OLIVER v. UNITED STATES

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ORAL ARGUMENT OF FRANK F. HADDAD, JR., ESQ., ON BEHALF OF PETITIONER OLIVER

Chief Justice Warren E. Burger: We'll hear arguments next in Oliver against United States and the consolidated case.

Mr. Haddad, I think you may proceed whenever you are ready.

Frank E. Haddad Jr: Mr. Chief Justice, and may it please the Court:

The state police without a warrant, probable cause or exigent circumstances searched the Petitioner Oliver's farm and found marijuana growing in a corn field.

Oliver moved to suppress the evidence in the District Court.

That motion was sustained.

A panel of the Sixth Circuit affirmed.

On petition for rehearing en band the Sixth Circuit held that the per se open fields doctrine permitted the state police to conduct the open field search, and that holding by the Sixth Circuit was contrary to the position of seven other circuits who have rejected the per se open fields doctrine as well as most of other state courts--

The issue presented in this case is whether the Court's decision in Katz decided in 1967 holding that the Fourth Amendment protects an individual if he has an actual and a reasonable expectation of privacy modified the per se open fields doctrine to the extent of regarding a search warrant or requiring a search warrant for the search of a highly secluded field from whence the public is excluded and where a reasonable expectation of privacy is shown to exist on behalf of the Petitioner.

The facts in this case are that a police officer, a Kentucky State Police officer, received an anonymous tip and based on that anonymous tip, the anonymous tip being that these was marijuana being grown on the Oliver farm.

Based on that tip he and another police officer without a search warrant and without probable cause and without having any exigent circumstances proceeded to Mr. Oliver's farm.

Mr. Oliver's farm has proved to have been 22 miles from the nearest town in a very, very remote area of Kentucky.

To get to the field that they ultimately found the marijuana growing in it was necessary for the police officers to enter Mr. Oliver's property, drive several hundred yards to his house and then continue driving nearly another mile into the property.

During this travel according to Mr. Oliver and there is some dispute about the number, but there were a number of posted No Trespassing signs.

They traveled on beyond the house as I say for another mile when they came upon a locked gate blocking the roadway.

This locked gate also had on it a No Trespassing sign.

The officers parked their car not being able to go beyond that gate in the car and walked around the gate.

This area was fenced within the farm and the proof is that the farm had boundary fences around it as well.

After going past this gate or walking around this gate they proceeded about a quarter of a mile on when someone yelled to them,

"Come back. "

"There is no hunting allowed in this property. "

The officers walked back to the barn on the camp or where this person was standing and they could not find the person that they had seen who yelled at them.

So they proceeded on for another approximate quarter of a mile until they get into the property to the field approximately a mile and a half.

They traveled on that last journey, that last quarter mile journey, they travelled apart of that way through very dense underbrush and very dense wooded area.

They finally came upon the corn field and they could only when they got to that corn field observe that marijuana was growing in the corn field.

They could not see that marijuana from any other position until they had driven back approximately a mile and a half and stood actually on the field or in the field.

Unidentified Justice: That is they could not see.

I suppose somebody in a helicopter could.

Frank E. Haddad Jr: Yes, they could.

The situation that we have here is that the officers after finding this marijuana they came back out and while traveling on the road they saw Mr. Oliver and ultimately arrested him and charged him with manufacturing and growing marijuana in violation of the federal statute that was involved.

The holding in Katz and many cases before the Katz case was that searches conducted outside the judicial process without prior approval by a magistrate were per se unreasonable subject to a few well delineated exceptions.

The government in this case contends that the open fields doctrine is the exception in this case, that this search should be held legal.

Our contention is that since Oliver excluded the public... the distinctions we will make in a moment... this was not an open field since he had excluded the public and took such precautions as I have outlined to exclude everyone from it.

The definition of--

Unidentified Justice: So you are not asking us to overrule the Hester case then?

Frank E. Haddad Jr: --No, sir.

The definition of open fields has changed through the years.

In Hester the Court held that the police could search in an area from which they are not excluded.

There are other views of Hester holding that it is a per se open fields doctrine.

Unidentified Justice: Do we know that much about the facts in Hester, Mr. Haddad?

It is just that very kind of conclusory statement in Justice Holmes' opinion.

Frank E. Haddad Jr: Yes, sir.

I think that you are correct in that, but there was a holding there or some holding to the effect that the defendant himself is who led the police to the evidence by passing the jugs of whiskey to the other person that was on the property at the time which the officers were able to observe.

They also held in that case that there were other people who came onto and off of the property even while the officers were there and after the arrest had been made.

So we next come to the Olmstead case about four years later when there was a holding that has been referred to as the per se locational theory, and that was that anything outside of the curtilage was considered to be an open field and no warrant was needed.

In the Katz decision this Court rejected the Olmstead's per se theory of the open field doctrine, and in more recent cases since Katz the holding has been that a field is not open if the public was excluded.

In the Air Pollution Variance Board v. Western Alfalfa case decided in 1974 the Court analyzed that a federal agent can trespass onto an area where the public is not excluded and view that which was exposed to the public without violating the Fourth Amendment.

So they held that if the public was not excluded the area was an open field, and in that case they held, which was an OSHA warrantless search case, they held that the search was okay and legal.

In Marshall v. Barlow a few years later, some four years later, this Court using the same analysis held that without a warrant the government agent is in no better position that a member of the public and observations capable of being made by the public can be made by the agent without a warrant.

In that case the Court held as unconstitutional the authorization under the OSHA Act or search without a warrant because it permitted a warrantless government agent to search in an area where the public was excluded.

So we get into that fine distinction that this Court has made that if the public was excluded the area is not an open field.

If the area is not an open field then the Fourth Amendment applies.

If the Fourth Amendment applies then we must use the two-part Katz test to determine if the Fourth Amendment has been violated.

When we look at the first part of the Katz test which is was there an expectation of privacy we find in this particular case that this man had his property fenced.

He had it posted throughout with No Trespassing signs.

He had a gate to the road which had a chain and lock on it.

There was a travel back into the farm approximately a mile and a half into a secluded area through wooded areas to find the marijuana growing in the corn field.

There was also the additional, which the Sixth Circuit dissenting opinion put a lot of weight upon... There was also the additional fact that somebody on the property had hollered to the police officers that no hunting was allowed and to come back or to come back, no hunting was allowed.

So when we apply that and as the District Court judge said in his memorandum... opinion, short of guards at the entrance it is difficult to see what else the defendant could have done to assert his privacy interest in the property--

Unidentified Justice: Mr. Haddad, perhaps this varies from place to place in the country, but wouldn't you agree that putting a Nc Hunting sign on premises does not necessarily mean that the owner wishes to exclude people who do not intend to hunt?

Frank E. Haddad Jr: --This was a No Trespassing signs throughout here.

It is the same I would imagine as No Hunting, but it said No Trespassing.

Unidentified Justice: It said No Trespassing?

Frank E. Haddad Jr: Yes, sir.

All of them said No Trespassing.

Unidentified Justice: Well, then what comfort do you draw from the additional conversation about hunting?

Frank E. Haddad Jr: None except that I felt that... The Sixth Circuit dissenting opinion felt that that was something added to show that there was an expectation of privacy when someone on the property yelled,

"Come back. "

"There is no hunting allowed on the property. "

Unidentified Justice: Well, that might out the other way.

It might indicate to people if you are not hunting it is okay.

Frank E. Haddad Jr: I do not think so, not with the clear delineation of all of these signs on the property and particularly with one on that locked gate that said No Trespassing.

The government really does not realize the significance of a No Trespassing sign in that rural area of Kentucky.

It means just what it says, no trespassing, and the society in the second part of the Katz test was was this expectation of privacy one that society is prepared to accept as reasonable.

Unidentified Justice: Would you say that that is true?

Suppose the officers had come up here to this sign and No Trespassing but they see some marijuana growing right inside the fence.

Frank E. Haddad Jr: That would be plain view, Your Honor, and that would be an exception.

Unidentified Justice: Well, I know but plain view never lets you into a private place.

Frank E. Haddad Jr: It would in this instance I am afraid.

Unidentified Justice: Why?

Why?

There is a No Trespassing sign.

Go get a warrant.

Frank E. Haddad Jr: But if it comes--

Unidentified Justice: You cannot stand outside a house and look through the window and see contraband or guns lying on the table and go in the house without a warrant.

Frank E. Haddad Jr: --I agree with Your Honor, but if this were in plain view then the open fields--

Unidentified Justice: Well, the gun would be in plain view through the window in a house.

Can you enter the house without a warrant?

Frank E. Haddad Jr: --No, sir.

But the point is that if this were in a place where the public could observe it then it is an open field.

If it was a place where the public could observe it without trespassing in this situation then it would be--

Unidentified Justice: Then they may trespass?

Frank E. Haddad Jr: --Well, it is an exception.

It is another exception to the rule.

It does not permit the trespassing.

It permits--

Unidentified Justice: Well, at least then the sign does not mean what it says.

Frank E. Haddad Jr: --No, sir.

I disagree, sir.

The sign means exactly what it says, no trespassing.

If you see something... You could not see it in this case.

Everybody agrees and the government stipulates--

Unidentified Justice: Well, if you are relying upon the sign to give you an expectation of privacy apparently it does not all the time.

Frank E. Haddad Jr: --I am not depending upon the sign alone as the government would have the Court believe in their brief.

We are depending upon all of these circumstances in this particular case--

Unidentified Justice: What you are saying is that a field can have some expectation of privacy, but in no event would it acquire the expectation of privacy that you would have in a house because of the different treatment of what is seen in plain view from outside the field.

Frank E. Haddad Jr: --Exactly.

I think that is where your Hester case comes back into play, and it would permit the search if it was visible to the public or from an area where the public was.

Then whether there is trespassing signs or not you could go onto the property and seize that in the plain view doctrine.

Unidentified Justice: What difference does it make that this could have been seen from the air?

Frank E. Haddad Jr: Well, it does not make any difference at all in this case because if it can be seen and the air searches have been held legal because the air is a place where the public is expected to be traveling in the air over commercial planes or in private planes or in anything else.

That would be permissible.

Unidentified Justice: What about a police helicopter looking for marijuana?

Frank E. Haddad Jr: It would be permissible and the cases have so held, sir.

Unidentified Justice: Mr. Haddad, is the field on the Cumberland River?

Frank E. Haddad Jr: Yes, sir.

Unidentified Justice: And the Cumberland is navigable?

Frank E. Haddad Jr: The Cumberland is navigable but there was a stipulation entered into this record by the government and the defense attorney that this property, these particular fields could not be observed from the Cumberland River.

There is a stipulation in the record to that effect.

Unidentified Justice: Here is a police helicopter flying around over this corn field or over this marijuana field in which corn was growing, one or the other--

[Laughter]

The police see marijuana growing.

They then radio down to the police car that is stopped right by the No Trespassing sign.

May the police then go right on into the corn field?

Frank E. Haddad Jr: Well, I think they would have right at that point under the open fields doctrine because any member of the public could do the same thing, could fly around in the air in a helicopter and observe that.

Unidentified Justice: Well, there is not much of an expectation of privacy then is there in that corn field?

Frank E. Haddad Jr: There is for people who walk onto the ground where there are No Trespassing signs and all these other things.

The second part of the Katz test is whether or not society... the expectation of privacy is one that society is prepared to accept as reasonable.

We say that it is.

Certainly society is ready to accept as reasonable a farmer's right to exclude other people from his property, and certainly there could be a valid presumption that a reasonable presumption exists that society would not favor warrantless government intrusions.

Thank you.

Chief Justice Warren E. Burger: Ms. Zeegers.

ORAL ARGUMENT OF DONNA L. ZEEGERS, ESQ., ON BEHALF OF RESPONDENT THORNTON

Donna L. Zeegers: Mr. Chief Justice, and may it please the Court:

In State of Maine v. Richard Thornton the area in question was not as a matter of fact akin to an open field.

The area by its very nature of being a heavily wooded area was not akin to an open field.

It was not a field for one thing, and it was not open in any sense of the word.

If you will look at the information in this case starting from the affidavit by the police officer after he had made his warrantless search they made reference to an informant here who had told about marijuana growing in back of someone's trailer home in a heavily wooded area.

The police officer said in the affidavit as well that he went to the heavily wooded area and saw what he wanted to see and then asked the magistrate to give him a search warrant to search the heavily wooded area.

Also at the suppression hearing it is very clear from the record that the area searched was in fact woods and not fields.

There were photographs.

An aerial photograph in particular showed that the complete property except for some very small patches, smaller than this table, were in fact open.

The rest of it was a completely heavily wooded area.

The police themselves made testimony that the area that they searched was heavily wooded.

Mrs. Thornton's testimony, the defendant's wife's testimony, was also that the area was heavily wooded.

Therefore, the Supreme Judicial Court of Maine should be free as a matter of fact to determine that the nature of the particular area was not an open field.

It was in fact closed woods and secluded woods.

Unidentified Justice: Then let me take you back to the questions we were putting to your colleague about a helicopter or a light plane flying over the area taking pictures and then presenting the pictures to a magistrate with enlargements showing that there were marijuana plants and getting a warrant.

What would you say about that?

Donna L. Zeegers: Yes.

Mr. Chief Justice, my feeling on that would be that if they made an aerial search that may have been enough to establish probable cause to get a search warrant.

Well, in my situation it may have been difficult to in fact observe marijuana growing because the patches were so small in this heavily wooded area.

Perhaps if they had binoculars they might have been able to see them.

But if it were a large area and they were easily seen, then that would have been enough to establish probable cause.

But in fact there would be not a privacy violation from the air to the extent of the privacy violation of police actually coming onto your property.

In terms of the individual's expectations the individual expects that people are not going to come onto his private property, but the individual does not have as great an expectation that people may not see things from the air.

It is important to note that there is no definition of open field in the Hester case, and I think because of that Maine certainly should be free to determine whether or not an area searched is an open field or it is not an open field.

It is important to note also that the Maine court never rejected the open fields doctrine nor did they reject Hester.

In fact, they have applied the open fields doctrine in cases in Maine and they cited three or four cases in the opinion where the open fields doctrine had been applied stating--

Unidentified Justice: You are not suggesting, Ms. Zeegler, that the Maine Supreme Judicial Court decided this case wholly on a state law ground.

Donna L. Zeegers: --Well, Mr. Justice Rehnquist, I do feel that there is adequate and independent state grounds for this decision, and the reason that I am saying that is because the State of Maine had to talk about federal cases because they had to correct the erroneous assumptions of Petitioner in the case regarding the application of Katz and Hester to this case.

Unidentified Justice: If you would look at pages A-12, A-13, A-14 in the Petition where you set out the opinion of the Supreme Court of Maine, when they are talking about expectation of privacy they first talk about Hester and Katz and then they go on and say the Maine cases are in accord.

Now that sounds to me as though they are certainly primarily resting it on federal constitutional grounds.

Donna L. Zeegers: Well, again, Your Honor, it is my position that the court had to discuss Hester and Katz because those were the cases that were raised by the Petitioner on appeal so they had to discuss them, but then they said we are in accord in determining whether or not there was a search.

Then the court cited 18 Maine cases to support that decision of whether or not there was a search.

Therefore, the federal cases if they were used other than just to correct their assumptions they were used only as guidance in Maine similarly for adopting the--

Unidentified Justice: Weren't the Maine cases in turn relying on federal law?

Donna L. Zeegers: --It is my position that some of the cases did cite Katz but not all of them, and it is very clear from the face of the opinion that the court did adopt its own version of a search and did--

Unidentified Justice: Well, of course, all we can do here is decide the federal question.

Donna L. Zeegers: --That is right.

Unidentified Justice: If you are correct that the decision below rested as well on Maine, the ground rule would still prevail.

Donna L. Zeegers: That is correct.

Unidentified Justice: On remand.

Donna L. Zeegers: Yes, sure.

In terms of the Maine Supreme Judicial Court's holding on the applicability of the open fields doctrine that is completely in accord with its own prior decisions and with decisions of this Court.

The two factual circumstances which must be considered in Maine before the open fields doctrine applies are the openness with which the activity is pursued, whether the activity is open and patent.

Number two, the lawfulness--

Unidentified Justice: How may trees do you need to get rid of the open field?

Donna L. Zeegers: --Well, I think certainly in this case we had no field at all.

There were only trees on this property, and it is significant to note that nobody could have seen these tiny patches in amongst the fields from any other land other than the defendant's land.

They could also not been seen from the defendant's driveway, from the defendant's house, from neighboring land or from the road.

Unidentified Justice: So you do not want it to apply to anybody but a field of this type?

Donna L. Zeegers: I am sorry.

I did not hear you.

Unidentified Justice: I still do not know what field this is.

I do not know how many trees are there.

Donna L. Zeegers: How many trees are there?

There are 38 acres of trees in this case.

Unidentified Justice: How close are the trees?

Donna L. Zeegers: They were right next to the trees.

The little patches were right next to the trees.

The trees completely surrounded them.

Unidentified Justice: But you could see them.

Donna L. Zeegers: You could see them only when you got onto the land.

You could not see them from neighboring land.

Unidentified Justice: Not with good binoculars.

Donna L. Zeegers: Not with good binoculars even.

Unidentified Justice: Is that agreed by both sides?

Donna L. Zeegers: That particular issue has not really been addressed.

I have been on the property myself and I could tell you that, but that was never raised in the lower court.

In terms of the other factual aspect for the applicability of the open fields doctrine was the lawfulness of the officers' presence during their observation of what is open and patent, whether the police have as much right to be in a position of observation as the defendant or the public and whether the permission was given or whether the area was exposed to public view.

It is important to note that Petitioner incorrectly cites the holdings on this issue throughout its brief and then uses that holding as a foundation for saying that the court used only a trespass theory in coming to its opinion.

That, of course, is not the case.

This applicability of the open fields doctrine is completely in accord with the Air Pollution Variance Board case where the open fields doctrine was applied to an area that was visible to the public and from which the public was not excluded.

The visibility of the public standard in Air Pollution is as same as the openness standard in Maine v. Thornton.

Unidentified Justice: Can I put the same question I put to your friend in the other case?

Suppose an inspection of the property from a helicopter and they got down low enough to see through these trees and they saw marijuana.

Could they radio out to a police car at the edge of the property and could the officers in the car then walk onto the property and inspect further?

Donna L. Zeegers: Well, I think the threshold question there would be whether or not there was a search.

If the--

Unidentified Justice: Well, that is what I am asking.

Donna L. Zeegers: --Yes.

If the air craft was so low as to violate their privacy and--

Unidentified Justice: Well, suppose it wasn't.

Donna L. Zeegers: --Suppose it was not?

Then it would be held not to be a search and they could have enough probable cause--

Unidentified Justice: Well, why could the officers nevertheless enter the property?

Donna L. Zeegers: --They could not enter the property.

What they could do is get probable cause and get a search warrant.

Unidentified Justice: Well, I am asking you could the officers at the edge of the property when they received the information from the helicopter could the officers then enter the property without a warrant?

Donna L. Zeegers: No, Your Honor.

I do not believe so because there would be no exception to the warrant requirement in that situation.

Viewing property from the air only can establish probable cause.

Unidentified Justice: I thought that what privacy there is has already disappeared.

As a matter of fact there was not any privacy from the police.

The police would already know exactly what is on the property.

Why shouldn't it be considered an open field then?

Donna L. Zeegers: Because the... Well, number one, the area was not an open field.

The state court addressed that.

Unidentified Justice: But it is an open field when a helicopter takes a picture or observes it and concludes that that is marijuana.

Is it not then an open field?

Donna L. Zeegers: Well, in terms of what the... The openness of course, has to be the key here, and in Maine they say that the area has to be open and because they see it does not mean that it is open.

Unidentified Justice: That pretty well leaves out the whole State of Maine doesn't it?

[Laughter]

Donna L. Zeegers: That is right.

It does, Your Honor.

I would like to reserve the rest of my time for rebuttal.

Thank you.

Chief Justice Warren E. Burger: Very well.

Unidentified Justice: Before you sit down, could I ask you are you familiar with Mr. Haddad's case in Kentucky?

Donna L. Zeegers: Yes.

Unidentified Justice: Do you think your facts are a little weaker than his facts?

Donna L. Zeegers: Well, I think that our facts are a little bit different in terms of our area being a completely wooded area.

I think our facts are stronger in this situation.

We did not have a gravel road that the police went onto so I think our facts are stronger in that situation.

We did not have a locked gate as Oliver did have so I think they balance each other out.

Unidentified Justice: Thank you.

Chief Justice Warren E. Burger: Mr. Moss.

ORAL ARGUMENT OF WAYNE S. MOSS, ESQ., ON BEHALF OF PETITIONER MAINE

Wayne S. Moss: Mr. Chief Justice, and may it please the Court:

Fourth Amendment protection does not apply to Mr. Thornton's woods because any subjected expectation of privacy he entertained in his woods was unreasonable as a matter of Fourth Amendment law.

Subjected expectation may have been rational as a matter of property law, but the Fourth Amendment does not protect property rights.

The Fourth Amendment protects people from unreasonable governmental searches and seizures.

Unidentified Justice: Do you really believe that?

Wayne S. Moss: Yes, I do.

Unidentified Justice: Of course, the court said it.

Wayne S. Moss: Yes, we do believe that that the Fourth Amendment protects persons, houses, papers and effects from unreasonable governmental searches and seizures.

Unidentified Justice: Well, that sounds like some property to me.

I say, when you name the four things some of them are property rights.

Wayne S. Moss: But the intent here is to protect an underlying core zone of privacy which is essential for the individual to enjoy some fundamental level of freedom in our society.

Unidentified Justice: But don't you think that there is substantial property law involved in determining whether there is this expectation of privacy or not?

Wayne S. Moss: There can be property law involved.

In a property right in excluding others there is a privacy interest that adheres in that property right in excluding others.

But the primary purpose of the Fourth Amendment though is not to protect that property right but to protect a core zone of privacy.

The framers put forth certain examples as to what would constitute that core zone of privacy and they said persons, house, papers and effects, and we contend that or agree that it could also include other places which a person personalizes by his activity by construction and use to make like a home.

This core zone of privacy, however, would--

Unidentified Justice: But no yard or other adjacent area could in your view ever be made so as to invoke Fourth Amendment concerns?

Wayne S. Moss: --There could be a buffer zone around the house, and in suburban and urban areas there very well may be a buffer zone around the house to which Fourth Amendment protections would apply in order to preserve the integrity and security of people within the house itself.

Unidentified Justice: But no other part of a field or a farm or a piece of property in your view?

Wayne S. Moss: Yes.

That is our position.

So that--

Unidentified Justice: You say that the entry is legal?

Wayne S. Moss: --The entry here in this case?

It is legal... It is not unconstitutional.

There may be a problem as far as property law goes, and there may even be a problem under Maine law as far as criminal trespass goes, but--

Unidentified Justice: What if the owner of the property is there at the gate, and the officers say this is an open field and we have probable cause to believe there is marijuana down at the end of that path and the owner says awfully sorry but you can't come on?

May they forcibly enter?

Wayne S. Moss: --At that particular point as a matter of constitutional law they can enter.

As a matter of property law they would get into trouble, but there would be no problem as far as constitutional law goes.

Unidentified Justice: They would just be in trouble with Maine but not with the federal government.

Is that what you are suggesting?

Wayne S. Moss: That is exactly what we are saying that... Even in Katz itself this Court recognized that the Fourth Amendment cannot be translated into a general constitutional right of privacy.

Unidentified Justice: So that in your view there is just nothing a land owner can do outside the house to invoke Fourth Amendment protections which I take it is the answer you gave Justice O'Connor a minute ago.

If the land owner himself out there with a gun cannot keep them out or cannot create any expectation of privacy, nothing can.

Wayne S. Moss: That is our position and I would like to explain that.

Unidentified Justice: May I just ask also that doesn't even require probable cause as I understand you.

Wayne S. Moss: Correct, yes.

Unidentified Justice: It wouldn't even require reasonable suspicion.

The officer could just go up and say we are not sure.

There might be marijuana here.

We are going to search.

They can do it.

Wayne S. Moss: Yes.

Fourth Amendment protections would not apply at all.

Unidentified Justice: Is your position consistent do you think with some of the administrative search cases from this Court?

Wayne S. Moss: Which cases do you have in mind?

We think our position is consistent with Western Alfalfa and also with Camar and Say which are mentioned in Western Alfalfa so we do not see any problem there.

I would like to return to Justice White's question as to what a land owner might be able to do to or whether he can create any reasonable expectation of privacy in his fields and woods.

Our position is that simply by putting up perimeter fencing and boundaries without actually personalizing the woods and fields themselves but just leaving them either in an undeveloped or in their agricultural state that alone is not sufficient to create any Fourth Amendment interest in those fields and woods.

He must do substantially more than that.

He must personalize the area in order to create a Fourth Amendment interest in the fields and woods, and without such personalization--

Unidentified Justice: I take it that your position doesn't go as far as to say that an officer could... The land owner is standing at the gate.

The officer says

"We think there is some contraband sitting down there at the end of this path or some evidence or something. "

The land owner says,

"Well, you can't come on. "

You say that as far as the Constitution is concerned the officer may enter but then he may search, but may he seize?

Wayne S. Moss: --Yes, he may seize in the sense of--

Unidentified Justice: Well, there certainly is an interest in what is being seized different from the interest in the land.

Wayne S. Moss: --Yes, that is correct.

Unidentified Justice: Except that then if you are legally there as far as the Constitution is concerned the items are in plain sight then I take it.

Wayne S. Moss: Yes.

That is our position that the items are in plain view.

Fourth Amendment protections attach to the seizure, Probable cause would be required in order to... If the officers had made a warrantless seizure in this case they would have had to have probable cause in order to make seizure.

Unidentified Justice: Supposing the items were buried so there is a gun buried in the field somewhere and they suspect and they go out and they dig for it.

Couldn't they do that?

Wayne S. Moss: Yes, they could.

Unidentified Justice: As soon as they saw it they would have their probable cause and they could seize it.

Wayne S. Moss: Yes, that is correct.

Once again it is the position that Fourth Amendment protections do not apply here.

Now in the situation that you just posed there might be some state trespass problems.

Unidentified Justice: I understand.

But the Constitution would not impose any obstacle to going into a property and digging around looking for a gun or body or anything like that.

Wayne S. Moss: Yes.

That is the State's position.

Unidentified Justice: Your position--

--Mr. Attorney General, what do you do with the word... What effect do you give to the word "effects" in the Fourth Amendment?

Wayne S. Moss: Effects are personal effects, but they do not actually reach as far as real estate or property.

Unidentified Justice: I didn't say personal.

I said effects.

Wayne S. Moss: Well, they said their effects which suggests personal effects.

Unidentified Justice: No, it doesn't to me.

It's my property.

Wayne S. Moss: Well, it does not say... In the Fifth Amendment they did use the word "property" but in the Fourth Amendment they did not.

Unidentified Justice: You only apply it to the personal property but not the real property.

That is your position?

Wayne S. Moss: Yes.

It would apply to personal property but not to real property.

Unidentified Justice: Give me any case that says that.

Wayne S. Moss: I am sorry.

I did not hear the--

Unidentified Justice: Give me a case that says that effects means personal property and does not mean real property.

Wayne S. Moss: --I think Hester is such a case.

Unidentified Justice: Hester did not say one... All it said was in one sentence that it applies to the house and does not apply to open fields.

That is all Hester says.

Wayne S. Moss: Hester said that the... and if I remember it correctly the exact sentence was something like the special protections of the Fourth Amendment extended to the people and their persons, houses and papers and effects do not extend to the open fields.

Then they said that the distinction between the open fields and persons, houses, papers, and effects is--

Unidentified Justice: I would like for you to show me that.

Wayne S. Moss: --Pardon?

Unidentified Justice: It is not in the opinion.

Wayne S. Moss: Yes, it is in the opinion.

It is in the opinion and I will read it if you like.

This is 257--

Unidentified Justice: Fifty-seven is the page--

Wayne S. Moss: --It is on page 59.

Unidentified Justice: --That is the last paragraph.

Wayne S. Moss: Right.

It says

"The special protection accorded by the Fourth Amendment to the people in their persons, houses, papers, and effects is not extended to the open fields-- "

Unidentified Justice: Period.

Wayne S. Moss: --Yes.

Unidentified Justice: It does not say anything about what an open field is.

Wayne S. Moss: That is true.

Unidentified Justice: Well, that is what I was trying to say that that does not help you.

He could have meant what?

He could have meant an open field was a forest.

It is your position I take it that when Justice Holmes said open field he did not mean a ten by ten flower garden or a vegetable garden in a lot that is 100 feet by 200 feet.

He is talking about something larger.

Wayne S. Moss: Yes.

That is correct, and he is not talking about something that is--

Unidentified Justice: Name me something in the opinion that gives you the idea that he meant something larger, the word "larger".

It is not in there.

It just says open field, and I interpret open field to mean one block, one acre or 87 square miles.

All could be open field.

Wayne S. Moss: --Yes.

That would be our position as well.

Unidentified Justice: So you could apply this only to an open field.

Wayne S. Moss: No, because we are saying that the Fourth Amendment itself is protecting only a core zone of privacy and once one is outside that core zone--

Unidentified Justice: Are you saying it applies only to a house?

Wayne S. Moss: --No.

We are saying--

Unidentified Justice: What further than the house?

Wayne S. Moss: --Pardon?

Unidentified Justice: What more than the house?

Wayne S. Moss: It could also include a buffer zone that might be around the house.

Unidentified Justice: What else?

Wayne S. Moss: It could also include areas outside the house which a person would personalize.

It could be a--

Unidentified Justice: Like a telephone booth--

Wayne S. Moss: --It could be a telephone booth--

Unidentified Justice: --A barn?

Wayne S. Moss: --It could be a barn.

It could be a tent that a person puts up in his woods and lives in, but it would not actually be the woods itself.

Unidentified Justice: The common law lumped together is the curtilage?

Wayne S. Moss: Yes, although we are not actually using a curtilage analysis.

We are talking about a core zone of privacy that the Fourth Amendment is designed to protect.

Unidentified Justice: Would the barn's location be relevant?

Wayne S. Moss: It could be if--

Unidentified Justice: If it were within the curtilage arguably it could, but suppose it were a mile away from the home?

Wayne S. Moss: --Yes, but we are agreeing though that Fourth Amendment protection would apply to a barn.

Unidentified Justice: Wherever located?

Wayne S. Moss: Yes, wherever the barn itself is located because that would be the type of--

Unidentified Justice: Personalized?

Wayne S. Moss: --Yes, and that would be--

Unidentified Justice: Personalized barn?

Wayne S. Moss: --Yes, in the sense that a person--

Unidentified Justice: I mean a barn is personalized.

Wayne S. Moss: --Yes, by construction and use in a way that fields and woods even fenced and posted ones are not.

The State of Maine's core concern here is that if the Maine court's holding is allowed to stand that it permits people to buy up large tracts of land and fence them and post them and then invoke Fourth Amendment protections for those fields and woods and then conduct elicit activities behind that fencing and posting and invoke the protections of the Fourth Amendment and thereby remain free from government investigation.

Unidentified Justice: People can buy houses and conduct illegal activity in them, too.

Wayne S. Moss: Yes, but the house is a core zone of privacy.

Unidentified Justice: I mean, your argument that they could use it illegally I do not know that that advances the inquiry, does it, because every area protected by the Fourth Amendment could be used for illegal purposes.

Wayne S. Moss: Yes, but--

Unidentified Justice: A yard house, a barn, a stable, whatever it might be.

Wayne S. Moss: --Yes.

The distinction, though, is in terms of the privacy interest in the house versus the fields and woods.

Unidentified Justice: Of course, as the Chief Justice suggests in the question in the earlier case if enough illegal activities are conducted in the house it may turn into a place of business.

Wayne S. Moss: Yes, it could, but we are not in any way saying that the Fourth Amendment would not apply to a place of business.

This case is not like Katz in that the court does not have to extrapolate Fourth Amendment principles to the 20th century phenomena of the telephone booth.

The fields and woods and farms that we are talking about here were in existence in the late 1700's when the Fourth Amendment was drafted.

The framers could have contemplated them.

Unidentified Justice: The pine trees look much the same.

Wayne S. Moss: The pine trees lock much the same.

They left pine trees, woods, fields... They left them out of the analysis of where Fourth Amendment protections apply, and there would even be... Our position is that there would actually be even less expectation of privacy now in fields and woods than there was in the 1700's because we now do have airplanes bringing whole areas of fields and woods into public view which would not have been open to view in the late 1700's.

Thank you.

Chief Justice Warren E. Burger: Mr. Horowitz.

ORAL ARGUMENT OF ALAN I. HOROWITZ, ESQ., ON BEHALF OF RESPONDENT UNITED STATES

Alan I. Horowitz: Mr. Chief Justice, and may it please the Court:

The relevant facts in the Oliver case can be stated quite simply.

Acting on information that Petitioner was growing marijuana on his farm police drove up a road onto the farm.

When a gate which contained a No Trespassing sign blocked that road they continued unobstructed on foot on a frequently used path around the gate and then down the road until they reached the marijuana field.

It is not disputed that the marijuana was not discovered until the officers were on Petitioner's property, but it is well settled that that fact alone does not require suppression on Fourth Amendment grounds.

The notion that somehow the area was particularly secluded and that there was dense underbrush is not really supported by the record.

The police here just walked down the road which is exactly what the information had told them where the marijuana would be--

Unidentified Justice: Mr. Horowitz, can I ask you just one question?

Would it matter under your submission even if it were totally secluded and secondly even if you had no suspicion your position still is the same is it not?

Alan I. Horowitz: --Well, to the extent that--

Unidentified Justice: As a matter of constitutional law.

Alan I. Horowitz: --Yes.

To the extent that the subjective expectation of privacy of the owner enters into it the fact that it may be very difficult to reach helps them to some extent.

Our position is that in an area like this there is still not a warrant requirement, that the privacy expectation is not there.

Unidentified Justice: Either there is total expectation of privacy... You say that is not to be considered in this case.

Alan I. Horowitz: Well, total subjective expectation of privacy.

Unidentified Justice: That is right.

Alan I. Horowitz: Well,--

Unidentified Justice: Total objective or subjective?

As I understand your position it is wholly immaterial.

Alan I. Horowitz: --Well, I do not think you can ever have a total subjective or objective expectation of privacy in an area like a field.

I mean there is always going to be access.

It is just a question of whether access is going to be more difficult or less difficult.

Unidentified Justice: You build a very high fence around and electrify it.

You can make sure that no human being can get in it--

Alan I. Horowitz: It would still open--

Unidentified Justice: --It is still open to the--

Alan I. Horowitz: --It is still open because it still does not have walls and it still does not have a roof so it is still open to view from the air.

Unidentified Justice: --That is enough, just the fact that it is open to visual inspection from the air is enough to destroy whatever other expectation of privacy there might be.

Alan I. Horowitz: I think that is the state of law as it is now.

I mean--

Unidentified Justice: That is your position.

Alan I. Horowitz: --We have two positions.

We suggest that at some point a person can take sufficient measures to exclude outsiders.

Unidentified Justice: So would you disagree with your colleague from Maine that... Say the owner is there at the gate and says,

"This sign means exactly what it says and this path is not open to the public. "

"Now just stay out. "

"I have an expectation of privacy and I am now enforcing it. "

Could the officers then enter?

Alan I. Horowitz: Well, the--

Unidentified Justice: As far as the Constitution is concerned?

Alan I. Horowitz: --Well, certainly if they had reasonable suspicion they could enter.

It seems to me that... I would think that he really has to take exclusionary measures--

Unidentified Justice: Well, he did.

He is.

He is standing there and he says

"If you are going to come on you will have to force your way on. "

Alan I. Horowitz: --Again I get back to that we have two positions.

It would be my position that the Constitution does not prohibit the officer from going on to the land at that point because it is still an open field.

Unidentified Justice: With or without an expectation of privacy?

I mean with or without reasonable suspicion?

Alan I. Horowitz: Yes, but certainly with reasonable suspicious.

I mean I can understand--

Unidentified Justice: It is terribly important because as soon as you say that you are acknowledging the Fourth Amendment has some application.

I thought your position was it had no application.

Alan I. Horowitz: --Well, again as I say I think we have two positions.

I think the state of the law as it is now is that these fields are open.

Fourth Amendment protections do not extend to these fields, and it is not a search when police officers go onto these fields.

Unidentified Justice: Your primary submission is that you need reasonable suspicion--

Alan I. Horowitz: That is our primary submission.

Unidentified Justice: --Like Maine's submission.

Alan I. Horowitz: Yes.

Unidentified Justice: That is your first position.

Alan I. Horowitz: Yes, that is our first position, but even--

Unidentified Justice: Aren't there some areas of this country where you could have fence riders with authority to shoot anybody who passes the fence?

Alan I. Horowitz: --I am not aware if the law supports any authority to shoot anyone for crossing a fence.

Unidentified Justice: Why can't the government be a little more straightforward in its position?

I do not mean to suggest anything... It seems to me that the way you answer the questions so far indicate that the government has a great deal of uncertainty as to exactly what its position is.

Alan I. Horowitz: I see I am not making myself clear.

It is our position that Fourth Amendment protections do not extend to these areas, but we recognize the possibility that at least where the land owner takes some serious measures to protect those areas and to create an expectation of privacy in those areas that the Court might disagree and the Court might take the view that there should be some Fourth Amendment protection for those areas.

In that event it is still our position that these areas can never have the sort of protection that is granted by the warrant clause and the probable cause requirement and at a minimum the police must be able to enter when they have reasonable suspicion.

I think that that position only makes common sense... The consequences of enforcing the warrant clause requirements here are just... There are just too many cases where any balancing of Fourth Amendment values would suggest that the police ought to be able to enter and they would not be able to enter.

There are cases cited in the briefs where kids have gone onto the fields to hunt or fish or something and come back and report to the police that there is a marijuana patch growing or something that might be a marijuana patch growing.

It just does not make any sense that the policeman cannot follow these kids back onto the yard where they had just been unless he has probable cause and a warrant.

Unidentified Justice: There is no restriction at all.

That is what worries me.

You say that a police officer can go on anybody's land at any time under any circumstances for anything.

You certainly cannot mean that.

Alan I. Horowitz: First of all, there is certainly a practical restriction.

Unidentified Justice: That is what I mean.

Alan I. Horowitz: But I do not think it is a restriction that is constitutionally required.

There is a practical restriction in that the police do not... I do not know how many trillions and trillions of acres of open fields in this country.

The police do not have time to go tramping through them.

In almost all the cases you see cited involving the open fields doctrine the police only go on the fields because they have a reason because someone has suggested to them.

So there is a built in safeguard for that.

I do not think the Fourth Amendment itself extends any protection to these areas.

If the warrant clause applied here and even if the police had gotten some tip, let's say something that does not amount to probable cause.

If they had a tip that there was a body buried in the corner of a field or if there is a kidnap victim being held in a field then they could not go on without getting a warrant and they would not be able to get a warrant because they did not have probable cause.

They would have to sit on their hands and do nothing.

Unidentified Justice: Do you think there was reasonable suspicion in this case?

Alan I. Horowitz: Yes.

Unidentified Justice: Just from an unidentified informant?

Alan I. Horowitz: Well, there was an anonymous tip.

We do not know that much about exactly what there was, but--

Unidentified Justice: Do you think an anonymous tip over the telephone is always reasonable suspicion?

Alan I. Horowitz: --Well, we were told in this case that there was an anonymous tip.

It was fairly specific.

It told them exactly where the field was at the end of the road, and although I do not know exactly what it was the record also says that this was corroborated by other information the officers had that they had heard other reports in the community.

So I guess what they had was several anonymous tips.

I think from what we know about it it seems like reasonable suspicion.

I think the police have to be able to go onto a field in a case like that where they have reasonable suspicion that there is a kidnap victim or a body buried there or something.

Now if they got the same information for--

Unidentified Justice: Do they need more suspicion for that than to go into a barn?

Say they were told there was a kidnap victim in a barn.

What rule would apply?

Alan I. Horowitz: --A barn is an area certainly--

Unidentified Justice: It is unlikely that the kidnap victim is going to be out in the open.

It is more likely to be in a structure.

Alan I. Horowitz: --Possibly.

Unidentified Justice: And you would acknowledge that there the Fourth Amendment applies.

Alan I. Horowitz: I think the... Well, depending on what sort of barn it is, but if it is a really enclosed structure--

Unidentified Justice: It does not seem to me your kidnap victim argument helps you very much.

Alan I. Horowitz: --Well, there is a lot of important evidence that may be found in a field and that the police may get information that will be found in a field.

It just does not make any sense to keep them off.

Now maybe in the case of a barn but certainly in the case of a house they have got the same sort of information--

Unidentified Justice: Well, let's stay with the barn.

Does it make sense to keep them out of a barn without some kind of either probable cause or a warrant or something like that?

What is your view of the law on kidnap victims in barns?

Alan I. Horowitz: --Well, I am inclined to think that there might be a lesser... that a barn is not a house and there might be a lesser standard.

Unidentified Justice: Would it be higher than the open field?

Alan I. Horowitz: I'm sorry?

Unidentified Justice: Would it be higher than the open field?

Alan I. Horowitz: I think so.

In the hypothetical I pose if they have the same information for a house obviously they could not go into a house.

That is established.

You need a warrant and probable cause to go into a house.

I think that illustrates why fields are so different here.

The reason why you need a warrant and probable cause to go into a house is because the Fourth Amendment is concerned about protecting certain privacy interests that individuals have.

Those are the innocent privacy interests, not so much protection against being discovered while they are committing a crime.

It is recognized that there are very serious privacy interests that are always involved in people's homes.

Any intrusion into the home is going to involve an intrusion into those sort of interests.

Unidentified Justice: Mr. Horowitz, do you accept or agree with the position taken by the State of Maine that there has to be a personalized interest?

Your brief does not indicate that you do.

Alan I. Horowitz: I am not sure I completely understand what that means.

Unidentified Justice: Well, his explanation was that there had to have some relationship to people as perhaps indicated by Katz, and if you had a farm or a piece of property 100 miles from your residence that one elaborately fenced and posted and grew marijuana on it that I would think there would be no personalized interest in that beyond protecting one from crime.

As I read your brief you say that if you take adequate precautions wherever the property is located and wholly without regard to any personal interest that the Fourth might apply.

Why do you do that?

Alan I. Horowitz: Well, the ordinary precautions that farm owners take we do not think are sufficient to implicate any Fourth Amendment interest.

Fencing and posting a field I do not think is enough to really exclude people, and it is not enough to create an interest.

If they take very elaborate precautions to keep people off then there might be some.

I am not sure.

I think building a building certainly creates some expectation of privacy and some Fourth Amendment interest.

I do not know if there has to be personalized--

Unidentified Justice: But a building would not be an open field.

Alan I. Horowitz: --Right.

Unidentified Justice: Hester rather cryptic did make any exception to whether some effort had been made to conceal or obstruct the entry of the open field did it?

Alan I. Horowitz: In this case?

Unidentified Justice: In Hester.

Alan I. Horowitz: In Hester.

Unidentified Justice: What about somebody like Thoreau who goes up to Waldon Pond and simply lives in a little are right around there.

He just not only grows things but that is where he sleeps at night.

That is where he eats his meals.

Do you think if he put a fence up around that--

Alan I. Horowitz: No.

Unidentified Justice: --No?

Alan I. Horowitz: No.

I do not think so and to talk about Hester for a minute I think it is not true that Hester does not have to be overruled or at least substantially modified for Oliver to prevail in this case.

The facts in Hester are that the police knew that they were on Hester's property and the record although it is not reflected in the opinion but the record suggests that they climbed over one or two fences to get there so I do not know that that case is very different from this one.

I think the Court's decision there reflects a common sense understanding that these sorts of places are not really in a practical sense restricted from outsiders and if people are going to do things in those fields they are exposing them to some extent to be seen by other people and the police have the same rights that the other people do to see these things.

I think it is important... The Fourth Amendment to some extent is a matter of probabilities, and I think it is important to focus on that.

Even the warrant clause recognizes the possibility that police may make an unjustified intrusion into a private area if police get a warrant on probable cause.

In some not insignificant percentage of those cases their suspicion is going to turn out to be unfounded, and they are going to make an intrusion into the home that invades serious privacy interests and that is not warranted by law enforcement interests.

That is the reason we have the warrant and probable cause requirement to minimize those entries as much as possible.

Now in the case of a field it just does not make sense to have the same sort of requirements because there is very little privacy value in what goes on in a field.

People just do not engage in the sort of private matters that the Fourth Amendment was intended to be directed at when they are out in their fields.

So let's assume the police go onto a field with less suspicion.

Let's say they have only 5 percent reason to think that there is marijuana in the field and in 95 percent of the entries they turn out to be wrong, but in those 95 percent of the entries they do not see anything except cows and corn and trees.

It does not really matter so it just does not make sense to erect this kind of barrier which is going to have a serious impact on law enforcement to protect what is basically a theoretical privacy interest or one that is going to exist in only very unusual cases.

I would also like to talk briefly about looking at this case from the standpoint of the land owner.

I think the facts in this case are not very strong for an expectation of privacy.

The police walked directly onto the field without any barrier.

The idea that the No Trespassing sign somehow creates a significant expectation of privacy I think just does not accord with reality.

The stipulation in this case was that there was a No Trespassing sign when the officers left the highway and entered into the beginning of Mr. Oliver's farm.

This was even before they came to the house.

Chief Justice Warren E. Burger: We will resume there at 1 o'clock with three minutes rebuttal remaining.

Ms. Zeegers, you may resume your argument.

ORAL ARGUMENT OF DONNA L. ZEEGERS, ESQ., ON BEHALF OF RESPONDENT THORNTON

Donna L. Zeegers: Mr. Chief Justice, and may it please the Court:

The core area analysis set forth by the State of Maine in that a core area and the house are the only areas subject to Fourth Amendment right is a theory that was specifically rejected by United States v. Chadwick and upheld by other cases in this Court.

The contention by the State that people would be able to buy land and fence it and grow marijuana any way they want to without the police being able to do anything about it, of course, has no merit because the police can get a search warrant as they have in the past and as they will in the future.

In terms of the body or kidnap victim being on the premises certainly the police would be able to go in without a warrant because those circumstances have been held to be exigent circumstances in state courts as well as in federal courts.

I would like to take a look at the policy reasons which do not justify abandonment of the Fourth Amendment reasonable expectation of privacy analysis in favor of a per se exception.

Unidentified Justice: This Court has never extended that to open fields.

That is what is at issue in this case isn't it?

Donna L. Zeegers: Well, in terms of the per se exception this Court, of course, has never extended that to open fields, but if you look at the reasons for the exception to the warrant requirement that this Court has upheld we have seen that they have been in the context to preserve the safety of police officers, to prevent the loss or destruction of evidence or in the special nature of a government interest such as inventory searches.

We have seen hot pursuit, exigent circumstances, automobile searches, searches incident to an area surrounding a lawful arrest, the search of a border, the consent search, the stop and frisk.

Of course, these are none of the situations presented in this case.

It is important to note that the possibility for police abuse is manifest if we adopted a per se exception because we would need no probable cause.

We would allow indiscriminate searches by police to continually hope to find evidence of a crime instead of the general rule that all warrantless searches are per se unreasonable except for a few carefully guarded exceptions.

The bright line rule proposed by Petitioner in this case will alter that general rule to the extent that all warrantless searches are per se reasonable except those searches of houses and the core area.

This I would have to say is not in keeping with the spirit nor the letter of the Constitution.

It is important to note in this case that there was clearly a subjective expectation of privacy which was reasonable.

Unidentified Justice: Let me ask you one question.

It isn't very often that sensitive constitutional questions can be resolved by use of modern technology, but did I understand you to indicate that if a helicopter or a light plane went over and took one of these very sensitive pictures conclusively showing that it was marijuana and took that to the magistrate that a warrant could properly issue?

Donna L. Zeegers: That would be one factor which might be enough to establish probable cause.

I mean it would depend on certainly the person taking and examining the picture whether they would have the expertise to determine from the air whether that was marijuana--

Unidentified Justice: Assume all that.

The magistrate himself if you want or at least a prosecuting attorney takes the pictures, supervises them and they are unquestioned.

Now that is enough to get a warrant is it?

Donna L. Zeegers: --Certainly the case law has said that and I have not heard any constitutional arguments that have said that that is not the correct analysis.

Unidentified Justice: There is another proposition announced in a good many opinions that the knowledge of one officer involved in an operation is the knowledge of all.

Donna L. Zeegers: Yes.

Unidentified Justice: I take Justice White's hypothetical.

The man in the light airplane or helicopter is an expert on foliage and he says this is marijuana, and they radio that down to the officers who then move in without a warrant.

Is that okay?

Donna L. Zeegers: No.

That would not be okay.

Unidentified Justice: I see.

I just wanted to clarify your position.

Donna L. Zeegers: Right.

Chief Justice Warren E. Burger: Thank you, counsel.

The case is submitted.