpile of
trees …. It must have been necessary to move most of the trees from one place to another in order to make the
kind of examination which the officers carried on. Lights must have been required as the men moved about
after dark and there was undoubtedly a certain amount of noise. There can be no doubt that Wattenburg, in
placing the stockpile this close to his place of residence, sought to protect it from this kind of governmental
intrusion.
Whether the foregoing analysis can in all respects be squared with the Supreme Court’s more recent decision in Oliver v.
United States233 is not entirely clear. In the course of reaffirming the “open fields” doctrine,234 the Court there seemed to
attach greater significance to the common law “curtilage” concept than had, for example, the lower court in Wattenburg. The
Supreme Court in Oliver asserted that the curtilage, as distinguished from open fields, is “part of the home itself for Fourth
Amendment purposes,” and that “Fourth Amendment protection” extends to the curtilage as “defined [by] the common law.”
But the Court stressed also that this definition necessitates “reference to the factors that determine whether an individual
reasonably may expect that an area immediately adjacent to the home will remain private.” This suggests that it is still quite
proper to take into account the nature of the premises in the manner previously described, but it is less apparent that the
precise manner of the police observation remains as a separate consideration.
(g) Looking into or listening at adjoining lands. If, as concluded above, there are certain parts of the grounds surrounding a
residence which are private in the Katz sense, so that a physical intrusion upon them is covered by the Fourth Amendment, it
remains to be determined whether it is also a search to view objects or activities on those grounds or to overhear
conversations occurring on those grounds while at some other location. In many instances the answer is no,235 but this is not
inevitably so; depending upon the circumstances of the individual case, it may appear that the occupant of the premises in
question had a justified expectation of privacy against such intrusions.
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