The "open fields" doctrine, first enunciated by this Court in Hester v. United States, 265 U.S. 57 (1924), permits police officers to enter and search a field without a warrant. We granted certiorari in these cases to clarify confusion that has arisen as to the continued vitality of the doctrine.
No. 82-15. Acting on reports that marihuana was being raised on the farm of petitioner Oliver, two narcotics agents of the Kentucky State Police went to the farm to investigate.
Petitioner was arrested and indicted for "manufactur[ing]" a "controlled substance." 21 U. S. C. § 841(a)(1). After a pretrial hearing, the District Court suppressed evidence of the discovery of the marihuana field. Applying Katz v. United States, 389 U.S. 347, 357 (1967), the court found that petitioner had a reasonable expectation that the field would remain private because petitioner "had done all that could be expected of him to assert his privacy in the area of farm that was searched." He had posted "No Trespassing" signs at regular intervals and had locked the gate at the entrance to the center of the farm. App. to Pet. for Cert. in No. 82-15,
The Court of Appeals for the Sixth Circuit, sitting en banc, reversed the District Court. 686 F.2d 356 (1982).
No. 82-1273. After receiving an anonymous tip that marihuana was being grown in the woods behind respondent Thornton's residence, two police officers entered the woods by a path between this residence and a neighboring house. They followed a footpath through the woods until they reached two marihuana patches fenced with chicken wire. Later, the officers determined that the patches were on the property of respondent, obtained a warrant to search the property, and seized the marihuana. On the basis of this evidence, respondent was arrested and indicted.
The Maine Supreme Judicial Court affirmed. 453 A.2d 489 (1982). It agreed with the trial court that the correct question was whether the search "is a violation of privacy on which the individual justifiably relied," id., at 493, and that the search violated respondent's privacy. The court also agreed that the open fields doctrine did not justify the search. That doctrine applies, according to the court, only when officers are lawfully present on property and observe "open and patent" activity. Id., at 495. In this case, the officers had trespassed upon defendant's property, and the respondent had made every effort to conceal his activity. We granted certiorari. 460 U.S. 1068 (1983).
Nor are the open fields "effects" within the meaning of the Fourth Amendment. In this respect, it is suggestive that James Madison's proposed draft of what became the Fourth
This interpretation of the Fourth Amendment's language is consistent with the understanding of the right to privacy expressed in our Fourth Amendment jurisprudence. Since Katz v. United States, 389 U.S. 347 (1967), the touchstone of Amendment analysis has been the question whether a person has a "constitutionally protected reasonable expectation of privacy." Id., at 360 (Harlan, J., concurring). The Amendment does not protect the merely subjective expectation of privacy, but only those "expectation[s] that society is prepared to recognize as `reasonable.' " Id., at 361. See also Smith v. Maryland, 442 U.S. 735, 740-741 (1979).
No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. See Rakas v. Illinois, 439 U.S. 128, 152-153
In this light, the rule of Hester v. United States, supra, that we reaffirm today, may be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. See also Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861, 865 (1974). This rule is true to the conception of the right to privacy embodied in the Fourth Amendment. The Amendment reflects the recognition of the Framers that certain enclaves should be free from arbitrary government interference. For example, the Court since the enactment of the Fourth Amendment has stressed "the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic." Payton v. New York, supra, at 601.
Petitioner Oliver and respondent Thornton contend, to the contrary, that the circumstances of a search sometimes may indicate that reasonable expectations of privacy were violated; and that courts therefore should analyze these circumstances on a case-by-case basis. The language of the Fourth Amendment itself answers their contention.
Nor would a case-by-case approach provide a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment. Under this approach, police officers would have to guess before every search whether landowners had erected fences sufficiently high, posted a sufficient number of warning signs, or located contraband in an area sufficiently secluded to establish a right of privacy. The lawfulness of a search would turn on " `[a] highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions . . . .' " New York v. Belton, 453 U.S. 454, 458 (1981) (quoting LaFave, "Case-By-Case Adjudication" versus "Standardized Procedures": The Robinson Dilemma, 1974 S. Ct. Rev. 127, 142). This Court repeatedly has acknowledged the difficulties created for courts, police, and citizens by an ad hoc, case-by-case definition of Fourth Amendment standards to be applied in differing factual circumstances. See Belton, supra, at 458-460; Robbins v. California, 453 U.S. 420, 430 (1981) (POWELL, J., concurring in judgment); Dunaway v. New York, 442 U.S. 200, 213-214 (1979); United States v. Robinson, 414 U.S. 218, 235 (1973). The ad hoc approach not only makes it difficult for the policeman to discern the scope of his authority, Belton, supra, at 460; it also creates a danger that constitutional
In any event, while the factors that petitioner Oliver and respondent Thornton urge the courts to consider may be relevant to Fourth Amendment analysis in some contexts, these factors cannot be decisive on the question whether the search of an open field is subject to the Amendment. Initially, we reject the suggestion that steps taken to protect privacy establish that expectations of privacy in an open field are legitimate. It is true, of course, that petitioner Oliver and respondent Thornton, in order to conceal their criminal activities, planted the marihuana upon secluded land and erected fences and "No Trespassing" signs around the property. And it may be that because of such precautions, few members of the public stumbled upon the marihuana crops seized by the police. Neither of these suppositions demonstrates, however, that the expectation of privacy was legitimate in the sense required by the Fourth Amendment. The test of legitimacy is not whether the individual chooses to conceal assertedly "private" activity.
Nor is the government's intrusion upon an open field a "search" in the constitutional sense because that intrusion is a trespass at common law. The existence of a property right is but one element in determining whether expectations of privacy are legitimate. " `The premise that property interests control the right of the Government to search and seize has been discredited.' " Katz, 389 U. S., at 353 (quoting Warden v. Hayden, 387 U.S. 294, 304 (1967)). "[E]ven a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon." Rakas v. Illinois, 439 U. S., at 144, n. 12.
The common law may guide consideration of what areas are protected by the Fourth Amendment by defining areas whose invasion by others is wrongful. Id., at 153 (POWELL, J., concurring).
We conclude that the open fields doctrine, as enunciated in Hester, is consistent with the plain language of the Fourth Amendment and its historical purposes. Moreover, Justice Holmes' interpretation of the Amendment in Hester accords with the "reasonable expectation of privacy" analysis developed in subsequent decisions of this Court. We therefore affirm Oliver v. United States; Maine v. Thornton is reversed and remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE WHITE, concurring in part and concurring in the judgment.
I concur in the judgment and join Parts I and II of the Court's opinion. These Parts dispose of the issue before us; there is no need to go further and deal with the expectation of privacy matter. However reasonable a landowner's expectations of privacy may be, those expectations cannot convert a field into a "house" or an "effect."
JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE STEVENS join, dissenting.
In each of these consolidated cases, police officers, ignoring clearly visible "No Trespassing" signs, entered upon private land in search of evidence of a crime. At a spot that could
The Court holds that police conduct of this sort does not constitute an "unreasonable search" within the meaning of the Fourth Amendment. The Court reaches that startling conclusion by two independent analytical routes. First, the Court argues that, because the Fourth Amendment by its terms renders people secure in their "persons, houses, papers, and effects," it is inapplicable to trespasses upon land not lying within the curtilage of a dwelling. Ante, at 176-177. Second, the Court contends that "an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home." Ante, at 178. Because I cannot agree with either of these propositions, I dissent.
The first ground on which the Court rests its decision is that the Fourth Amendment "indicates with some precision the places and things encompassed by its protections," and that real property is not included in the list of protected spaces and possessions. Ante, at 176. This line of argument has several flaws. Most obviously, it is inconsistent with the results of many of our previous decisions, none of which the Court purports to overrule. For example, neither a public telephone booth nor a conversation conducted therein can fairly be described as a person, house, paper, or effect;
Indeed, the Court's reading of the plain language of the Fourth Amendment is incapable of explaining even its own holding in this case. The Court rules that the curtilage, a zone of real property surrounding a dwelling, is entitled to constitutional protection. Ante, at 180. We are not told, however, whether the curtilage is a "house" or an "effect" — or why, if the curtilage can be incorporated into the list of things and spaces shielded by the Amendment, a field cannot.
The Court's inability to reconcile its parsimonious reading of the phrase "persons, houses, papers, and effects" with our prior decisions or even its own holding is a symptom of a more fundamental infirmity in the Court's reasoning. The Fourth Amendment, like the other central provisions of the Bill of Rights that loom large in our modern jurisprudence, was designed, not to prescribe with "precision" permissible and impermissible activities, but to identify a fundamental human liberty that should be shielded forever from government intrusion.
The liberty shielded by the Fourth Amendment, as we have often acknowledged, is freedom "from unreasonable government intrusions into . . . legitimate expectations of privacy." United States v. Chadwick, 433 U.S. 1, 7 (1977). That freedom would be incompletely protected if only government conduct that impinged upon a person, house, paper, or effect were subject to constitutional scrutiny. Accordingly, we have repudiated the proposition that the Fourth Amendment applies only to a limited set of locales or kinds of property. In Katz v. United States, we expressly rejected a proffered locational theory of the coverage of the Amendment, holding that it "protects people, not places." 389 U. S., at 351. Since that time we have consistently adhered
The second ground for the Court's decision is its contention that any interest a landowner might have in the privacy of his woods and fields is not one that "society is prepared to recognize as `reasonable.' " Ante, at 177 (quoting Katz v. United States, 389 U. S., at 361 (Harlan, J., concurring)).
As the Court acknowledges, we have traditionally looked to a variety of factors in determining whether an expectation of privacy asserted in a physical space is "reasonable." Ante, at 177-178. Though those factors do not lend themselves to precise taxonomy, they may be roughly grouped into three categories. First, we consider whether the expectation at issue is rooted in entitlements defined by positive law. Second, we consider the nature of the uses to which spaces of the sort in question can be put. Third, we consider whether the person claiming a privacy interest manifested that interest to the public in a way that most people would understand and respect.
We have frequently acknowledged that privacy interests are not coterminous with property rights. E. g., United States v. Salvucci, 448 U.S. 83, 91 (1980). However, because "property rights reflect society's explicit recognition
It is undisputed that Oliver and Thornton each owned the land into which the police intruded. That fact alone provides considerable support for their assertion of legitimate privacy interests in their woods and fields. But even more telling is the nature of the sanctions that Oliver and Thornton could invoke, under local law, for violation of their property rights. In Kentucky, a knowing entry upon fenced or otherwise enclosed land, or upon unenclosed land conspicuously posted with signs excluding the public, constitutes criminal trespass. Ky. Rev. Stat. §§ 511.070(1), 511.080, 511.090(4) (1975). The law in Maine is similar. An intrusion into "any place from
The uses to which a place is put are highly relevant to the assessment of a privacy interest asserted therein. Rakas v. Illinois, supra, at 153 (POWELL, J., concurring). If, in light of our shared sensibilities, those activities are of a kind in which people should be able to engage without fear of intrusion by private persons or government officials, we extend the protection of the Fourth Amendment to the space in question, even in the absence of any entitlement derived from positive law. E. g., Katz v. United States, 389 U. S., at 352-353.
Whether a person "took normal precautions to maintain his privacy" in a given space affects whether his interest is one protected by the Fourth Amendment. Rawlings v. Kentucky, 448 U.S. 98, 105 (1980).
Certain spaces are so presumptively private that signals of this sort are unnecessary; a homeowner need not post a "Do Not Enter" sign on his door in order to deny entrance to uninvited guests.
Undeveloped land falls into the last-mentioned category. If a person has not marked the boundaries of his fields or woods in a way that informs passersby that they are not welcome,
A very different case is presented when the owner of undeveloped land has taken precautions to exclude the public. As indicated above, a deliberate entry by a private citizen onto private property marked with "No Trespassing" signs will expose him to criminal liability. I see no reason why a government official should not be obliged to respect such
In sum, examination of the three principal criteria we have traditionally used for assessing the reasonableness of a person's expectation that a given space would remain private indicates that interests of the sort asserted by Oliver and Thornton are entitled to constitutional protection. An owner's right to insist that others stay off his posted land is firmly grounded in positive law. Many of the uses to which such land may be put deserve privacy. And, by marking the boundaries of the land with warnings that the public should not intrude, the owner has dispelled any ambiguity as to his desires.
The police in these cases proffered no justification for their invasions of Oliver's and Thornton's privacy interests; in neither case was the entry legitimated by a warrant or by one of the established exceptions to the warrant requirement. I conclude, therefore, that the searches of their land violated the Fourth Amendment, and the evidence obtained in the course of those searches should have been suppressed.
A clear, easily administrable rule emerges from the analysis set forth above: Private land marked in a fashion sufficient to render entry thereon a criminal trespass under the law of the State in which the land lies is protected by the Fourth Amendment's proscription of unreasonable searches and seizures. One of the advantages of the foregoing rule is that
By contrast, the doctrine announced by the Court today is incapable of determinate application. Police officers, making warrantless entries upon private land, will be obliged in the future to make on-the-spot judgments as to how far the curtilage extends, and to stay outside that zone.
The Court's holding not only ill serves the need to make constitutional doctrine "workable for application by rank-and-file, trained police officers," Illinois v. Andreas, 463 U.S. 765, 772 (1983), it withdraws the shield of the Fourth Amendment from privacy interests that clearly deserve protection. By exempting from the coverage of the Amendment large areas of private land, the Court opens the way to investigative activities we would all find repugnant. Cf., e. g., United States v. Lace, 669 F.2d 46, 54 (CA2 1982) (Newman, J., concurring in result) ("[W]hen police officers execute military maneuvers on residential property for three weeks of round-the-clock surveillance, can that be called `reasonable'?");
The Fourth Amendment, properly construed, embodies and gives effect to our collective sense of the degree to which men and women, in civilized society, are entitled "to be let alone" by their governments. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); cf. Smith v. Maryland, 442 U. S., at 750 (MARSHALL, J., dissenting). The Court's opinion bespeaks and will help to promote an impoverished vision of that fundamental right.
Contrary to respondent's assertion, we do not review here the state courts' finding as a matter of "fact" that the area searched was not an "open field." Rather, the question before us is the appropriate legal standard for determining whether search of that area without a warrant was lawful under the Federal Constitution.
The conflict between the two cases that we review here is illustrative of the confusion the open fields doctrine has generated among the state and federal courts. Compare, e. g., State v. Byers, 359 So.2d 84 (La. 1978) (refusing to apply open fields doctrine); State v. Brady, 406 So.2d 1093 (Fla. 1981) (same), with United States v. Lace, 669 F.2d 46, 50-51 (CA2 1982); United States v. Freie, 545 F.2d 1217 (CA9 1976); United States v. Brown, 473 F.2d 952, 954 (CA5 1973); Atwell v. United States, 414 F.2d 136, 138 (CA5 1969).
Our most recent decisions continue to rely on the conception of the purpose and scope of the Fourth Amendment that we enunciated in Katz. See, e. g., United States v. Jacobsen, ante, at 113-118; Michigan v. Clifford, 464 U.S. 287, 292-293 (1984); Illinois v. Andreas, 463 U.S. 765, 771 (1983); United States v. Place, 462 U.S. 696, 706-707 (1983); Texas v. Brown, 460 U.S. 730, 738-740 (1983) (plurality opinion); United States v. Knotts, 460 U.S. 276, 280-281 (1983).
In any event, to the extent that Hester may be read to support a rule any broader than that stated in Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861 (1974), it is undercut by our decision in Katz, which repudiated the locational theory of the coverage of the Fourth Amendment enunciated in Olmstead v. United States, 277 U.S. 438 (1928), and by the line of decisions originating in Katz, see supra, at 187-188, and n. 6.