UNIVERSITY OF THE DISTRICT OF - UDC Law Review

Certainly no justified expectation is present when the physical facts are such that the incriminating objects or activities were
readily visible to persons on the public way236 or neighboring lands.237 Illustrative is State v. Pontier,238 where police, after
receiving an anonymous tip that marijuana was growing in the back yard of a certain residence, entered a neighbor’s back
yard with permission and from there looked over a short picket fence and through some overhanging foliage and saw
marijuana plants. Noting that in Katz the Court had stated that “[w]hat a person knowingly exposes to the public, even in his
own home or office, is not a subject of Fourth Amendment protection,” the Pontier court concluded:
The back yard of appellant’s home was enclosed by a waist high picket fence and foliage growing at various
locations along the fence. Planting marijuana plants in a back yard enclosed only by a picket fence and
intermittent vegetation is not an action reasonably calculated to keep the plants from observation since it is
certainly foreseeable that a reasonably curious neighbor, while working in his yard, might look over the picket
fence into appellant’s yard and see the plants, whether or not he knew what they were.
More difficult are those cases in which the yard is much better secured from outside viewing and the police consequently
have to engage in conduct which arguably exceeds that which could be expected of “a reasonably curious neighbor.”
Consider, for example, the facts of United States v. McMillon,239 where the back yard was enclosed by a six-foot high stake
fence overgrown with vines and bushes. The officers managed to pierce this visual barrier by standing on a neighbor’s back
porch, which was separated from defendant’s porch by a partition and was slightly recessed from defendant’s porch. One
officer was able to photograph the plants in the yard by standing on his toes or a box, but the other officer testified that he
was able to videotape the plants by aiming the camera over the fence while holding it at eye level. The court concluded that
no search had occurred:
There is no doubt that the officers had the right to stand on the porch, having been invited to do so by occupants of the
premises.240 Nor are the indications that some of the observations were made by the officers while standing on their
toes, or leaning around the side of the partition, or perhaps standing on a box on the porch sufficient to constitute their
actions a search within the proscriptions of the Fourth Amendment. As stated by Judge Leventhal in James v. United
States241 …: “That the policeman may have to crane his neck, or bend over, or squat, does not render the doctrine
inapplicable, so long as what he saw would have been visible to any curious passerby.”
If it is true that one of the officers was able to make the observations from eye level, then the result reached in McMillon may
be correct. The case comes very close, however, to the limit of non-search surveillance. Although admittedly yards are not as
private as houses, “the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent
with the aims of a free society”242 if all such nontrespassory observations were unregulated by constitutional restraints.
Surely there comes a point at which it can be said that the householder has done all that can be reasonably expected of him to
keep his yard private, even though the police by some extraordinary measure have been able to breach that privacy without
physical entry. Thus, if a person has surrounded his property with a solid wooden fence eight feet high,243 it is fair to say that
he has a justified expectation of privacy there even if the police are able to locate some small crack or knothole by which to
peer inside.244 Similarly, if the police can view the incriminating object in defendant’s back yard only by squeezing into a
narrow area between the neighbor’s garage and defendant’s fence, almost blocked off by heavy foliage and weeds, and from
that vantage point using a telescope,245 such viewing deserves to be characterized as a search under the Katz test.246
Sometimes the incriminating object or activity is not observable from a neighbor’s land, but can be (and is) seen from some
other portion of the defendant’s land. In such circumstances, the “open fields” doctrine247 comes into play, so that such
viewing by the police is unobjectionable-even if what is seen is itself within the protected area called the “curtilage”-if the
police vantage point was itself in the “open fields.” Illustrative is State v. Rogers,248 where police came onto defendant’s
tract of wooded property and viewed marijuana plants growing in the garden near his house. Though the garden itself was
deemed to be within the curtilage, the court concluded no search had occurred because, in cases of this genre, “the place of
observation is normally more important than the place observed.”249 In reaching that holding, the court emphasized “the
absence of two factors that could have changed our conclusion: affirmative action by defendants to block observation of the
garden from the surrounding woods and use of technology by the trooper to aid his observation.”
Sometimes the police obtain a view of residential lands from the air by using a helicopter or an airplane.250 Two California
cases illustrate the possibilities. In People v. Sneed251 officers saw marijuana plants growing in defendant’s back yard from a
helicopter which hovered as low as 20 to 25 feet above the property; in People v. Superior Court252 an officer using
binoculars saw stolen auto parts in defendant’s back yard from a plane which flew over the area at an altitude of about 500
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