Daily Development for
Monday, April 13, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

FOURTH AMENDMENT; WARRANTLESS SEARCH; OPEN FIELDS DOCTRINE: Under the "open fields doctrine," an environmental inspector's entry onto Defendant's fenced land through a locked gate was not a violation of his Fourth Amendment rights and did not justify the lower court's grant of a new trial.

United States v. Rapanos, 115 F.3d 367 (6th Cir. 1997).

Defendant was convicted of knowingly discharging pollutants into wetlands, a criminal violation of the Clean Water Act. Following the conviction, the district court found that it had committed plain error by allowing the testimony of a Department of Natural Resources agent regarding observations he made during five warrantless entries onto Defendant's land. The lower court ordered a new trial.

The Sixth Circuit reversed and reinstated the conviction. The court held that under the "open fields" doctrine, first recognized by the Supreme Court in Hester v. United States, 265 U.S. 57 (1924), individuals do not have a Fourth Amendment privacy interest in their "open fields." The government's intrusion onto such land is not an "unreasonable search" and does not require a warrant. The court found here that Defendant's property was an open field notwithstanding the fact that it was surrounded by a fence, could only be entered through a locked gate, and had already undergone extensive development. Accordingly, the government required no warrant for entry and the admission of the DNR agent's testimony did not constitute error.

Comment 1: Your editor, candidly, couldn't believe that this case represented the uncontroverted controlling law on this point, so he checked with his Criminal Procedure colleagues on the UMKC faculty. How can there not be an expectation of privacy when one erects a fence with a locked gate? Professor Ellen Suni responded: "If something is an "open field," the fact that one attempts to create an expectation of privacy by using fencing, no tresspassing signs and the like will not convert it into a protected area. . . . [But the protection is somewhat more extensive for private homes] . . . In Oliver v. United States, 466U.S. 170 (1984) [ which reaffirmed Hester], the Supreme Court . . . noted that the Fourth Amendment protect "curtilage" the area to whichextends the intimate activities associated with the sanctity of the home. The court in U.S. v. Dunn had explained that the factors to determine whether an area is curtilage relate to the proximity to the home, whether the area is included within an enclosure around the home, the nature of the uses of the area, and the steps taken to protect it. These factors were approved in Oliver. "

\Professor Mark Berger added: "The [Oliver] Court observed that open fields do not provide the setting for those intimate activities that the (4th) Amendment is intended to shelter from government interference or surveillance.'"

Comment 2: All of this tends to underscore the point the editor has made regarding the civil forfeiture cases: Under current laws and Constitutional interpretations, there is very little protecting private property owners from a police state other than prosecutorial discretion controlled by a vigilant press and a responsive political process. If the government ever decides you are a "bad guy," you're lumped in a class with the murderers and the drug smugglers, and you'll find that this isn't the "land of the free" for the likes of that ilk.

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