Basics of Law Series

 

Katz and Curtilage:

 

An Analysis of Fourth Amendment Warrant Protections

In light of Zoning and Code Enforcement

 

            When a government official gets sued for a conducting a warrantless search of the private property surrounding a home, there is one argument that invariably comes up. Since this sort of situation is becoming more and more common as governmental agencies of various sorts across the country are trying to crack down on folks who own things the government doesn’t think they should, or who don’t mow their yard on a schedule that suits some local tyrant, it is fitting that we should discuss here the issue of curtilage, and the legal doctrines that surround it.

            Given their option, the cases cited by governmental attorneys invariably include Katz v. United States (US Supreme Court, 1967)  and California v. Ciraolo ( US Supreme Court, 1986) the propositions so often quoted from Katz[1] is that the Fourth Amendment protects people, not places. Those items which a person knowing subjects to the publics view – even if they are inside his home or office – are not the subject of Fourth Amendment protections.  Government attorneys invariably cite this as meaning that if a governmental official could possibly have seen something without having violated the Fourth Amendment, then the Fourth Amendment did not apply at all to the scenario.   This is an absolute mischaracterization of Fourth Amendment law.  In fact, the very next line of the Katz case states that what a man seeks to preserve as private may be the subject of the protections of the Fourth Amendment.  The Ciaolo case involved government observation from aircraft – and determined that just as the general public could fly overhead, and need not turn a blind eye to that which they flew over, so could police and other governmental officials. The argument made by government attorneys here is so illogical that it would be humorous if it wasn’t made defending illegal actions by our own government. 

 

Essentially the argument is that if a government official could see something by flying overhead, or from any neighboring property, or even while trespassing on that property but not particularly close to the home… then it was knowingly exposed to the public view, so it was not the subject of Fourth Amendment protections, and no warrant is needed then to search or seize within that area. 

 

            Folks, this is a severe twist of the law… it’s absolutely asinine but the argument is being made time and time again. If in fact the argument had any legal merit, it would mean that those case overturned all existing case law regarding the Constitutional protections of curtilage. Unfortunately for these poor misguided government attorneys however… the strongest cases in recent history to define what Constitutional protections are afforded the curtilage of a home, and even to define what is curtilage came long after Katz, and some before, and some after Ciraolo. The cases of Oliver v. US, and US v. Dunn came in 1984 and 1987 respectively, and they set forth in clear understandable terms what the law is when it comes to curtilage, the Open Fields doctrine, and the Fourth Amendment.[2]  Obviously, to say that one overturned the other would mean that clearly the Katz case no longer held any merit. Such is not the case however, and would require a much broader application of Katz than was intended.

            Clearly the fact that the Supreme Court – long after its decision in Katz – stated that the curtilage of a home received the same stalwart protections as the interior of the home itself indicates that the decision in Katz was not intended to determine or define the law in regards to what was, or what was not, protected curtilage.  Those decisions are to be made in accordance with the Courts decisions in later cases. The  Dunn court clearly defined curtilage as being the area surrounding the home into which everyday life overflows.  In real simple terms… that’s the yard, folks.  The areas where children play, or where the clothes are hung on the line to dry… the area where folks might sit to enjoy a sunset on a summer evening, or a glass of tea on a sunny spring day. Where the bar b q grill is, or the picnic table… Those areas are protected curtilage, and cannot be invaded without a warrant.

            So what is the deal with Katz, then… and What about the California v. Ciraolo case?  Well… Katz deals with the Plain View doctrine, and so does Ciraolo. The clear difference is that observation from the air – or from any other public vantage point -  does not involve a physical intrusion without a warrant.  Only is a select few circumstances can an area which otherwise cannot be searched without a warrant become readily searchable/ seize-able based upon the Plain View doctrine. The warrant requirement still applies if the officers cannot legally access the location in question, unless exigent circumstances allow for an exception to the warrant requirement.  An example would be if an officer were to see illegal drugs beside the front door of a home. The law allows him to approach the door anyway, so he has lawful access to the drugs. Since the drugs could be easily disposed of, and the evidence lost, the law currently would allow for the drugs to be seized without getting prior judicial approval. This would be an exigent circumstance recognized by the law.  The Plain View Doctrine allows for an officer who obtains a lawful view of something which is by its very nature obviously incriminating to seize that item without a warrant. When it relates however to zoning and code enforcement issues, the officer obtaining the lawful view of something he suspects is a violation can generally only use that information to procure a warrant. There is no exigent circumstance in most cases that would allow his entry. In the rarest of cases, it may be possibly for exigent circumstances to exist, but those would fall under a very narrow scope that generally do not apply to private property… that would be a serious risky to the public safety which would require immediate action because waiting to obtain a warrant could result in serious injury or other threats to the general public.  This author would suggest that such a condition would be extremely rare, but I suppose could occur.  As I often do, I’ll relate to the same analogy I’ve used to explain the police powers before… if you are experimenting with bomb making at the edge of your property… well, I’d suggest that a serious threat to the public safety might create a sufficient exigent circumstance for any passing officer to enter without a warrant in the interest of protecting the public safety.  I would also suggest that you be detained for examination and treatment under the Baker Act.[3]  Again, this author would suggest that such situations would be extremely rare, and generally covered under other (criminal) laws, not zoning or maintenance codes.

            In short, the Plain View doctrine has little or no bearing upon zoning and code enforcement issues. Unless there is an immediate threat to the public safety, a zoning or code enforcement violation generally cannot be immediately seized, and as such, the doctrine simply does not apply. If there is an obvious violation, then the enforcement officer has every right to begin enforcement proceedings – generally writing a citation or warning notice in most areas – but has no right to conduct a warrantless search in conjunction with that citation. If an item or area is suspect, but not obviously in violation, the burden of “probable cause” has been virtually removed from the equation, and an administrative search warrant can be procured easily. The officer has no right of entry outside of such a warrant into those areas which are constitutionally protected.

            So how do Katz and Ciraolo apply to zoning and code enforcement issues? They provide a healthy contrast for use in legal briefs.  Katz in fact points out the contrast – “what a man seeks to preserve as private, even in an area accessible to the public may be Constitutionally protected.”  The “clear bright line” required by some federal circuits to defeat a claim to qualified immunity is drawn based on the objective (visible) factors outlined in Dunn to determine the extent of the curtilage, and the determination of whether or not an invasion was actually made.  The contrast being that officers may lawfully look from a public place – as in Ciraolo – but may not invade a private place in the curtilage of a home.  While the governmental attorneys cite the right authority to help define the line which government may not cross, they attempt to obscure the line which that authoritative case law provides. 

            Very simply put – Dunn defines curtilage and gives the factors to define what is protected. Oliver helps explain the law about the rest of an area through the open fields doctrine. Katz explains that it is in fact a look at the objective signs of a person’s expectation of privacy which makes it a reasonable one (which is by the way, the 4^th of the factors outlined in the Dunn holdings), and Ciraolo simply shows that an officer can go anywhere the public can lawfully go in an attempt to collect information and enforce the law, and he need not be blind to get there.

 

            Here’s a few quotes to help you fully understand the relevant law :

 

 

United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) Held:

        

1.      The area near the barn is not within the curtilage of the house for Fourth Amendment purposes. Extent-of-curtilage questions should be resolved with particular reference to the following four factors, at least to the extent that they bear upon whether the area claimed to be curtilage is so intimately tied to the home itself that it should be placed under the home's "umbrella" of protection: (1) the proximity of the area to the home; (2) whether the area is within an enclosure surrounding the home; (3) the nature and uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by passersby (emphasis added for this citation)

 

"Even the most law-abiding citizen has a very tangible
interest in limiting the circumstances under which the
sanctity of his home may be broken by official authority . .”

 

Camara v. Municipal Court, 387 U.S. 523 (1967)

 

 

"In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment's protections."

 

Camara, 387 U.S. at 534.

 

"Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers, 342 U.S. 48, 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions. Omission of such authorization "bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the . . . search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment." Beck v. Ohio , 379 U.S. 89, 96. And bypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment violations "only in the discretion of the police."  

Katz v. United States, 389 U.S. 347 (1967) (some footnotes omitted)

 

 

The Government's assertion that by exposing his bag to the public, petitioner lost a reasonable expectation that his bag would not be physically manipulated is rejected. California v. Ciraolo, 476 U.S. 207, and Florida v. Riley, 488 U.S. 445, are distinguishable, because they involved only visual, as opposed to tactile, observation. Physically invasive inspection is simply more intrusive than purely visual inspection. Under this Court's Fourth Amendment analysis, a court first asks whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that "he [sought] to preserve [something] as private." Smith v. Maryland , 442 U.S. 735, 740. Here, petitioner sought to preserve privacy by using an opaque bag and placing it directly above his seat. Second, a court inquires whether the individual's expectation of privacy is "one that society is prepared to recognize as reasonable." Ibid. Although a bus passenger clearly expects that other passengers or bus employees may handle his bag, he does not expect that they will feel the bag in an exploratory manner. But this is exactly what the agent did here. Pp. 25.

167 F.3d 225, reversed.

Bond v. U.S. , 529 U.S. 337, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000)

Several other courts, however, have considered natural enclosures to be compelling evidence. Williams v. Garrett, 722 F.Supp. 254 (W.D.Va.1989), for example, the district court held that "reading the word 'enclosure' in Dunn to require an artificial barrier seems unduly narrow." Id. 722 F.Supp. at 260. The plaintiff's property in Williams was enclosed by woods and hedges. Id. 722 F.Supp. at 261. The court correctly observed that "requiring a person to expend resources and sacrifice aesthetics by building a fence in order to obtain protection from unreasonable searches is not required by the constitution." Id.

Daughenbaugh v. City of Tiffin , 150 F.3d 594 (C.A.6 (Ohio), 1998)

 

 

In United States v. Ventling, 678 F.2d 63 (8th Cir. 1982) the 8^th Circuit noted that,

“The absence of a closed or blocked gate in this country creates an invitation to the public that a person can lawfully enter along the driveway during daylight hours to contact the occupants for a lawful request and if the request is refused to leave by the same way. The presence of "no trespassing" signs in this country without a locked or closed gate make the entry along the driveway for the purposes above described not a trespass and therefore does not constitute an intrusion prohibited by the Fourth Amendment.”

 

 

And since we are talking about using the law against government officials… a quick refresher course on Qualified Immunity

( more appropriately Quantified Impunity)

 

“Government officials are entitled to qualified immunity for discretionary acts that do “not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.” Anderson v. Creighton, 483 U.S. 635,638-39 (1987); citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  (see also Goad v. Mitchell 6^th circuit, July 2002). However, “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Harlow at 818-819. “When government officials abuse their offices, "action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees." Id at 814. Qualified immunity does not protect a public official from the consequences of his own incompetence--the inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal.  See Malley v. Briggs, 475 U.S. 335, 345 (1986)