UNITED STATES v. DUNN

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Argument of Roy T. Englert

Chief Justice Rehnquist: We will hear arguments first this morning in No. 85-998, United States versus Dunn.

Mr. Englert, you may proceed whenever you're ready.

Mr. Englert, Jr.: Thank you, Mr. Chief Justice, and may it please the Court:

The terms of the Fourth Amendment refer only to persons, houses, papers and effects.

In light of that language, this Court held in 1924, in Hester, and reaffirmed 60 years later in Oliver, that a landowner is not protected by the Fourth Amendment against searches of the open fields on his property.

At the same time, the Court has made clear that the term, houses, in the Fourth Amendment will be construed to include the so-called "curtilage" of the house.

The curtilage, unlike the open fields, receives some Fourth Amendment protection.

The question in this case is whether the curtilage ends and the open fields begin.

The specific property at issue in this case is the grounds surrounding a barn on a ranch in Texas.

I would invite the Court's attention to page 51a in the Appendix to the Supplement to the petition for certiorari, which depicts the relevant part of that ranch property in Texas.

The area searched was the area shown at the top of this chart, where the large barn is.

As the Court can see, the barn is removed by some 60 yards from the house; there's a fence around the house; there's a fence around the barn; and there is an intervening fenced area.

On the night of November 5th, 1980, two law enforcement officers entered the ranch property and approached this barn.

When they arrived at the barn, they did not enter it.

Instead, they stood outside, and using their flashlights, looked through the open side of this pole barn, looking through a non-opaque wire netting.

Unknown Speaker: Well, what is a pole barn, Mr. Englert?

Mr. Englert, Jr.: Your Honor, it's a barn in which there are poles supporting the overhang.

It has an open side, as opposed to being a structure with four walls.

Unknown Speaker: Are three sides closed and one open?

Or are all four sides open?

Mr. Englert, Jr.: One side is open, Your Honor.

In plain view, within this barn, the officers saw an amphetamine laboratory in operation.

Without entering any of the buildings on the ranch property, they left and secured a warrant for the seizure of this illegal drug laboratory.

In 1982 the Fifth Circuit held that the officers had violated the Fourth Amendment by approaching this barn, because it was within the protected curtilage of the Dunn ranch house.

The government petition for certiorari to review that decision.

Certiorari was granted.

The decision was vacated and remanded for further consideration in light of Oliver.

On remand, in 1985, the Court of Appeals found it clear in the Oliver case that this barn was not within the protected curtilage of the ranch house.

It held, nonetheless, that the officers had violated the Fourth Amendment by peering into it.

The government again petitioned for certiorari, and while our petition was pending, several judges of the Court of Appeals entered dissents from the denial of rehearing en banc.

The panel then vacated its 1985 opinion and reinstated its 1982 opinion, holding that the barn was within the protected curtilage.

The question before this Court, therefore, is whether the barn is within the curtilage of the ranch house.

The Court of Appeals has committed manifest error by holding that this barn was within the curtilage.

This Court has now stated several times that the curtilage is an area of intimate family activities immediately adjacent to the home.

A barn is not such an area.

It is the antithesis of such an area.

The typical barn houses fertilizer--

Unknown Speaker: Any barn?

Any barn?

Mr. Englert, Jr.: --No, Your Honor, the typical barn is used for the opposite purposes.

Certainly, a barn could be converted into an area of family activity.

Unknown Speaker: What about a stable?

Is that an area of family activity?

Mr. Englert, Jr.: I should think not, Your Honor.

Unknown Speaker: Never?

Mr. Englert, Jr.: Unless it were converted, I can't imagine such a place, no.

Unknown Speaker: Blackstone disagrees with you, and I think he knew more about curtilage than you do, probably.

Mr. Englert, Jr.: Your Honor, a property immediately adjacent to the home may be protected as curtilage without the necessity for its own use for intimate family activity, because its immediate adjacency to the home makes it part of the area that is protected.

Of course, the concept of curtilage came out of the English common law of burglary, in which it was a capital offense to enter the curtilage at nighttime with felonious intent.

It was not a capital offense to do the same thing outside the curtilage.

Unknown Speaker: I agree with all of that.

But that makes the test to be distance and not, as you're asserting it is, whether intimate family activities occur.

Because it was acknowledged that a close-to-the-home stable was part of the curtilage.

And there's no more intimate family activities performed in a stable in Blackstone's time than there are today.

Mr. Englert, Jr.: That's true, Your Honor.

However, in looking at buildings that are not immediately adjacent to the home, the Courts of Appeals have looked to the use given to a building or to an area, and this Court has stated in Oliver, in Dow, in Ciraolo, that the purpose of curtilage is to protect the area of intimate family activities.

So that is at least part of the question, if the Court is going to apply a balancing approach.

As Justice Scalia mentioned, of course, distance is a major factor in determining what is and is not curtilage.

This barn was some 60 yards away from the home, hardly in the shadow of the home, hardly what most people would refer to as immediately adjacent to the home.

It was also separated from the home by not one but several fences.

According to the tests of Care v. United States, the tests that have been applied by the Court of Appeals, there is simply nothing to recommend this barn as part of the curtilage.

Unknown Speaker: Mr. Englert, even if we were to conclude that this barn was not in the curtilage, does that end the inquiry?

Or do we still have to inquire whether there was an expectation of privacy that should be recognized in the structure of the barn?

Mr. Englert, Jr.: Your Honor, in a case in which the officers do not enter the building, but merely look into it from the open fields, we think a holding that it was not within the curtilage would end the inquiry.

There may be special rules--

Unknown Speaker: Can there be any area around a building in which there is an expectation of privacy which is also protected?

Mr. Englert, Jr.: --Your Honor, that is precisely what the curtilage doctrine is designed to do.

Unknown Speaker: Well, for a commercial structure, for instance, a factory that is constructed out in a field, and it has security fences all around it.

Is there any area within the fence that is an area in which there would be a reasonable expectation of privacy, perhaps?

Mr. Englert, Jr.: Well, Your Honor, there are suggestions in the Dow case, that with the extraordinary security measures that were taken to protect the ground around the buildings in that case, that there would be a legitimate expectation of privacy against ground level inspection.

Unknown Speaker: Is that a kind of curtilage around a commercial property, or what is it?

Mr. Englert, Jr.: Your Honor, I don't think it would be appropriate to call that a curtilage, because that is not what the curtilage concept is about.

The curtilage concept is about home life.

Unknown Speaker: Well, do you acknowledge that there can be an area around a commercial structure which is protected by the Fourth Amendment, by fences?

Mr. Englert, Jr.: Your Honor, I think... if sufficient measures are taken to protect it, I think the Dow case indicates that there is such an area.

Unknown Speaker: Well, there was a fence around this barn, was there?

Mr. Englert, Jr.: Yes, Your Honor, there was a fence that could be entered around this barn, but--

Unknown Speaker: What in the world was the fence there for?

Just for ornament?

Mr. Englert, Jr.: --Your Honor, a fence in these circumstances would often be for the purpose of controlling animal movements.

Based on--

Unknown Speaker: Mr. Englert, before you go any further, what is this we have before us?

Is it a question of fact?

I mean, whether it's a distant barn, as Blackstone would say, or not a distant barn; whether it's within the curtilage or not within the curtilage; isn't that a question of fact, and wouldn't we just have to go along with the lower courts, unless what they said was clearly erroneous?

Mr. Englert, Jr.: --Your Honor, if the Court were to hold that it were a question of fact, it should go along with the District Court's ruling, which did not suppress this evidence, and held that there was not an invasion of the curtilage.

Unknown Speaker: Well, what do you think it is?

A question of fact or not?

Mr. Englert, Jr.: Your Honor, I think it could properly be termed a mixed question of fact involved, because the question of what is curtilage, of course, is a question of law.

It's a question of law on which there has been some confusion in the lower courts--

The question of whether a particular property meets that definition would appropriately be treated as a question of fact.

But in these circumstances--

Unknown Speaker: The question whether a particular structure is a house or not a house, would you consider that to be a question of law, when it's contested whether there were people living in that place, and therefore, whether it was entitled to Fourth Amendment protection, would you consider that a question of... mixed question of law and fact?

Mr. Englert, Jr.: --I think it very well might be, Your Honor.

Unknown Speaker: Really?

Mr. Englert, Jr.: Yes, it depends on what legal standards are to be applied to determine whether something is a house, as well as depending on whether those legal standards were met.

We think it would be appropriate for the Court in this case to carry on what I may call the unfinished business of Oliver, and to begin to set bright line rules for what is and what is not curtilage.

Both the majority and the dissenting opinion in Oliver suggested that there was a need for bright line rules in this area.

Unknown Speaker: What is... what makes a curtilage?

Somebody living there?

Mr. Englert, Jr.: Your Honor, if somebody--

Unknown Speaker: I mean, right in this, what is the difference between the curtilage and the barn, legally, for this case?

What is the difference?

They both have fences around them.

Mr. Englert, Jr.: --Yes, Your Honor, but one is immediately adjacent to the home; one is an extension--

Unknown Speaker: Well, what is the difference between a home and a barn?

Mr. Englert, Jr.: --Your Honor, people live in homes and carry on family activity in homes.

Unknown Speaker: Well, doesn't it apply when they're not there?

Mr. Englert, Jr.: Yes, it certainly does, Your Honor.

Unknown Speaker: When it's absolutely vacant?

Mr. Englert, Jr.: Absolutely vacant in the sense of uninhabited, I'm not sure it does.

Unknown Speaker: Wouldn't that still be a curtilage?

Mr. Englert, Jr.: There's still a curtilage if the--

Unknown Speaker: If it was up for sale, and it had been sitting there for three years vacant, it still would be a curtilage.

Yet if it was a barn where somebody was sleeping, it wouldn't be.

I have trouble with that person in there.

Mr. Englert, Jr.: --Your Honor, if it were a barn where somebody was sleeping, it would be a different case.

In fact, there was questioning in the record in this case about whether Mr. Dunn slept in the barn; and the answer was, no, of course he slept in the house.

This is not a case of a barn that has been converted to use for the normal activities of day-to-day living, family life.

Unknown Speaker: Well, would there be a difference of what's a curtilage in Maine and what is a curtilage in Texas?

Mr. Englert, Jr.: There could be, Your Honor.

Unknown Speaker: I'm thinking of the King Ranch.

I mean, that's a pretty big curtilage.

Mr. Englert, Jr.: I'm not familiar with the King Ranch, Your Honor.

But--

Unknown Speaker: xxx from Texas?

Mr. Englert, Jr.: --No.

There may be a difference.

And I think it's not so much a difference from state to state, as a difference between urban property and rural property.

The curtilage around a suburban home in Springfield, Virginia, where I grew up, and a curtilage around a ranch in Texas may differ.

Unknown Speaker: Well, wouldn't your idea of a curtilage be different from me in Harlem, New York?

Mr. Englert, Jr.: Yes, Your Honor.

Unknown Speaker: Well, what I'm driving at, this is a local court that has twice said just what they thought a curtilage was.

And you want us to say they're wrong.

Mr. Englert, Jr.: Well, Your Honor, this Court has said three times what it thought a curtilage was, once saying this Court's decision made it clear that this wasn't a curtilage, and then reversing course, and saying without explanation, that it was.

Furthermore, the District Court, which was more local than the Court of Appeals, said this wasn't a curtilage.

So I would submit that that's really not dispositive of the question.

In addition, the fence rule that we have proposed in our brief gives some recognition to the varying nature of a curtilage on different kinds of property.

In an area where the homeowner carries on family life in a wider part of his land, he may be expected to erect a larger fence to set off a larger area around his home as the special area.

This fence rule that we propose, of course, comes straight out of the common law.

Justice Scalia has referred to Blackstone's commentaries, which distinguish a barn within a common enclosure with the house from a distant barn or stable.

The common enclosure was critical at the common law, and indeed, the English courts probably went too far even for our purposes in holding that the absence of an enclosure meant the absence of a curtilage; holding that a building as few as three or four feet away would not be within the curtilage if it was not within a common enclosure.

There must be different rules for unfenced property, because our fence rule doesn't dispose of it.

But the fence rule, which is the rule at common law, we think is the kind of bright line that could appropriately, consistently with Fourth Amendment values, and consistent with the common law, be applied.

Unknown Speaker: Well, Mr. Englert, I'm not really sure that your proposed bright line fence rule is one that would serve necessarily our purposes in rural areas, where it's typical, isn't it, that you might have a little fence around your immediate yard to keep the animals out of the flowers and the grass, but still have an outhouse or outbuilding that would be considered a part of the curtilage.

At least in the area where I grew up, that was rather typical.

And I'm not sure that your fence rule is a wise one.

Mr. Englert, Jr.: Your Honor, I'm not sure why that outbuilding should be considered a part of the curtilage.

If it's the area over which the animals are allowed to graze, I wonder if that's an area that is really protected against the kind of trespass, but legal trespass--

Unknown Speaker: Well, it is to the extent that the outbuildings are, for example, outhouses used for personal purposes or for cooking; the very things you suggest normally are in the curtilage.

And there are rural areas where that's still the case.

So I'm not sure your fence rule would necessarily serve us well in all cases.

Mr. Englert, Jr.: --Well, Your Honor, if the outbuilding is, in fact, used as an adjunct to the domestic economy, we would not urge the fence rule; that is not this case.

This case involves a barn far away from the house; not used for domestic purposes--

Unknown Speaker: Well, you're proposing a rule that covers much more than this case.

Justice O'Connor was asking you about the suggestion in your brief that this case ought to be governed by a first-fence-from-the-house rule.

Mr. Englert, Jr.: --Yes, Your Honor.

Unknown Speaker: And that does cover more than this case.

And what Justice O'Connor is asking is, you know, what if you have some outbuildings, including an outhouse, that might well be outside the first fence around the house?

You wouldn't consider that part of the curtilage of the house?

Mr. Englert, Jr.: In the--

Unknown Speaker: Just because animals can graze there?

Animals can graze in a stable.

They graze in stables all the time.

And yet a stable could be in the curtilage.

Mr. Englert, Jr.: --In the exceptional case, where an outbuilding is truly used as an adjunct to the domestic economy, it may be deemed within the curtilage.

It may, if it's the equivalent of a house, it may have its own curtilage.

But for at least a starting point, at least a strong starting point, to resolve cases other than that exceptional case of an outbuilding used for domestic purposes, we think the fence will serve very well, and it's quite consistent with common law.

Unknown Speaker: How far was the barn from the main house here?

Mr. Englert, Jr.: Sixty yards, Your Honor.

Unknown Speaker: May I ask, do you think your fence rule should apply in precisely the same way in Texas, Iowa, and say, Potomac, Maryland, where you have big homes?

Would it be the same rule in a big suburb, suburban estate and a--

Mr. Englert, Jr.: Yes, Your Honor.

Unknown Speaker: --Same rule?

Mr. Englert, Jr.: And we think that's one of the virtues of the rule, is that it enables the property owner to define that area that will be treated as a whole with the house, and not just--

Unknown Speaker: Does your rule impose a maximum distance that the fence can be from the house?

Mr. Englert, Jr.: --Your Honor, we have not attempted to set a specific maximum distance.

There is, of course, a possibility of a property with a large perimeter fence around a very large area, which does not in any sense demarcate the yard of the house, or what we think should be called curtilage.

Unknown Speaker: But I gather you take it 60 yards would be too much?

Mr. Englert, Jr.: Sixty yards we think would be too much, yes.

Unknown Speaker: And do you think there's any question about our power to draw such a line?

Where do we get the power to define it with that precision?

Mr. Englert, Jr.: Your Honor, I think it's very difficult to define with that precision.

One of the lower courts in the Second Circuit--

Unknown Speaker: But if you don't have it precisely defined, what good does it do us?

Mr. Englert, Jr.: --Well, that is why we propose a precise fence rule, and not a precise distance rule--

Unknown Speaker: I see.

Mr. Englert, Jr.: --which will resolve the many cases like this one where a rural property is surrounded by a... the house on a rural property is surrounded--

Unknown Speaker: But you're satisfied this Court has that kind of rule-making authority, I guess.

Mr. Englert, Jr.: --I'm satisfied that this Court has the power to give guidance to the lower courts in that fashion, yes, Your Honor.

Especially because, as I've mentioned several times, the fence rule was the common law rule.

And if the curtilage concept--

Unknown Speaker: Yes, but you know... do you think the people in England had the same kinds of property to define that they do in Texas, for example?

Mr. Englert, Jr.: --No, Your Honor, but the purpose of a fence in England was much the same as the purpose of a fence in Texas in 1980.

To define one area of the property--

Unknown Speaker: And to control the movement of animals, I suppose, too.

Mr. Englert, Jr.: --That, also, Your Honor.

But it least defines some part of the property.

The three-factor test of Care v. United States doesn't set any rules, but it also gives no guidance.

It leaves the courts free to say, first, this is the curtilage, then it isn't the curtilage, then it is the curtilage.

Unknown Speaker: Of course, your bright line test leaves us afloat on the nearest fence, whatever that is.

Suppose it's just a little fence around a small garden.

The property owner liked to garden, and he wanted to keep the dogs off the roses; put a little fence around.

Would that restrict his curtilage to that first fence?

Mr. Englert, Jr.: If it were a house that... I'm sorry, Your Honor, if it were a fence that also included the house, I think it would define the curtilage.

If it were just a fence around the garden, that would be serving the purpose of defining the garden, not defining the area closely associated with the home.

Unknown Speaker: Where were the dogs in this case?

Certainly there must have been dogs on this farm, but I don't see anything in the record.

Mr. Englert, Jr.: Well, Your Honor, perhaps because Mr. and Mrs. Dunn had not moved to this farm yet, they hadn't brought the dogs yet; I don't know.

Unknown Speaker: How was this barn used?

I mean, wouldn't that be important to the inquiry of whether it was part of the curtilage?

Mr. Englert, Jr.: It certainly could be, Your Honor, if it had been converted to family use.

We would readily state that it as curtilage, that it was protected.

But what the record in this case discloses about the use of this barn is that Mrs. Dunn testified that it was used for nothing; and the officers could see with the aid of their naked eyesight and flashlights that it was used for a drug lab.

That's all this barn was used for.

Unknown Speaker: What if it was used to make alcoholic beverages for home consumption?

Would that make it part of the curtilage?

Mr. Englert, Jr.: I think not, Your Honor.

I don't think that's the kind of intimate family purpose that this Court was talking about--

Unknown Speaker: Suppose there's no fence around the house, and you sneak up and shine your... officer sneaks up and shines his flashlight through the window, sees something--

Mr. Englert, Jr.: --Justice White, that's precisely what the curtilage doctrine was designed to protect against.

It was designed to set an area around the home that officers could not invade--

Unknown Speaker: --But you seem to think... you seem to think that the officers had no business going inside the barn without a warrant; is that right?

Mr. Englert, Jr.: --Your Honor, if that case were before the Court--

Unknown Speaker: Well, is that right or not?

Mr. Englert, Jr.: --we would defend the officers' action.

Unknown Speaker: So that... so they might just as well, instead of shining their flashlight, just enter the barn.

Mr. Englert, Jr.: Your Honor, the fact that we would defend that action if we had to, doesn't mean that this isn't a much easier case.

Unknown Speaker: Well, let's assume that you needed a warrant to go into the barn.

Mr. Englert, Jr.: All right.

Unknown Speaker: Why would you be permitted to shine your flashlight through the window--

Mr. Englert, Jr.: Because--

Unknown Speaker: --to see something that you couldn't enter and see?

Mr. Englert, Jr.: --Because it could be seen from the outside.

Unknown Speaker: But only with a flashlight.

Mr. Englert, Jr.: Well, Your Honor, this Court held in the Lee case, and reiterated in Texas v. Brown, that the aid of a flashlight doesn't convert something into a search if it isn't already a search.

Unknown Speaker: Unless you're shining it into a house?

Mr. Englert, Jr.: Neither of those cases involved shining in a house, nor does this case involve shining in a house.

It's not the use of the flashlight that would make peering through a window--

Unknown Speaker: Well, what about a searchlight... what about a searchlight from across the street, shining into a house?

Mr. Englert, Jr.: --Into the house itself?

Unknown Speaker: Yes.

Mr. Englert, Jr.: That would raise very different constitutional concerns from this case.

Unknown Speaker: Why would it?

Mr. Englert, Jr.: Because this Court has said so many times that the whole--

Unknown Speaker: You can't look in a house with the aid of a light from outside the curtilage, but you can look in a barn that you need a warrant to get into?

Mr. Englert, Jr.: --Yes, Your Honor, because it's a barn and not a house.

Unknown Speaker: That's the government's submission.

Mr. Englert, Jr.: Yes, Your Honor.

If the Court has no further questions, I'd like to reserve the remainder of my time for rebuttal.

Argument of Louis Dugas, Jr.

Chief Justice Rehnquist: Thank you, Mr. Englert.

We'll hear now from you, Mr. Dugas.

Mr. Dugas: Mr. Chief, and may it please the court, Justice Katz provides a zone of privacy which grants inherent immunity to those properly within that zone of privacy against unreasonable searches and intrusions by government agents.

The vitality of these Fourth Amendment rights is mandated to protect businessmen as well as other persons from violation of their reasonable expectations of privacy.

Historically, society has accepted certain spaces as private for so long that a presumption of privacy attaches.

This is true of Dunn's farm.

And further, Dunn took a number of steps to preserve his privacy.

The barn was located in a clearing surrounded by woods on a 198-acre tract.

This 198 acres was circled by a perimeter fence.

The ranch house and buildings were at the end of a private drive approximately one-half mile from a public road.

Unknown Speaker: None of that's relevant.

Mr. Dugas: Sir?

Unknown Speaker: None of that's relevant.

If the... if the dwelling house had been nowhere near the barns, and all of those facts still existed, it wouldn't make any difference if there was a perimeter fence, would it?

Wouldn't the open fields doctrine still apply?

Mr. Dugas: No, sir.

Unknown Speaker: It wouldn't?

Mr. Dugas: If you didn't have the house and the barn located in that area--

Unknown Speaker: Let's assume the barn was way over on the other side of the ranch.

Let's assume it's the King Ranch, as Justice Marshall said, and there's a barn at one... you know, one extreme of it, and the dwelling house is on the other; and the whole ranch is fenced.

As I understand our cases, the barn would be considered part of the open fields, or in any fields on the King Ranch.

Now, perhaps law officers might be guilty of trespass if the state law did not allow law officers to go on property like that.

But the Fourth Amendment wouldn't apply on the whole ranch, would it?

You're not saying that whenever there's a fence around--

Mr. Dugas: --No, I'm not, Your Honor.

Unknown Speaker: --Then what relevance does it have that there was a fence all around this--

Mr. Dugas: Well, this will show that Mr. Dunn took subjective steps to protect his privacy against intrusion by anyone.

Unknown Speaker: --You could say the same thing about the King Ranch.

It seems to me it's irrelevant.

Really the only question is whether the barn is part of the house.

Mr. Dugas: Well, the barn is not part of the house as such, but the barn serves a function with the house.

This was a barn for cattle.

It had a place to feed the cattle.

And certainly on a 198 acre farm in Texas, which is small by most Texas standards, this is part of the community, part of the house, the whole function.

Unknown Speaker: Well, that I understand.

I think that's the issue.

Mr. Dugas: Yes, sir.

And that's what this... the officers didn't know what was in the barn before they crossed the fence leading into the barn.

But they did.

And they violated the curtilage of the barn.

I think the barn has a curtilage of its own.

Unknown Speaker: You think there's a separate curtilage around the barn?

Mr. Dugas: Yes, ma'am.

Unknown Speaker: And have any of our cases recognized that?

Mr. Dugas: In Dow Chemical, there's a note about the Swart... United States v. Swart, which is a Seventh Court of Appeals opinion, and it refers to a business curtilage.

Dow said it did not address that issue in that case.

I think in this case, we have that situation.

Unknown Speaker: Why would there be a business curtilage?

Mr. Dugas: A business curtilage?

Well, if we're going to protect businesses... and of course the protection of businesses didn't come into effect until about 1967 in the See case.

The businessman has as much right to privacy as an individual who has a home.

Unknown Speaker: But does that really make sense, or is that accurate to say, in the light of our decisions, that a businessman such as your client, manufacturing amphetamines in the barn, has as much right as someone who wants to use their home, perhaps to manufacture amphetamines?

Mr. Dugas: Yes, sir, we're looking at this after the fact.

The officers didn't know what it was being used for.

Unknown Speaker: But it seems to me what you say neglects all of the emphasis in our cases about the peculiar sanctity of the home.

Mr. Dugas: There is a sanctity of the home.

But I think that business ventures, business people, and I think in Dow it was stated, that they had a right to privacy within the buildings--

Unknown Speaker: Yes, the cases certainly establish that.

But what you're asking the Court to say is that there's a curtilage doctrine that applies to a business premise the same way it applies to the home premises.

And I'm suggesting to you that I don't think that argument is really made out, at least on what you've said so far.

Mr. Dugas: --Well, sir, a business has a right to protect... they have a right to put a fence up, as counsel for the government has said, to protect their grounds, to provide security.

And perhaps this is a new approach, but a business should be entitled to a curtilage as well as a home.

Admittedly in Blackstone's time, this was not the case.

But we're not living in Blackstone's time.

And I think the concept of curtilage must move forward.

Unknown Speaker: Well, the question here is whether you could sneak up to the barn and look through the window.

Isn't that the issue?

Mr. Dugas: Yes.

Unknown Speaker: And you couldn't do that with a house, I take it?

Mr. Dugas: That's correct.

Unknown Speaker: And you say the same rule should apply?

Mr. Dugas: Yes, sir.

Unknown Speaker: But there are no cases like this?

You say you're proposing something rather new?

Mr. Dugas: I'm not proposing something new, because the Seventh Court of Appeals has already said, in the Swart case, that there was something like... there was a business curtilage.

Unknown Speaker: But just the fact that it's a trespass doesn't make the difference, does it?

Mr. Dugas: No, sir, it's whether the officer has a right to be there to look in the window, whether it's the home or the barn.

Unknown Speaker: Well, technically, he's a trespasser.

But that hasn't prevailed against the open fields doctrine, has it?

Mr. Dugas: No, sir, it has not as far as Oliver goes.

But this is not an open fields.

What if in Oliver you had had a house in the middle of that field where these officers went in to search?

That house would certainly be entitled to a curtilage.

But as the Court said in Dow, Dow plainly has a reasonable, legitimate and objective expectation of privacy within the interior of its covered buildings; and it's equally clear that expectation is one society is prepared to observe.

And we submit that this is an area--

Unknown Speaker: Well, that's sort of a conclusion.

The last part of it is what we're talking about, I guess.

Mr. Dugas: --Yes, sir.

Unknown Speaker: That it's one society is prepared to approve.

And I guess that's what you're asking us to say, that society approves it?

Mr. Dugas: Yes, sir.

Yes, sir.

Unknown Speaker: But how do you know whether society approves it or not?

I mean, you know, the person who's in the middle of an open field and conducting activities in a forest, he expects that he is unobserved and has privacy; he's on his own land.

And we've said that we don't approve that expectation of privacy.

Now, why should we approve this one?

Do you really think barns are somehow... I can understand how houses, and the area immediately around the house.

We talk about the sanctity of the home.

We don't talk about the sanctity of the barn why should we adopt a special rule for barns as opposed to woods?

Mr. Dugas: Because it's an enclosed structure, Your Honor.

You couldn't see it from the air.

You couldn't see it from the ground unless you walked right up within its... pardon the expression, but curtilage.

Unknown Speaker: You could say the same about--

Mr. Dugas: And you broke the curtilage and went in and looked.

Unknown Speaker: --You could say the same about the woods on an open... on an open tract, privately owned tract.

Mr. Dugas: But the woods, you could look down and see from the air.

Unknown Speaker: Not in the summer.

So it's the structure?

Mr. Dugas: Sir?

Unknown Speaker: It's the structure that makes the difference?

Mr. Dugas: Yes, sir.

I submit that the structure makes the difference.

That--

Unknown Speaker: Well, wasn't this barn open on one side?

Mr. Dugas: --Yes, ma'am.

It was for feeding cattle.

It had a gate across where you could go in; the cattle could feed, and go back into the fenced area.

Unknown Speaker: So the policeman could have looked into the barn from a greater distance.

Your objection is that they went inside the fence around the barn.

Had they stood outside the fence and used a more powerful flashlight and if necessary binoculars, that would have been all right?

Mr. Dugas: I wouldn't say it would be all right, but it probably would pass.

Unknown Speaker: But crossing the fence, they violate the sanctity of the barn somehow?

Mr. Dugas: Yes, sir.

Unknown Speaker: Counsel, you cited a Seventh Circuit case, but I don't think you cited it in your brief, and I don't have the name of it.

Could you--

Mr. Dugas: It's United States v. Swart.

Unknown Speaker: --Warth?

Is that a recent case?

Mr. Dugas: It's 697, I believe.

It's--

Unknown Speaker: And was that a barn case?

Mr. Dugas: --No, sir, it was an automobile business where officers went after the business had closed and stood near the cars to determine if they had what's called a chop shop.

And the Seventh Circuit held that there was a question of whether or not there was a business curtilage.

And that case if 679 Fed. 2nd 698, it's a 1982 case.

Unknown Speaker: And so that goes to the original question presented by the government rather than the revised question, not whether it's in the curtilage, but whether you can look in the hole in the barn?

Mr. Dugas: Yes, sir.

But historically fences have served as privacy, regardless of Oliver.

The fences have served to give notice to the world that you can't come in.

And this is true, even in the 1830s, for travellers who would walk... there's an art show on at the Corcoran Museum of Art called "Views and Visions".

And it has photographs... or paintings of early Americana.

And one of the statesmen said, it's considered rather ill bred to go into a man's orchard near to his own house.

You may look long enough around you before you espy a board warning you that man-traps and spring guns are set, or threatening you with a prosecution for trespassing.

Now, the public has accepted fences as this measure of privacy.

Mr. Dunn had such a fence around his entire ranch.

Unknown Speaker: And yet you agree that that would not preclude observation of various places on the ranch within that fence, under Oliver?

Mr. Dugas: No, sir, they even flew... in Dunn, they flew over and took pictures of the ranch that afternoon; they took aerial photographs.

Unknown Speaker: So what is the materiality of this exterior fence?

Mr. Dugas: Well, it tells me as an individual I can't go onto that man's land without his permission.

His gate is locked.

It should say the same thing to the law enforcement officers.

Unknown Speaker: But Oliver said it doesn't say the same thing to the law enforcement people.

Mr. Dugas: Well, that's why we're saying that the Court should consider what the state courts have held, that this is a matter of privacy.

The courts in Texas... the legislature in Texas has enacted a privacy statute for trespassing.

It specifically said to prevent intrusion on the property.

Unknown Speaker: Well, but that isn't what... the Fifth Circuit didn't rely on that in its judgment.

Mr. Dugas: No, it didn't.

Unknown Speaker: Are you asking us to change Oliver?

Mr. Dugas: If I could, yes, sir.

Unknown Speaker: Well, you're always free to ask.

Mr. Dugas: Yes, I am.

I am.

Yes, sir.

I am doing that.

Unknown Speaker: But I take it you don't think that's critical to your case, to have to overrule Oliver?

Mr. Dugas: No, sir, I do not.

I do not.

Interestingly enough, the government not only looked into the barn, but they looked in the carport, which was adjacent to the house.

And if you look at the plats, you can see that even under the government's interpretation of curtilage, that that would be a violation of the curtilage.

It says: We attempted to see if there were any vehicles in the garage, but all the windows and the doors, everything, were blocked up.

And they say: We didn't need to go into the house.

I don't know what that meant, but I would assume that they shined their flashlights in the house, too, during this entire evening of searching this barn.

And this barn was searched not once but three times without a search warrant.

Apparently, it became a daily excursion for the officers to go onto this man's land and go back and bring with them certain people.

Now, if Mr. Dunn had been home, there may have been a confrontation with them crossing the fence at night, and there could have been problems.

And that's why I've asked you, as part of this, to consider the Texas trespass laws, which would allow a citizen of Texas to use force on someone trespassing on his property.

And then we would really have problems.

Because the people in Texas would not hesitate to shoot anyone at night, including the sheriff, whose trespassing on their property.

Unknown Speaker: Well, that's a risk the sheriff takes, I guess.

Mr. Dugas: Yes, sir, it is.

Unknown Speaker: Do you know--

--They better read Oliver, I think.

Do you know, if this case had been a Texas State prosecution rather than a Federal prosecution, do you know whether the Texas courts would have admitted the evidence?

Mr. Dugas: There's one case dealing with the similarity.

That was a chicken coop that was 125 feet away, which translates into 40 yards.

And the court held that the chicken coop was within the curtilage.

Unknown Speaker: xxx fields?

Mr. Dugas: Yes, sir, in the Kantu case.

Unknown Speaker: Do you have that citation?

Mr. Dugas: Yes, sir, I have.

It's 557 Southwestern 2nd 107.

There are some other cases that hold between 100 and 400 yards from the residence is not curtilage.

There are other Texas cases, older Texas cases, that hold this.

So you have an area somewhere between 40 yards and 100 yards that the Texas courts would recognize as curtilage.

Unknown Speaker: Are these cases burglary cases or are they suppression of evidence cases?

Mr. Dugas: The Kantu case is a marijuana suppression case, Your Honor.

The--

Unknown Speaker: The earlier ones you referred to, are they burglary... they're probably... if they're that old, they're probably burglary cases.

Mr. Dugas: --Could be moonshine, Your Honor.

Let's see, the Wolf case, which is 1928, was a moonshine case.

And in the Wolf case, a Texas case, they say: An unreasonable search is one which entrenches upon the peaceful enjoyment of the house in which he dwells or in which he works and does business, and those things connected therewith, such as gardens, outhouses, and appurtenances necessary for the domestic comfort of the dwelling house, or that in which the business is conducted.

And so therefore I would say that the barn would be considered an appurtenance under that definition.

Unknown Speaker: xxx depend on how the barn's being used?

I mean, suppose I have this same property, and 100 yards away, let's suppose I paint the barn red, and I call it the little red barn, and I run a restaurant there.

Or I have auctions in the barn.

In other words, I'm using it for a public business, and the public comes in and out of the barn all the time.

Mr. Dugas: Yes, sir.

Unknown Speaker: But I live 100 yards away in my ranch house.

Now, you wouldn't consider that barn, though it's still a barn, you wouldn't consider that to be part of the curtilage, would you?

Mr. Dugas: Not while it's open to the public, Your Honor.

Unknown Speaker: No, I mean, at night.

The public's gone.

Public's gone home.

Mr. Dugas: I think the barn would have its own curtilage in that event.

Unknown Speaker: Well, never mind that.

Is it part of the curtilage of the house?

Mr. Dugas: Sir?

Unknown Speaker: Maybe it has its own, but is it part of the curtilage of the house?

Mr. Dugas: Yes, sir.

Well, you've invited the public, and certainly you would have a lesser expectation of privacy, and I don't know that it really would be within the curtilage of the house in that situation.

However, in this definition in the Wolf--

Unknown Speaker: So it really does depend a lot on the use of the barn.

It's very hard to say whether it is or it isn't until you know how it's being used.

Now, if that's crucial, we now know how this was being used.

It was being used to manufacture unlawful substances, right?

Mr. Dugas: --Yes, sir.

But I didn't know that you rested on the results of the search the goodness or unreasonableness of the search.

Unknown Speaker: Well, let's assume it was being used to manufacture lawful substances.

Would you consider that part of the house?

Mr. Dugas: I'm sorry, I did not hear the last part.

Unknown Speaker: Would you still consider it part of the curtilage of the house?

You have a barn, and you start a manufacturing business in the barn, lawful; lawful substances.

You'd consider that part of the curtilage of the house, still?

Mr. Dugas: Yes, sir.

You could have the barn transformed as a room to send your children to, as a playroom.

And one of the reasons for barns being 60 yards away from the house is an obvious one.

Barns have odors.

They have varmints.

You don't want those right next door to the house where the odors will permeate the housewife's cooking.

Nor do you want the varmints trespassing through the house.

So that's one of the basic reasons that barns are 60 yards away, or more.

Now, the new immigration reform act has a provision in it that says INS officers are restricted to searching farms and agricultural lands within 25 miles of the border.

So Congress is speaking to this question in this situation.

They're saying that you... if it's beyond 25 miles, you can't go on and question anyone about whether he's an illegal alien or not.

Unknown Speaker: The Federal Government is suggesting a similar bright line rule here, the first fence rule.

Mr. Dugas: You're referring to the 25 miles and the fence, Your Honor?

Unknown Speaker: Yes.

Mr. Dugas: I suppose they are, but--

Unknown Speaker: It seems to me that your 25-mile example cuts the other way, because Congress presumably... must have assumed that you can go and make such searches within the 25-mile area without violating the Fourth Amendment?

Mr. Dugas: --Yes, sir, I would say that.

They said they were restricted to 25 miles of the border.

So I would assume that they could go on lands in that area; but not 26 miles from it.

If there are no further questions, I'll take my seat.

Rebuttal of Roy T. Englert

Chief Justice Rehnquist: Thank you, Mr. Englert... pardon, Mr. Dugas.

Mr. Englert, you have six minutes remaining.

Mr. Englert, Jr.: No rebuttal, Your Honor.

Chief Justice Rehnquist: Very well, the case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 85-998, United States against Dunn will be announced by Justice White.

Argument of Justice White

Mr. White: As the opinion on file with the Clerk indicates the Court reverses the judgment of the Court of Appeals for the Fifth Circuit in this case.

Justice Scalia has filed a concurring statement disassociating himself from a portion of the opinion; Justice Brennan has filed a dissenting opinion in which Justice Marshall has joined.