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    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
    Message 1 of 1 , Aug 3, 2006
      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

      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

      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 4th 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

      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 8th
      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 6th 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)

      [1] Given here are paraphrases of the cases, not actual quotes. Proper
      quotes and citations will follow the essay for the ease of use for those
      litigating such cases.

      [2] It should be noted that this author does not approve of the Supreme
      Courts very limited application of the Fourth Amendment, but this essay
      will state what the currently valid positions of the Courts are on the
      issue since that is in all practicality what the law is. The text of the
      Constitution speaks for itself on what the law should be.

      [3] Mental Health examination which allows for non-voluntary
      hospitalization for a short period of time and potentially a judicial
      determination of whether or not you pose a threat to yourself and/or
      others before your release or commitment to a mental health facility.

      The Links...

      Katz v. United States 389 US 347 (1967)

      United States v. Dunn 480 US 294 (1987)

      Oliver v. United States 466 US 170 (1984)

      Camara v. Municipal Court 387 US 523 (1967)
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