th
John N. Ferdico
Henry F. Fradella
Christopher Totten
Open Fields and
Abandoned Property
Chapter 12
Prepared by Tony Wolusky

 The Fourth Amendment protects people from unreasonable searches and seizures of their
“persons, houses, papers and effects.” This does not include open fields.
 Law enforcement officers may search for items of evidence in the open fields without a warrant or probable cause, and may seize items if they have probable cause to believe that they are items of an incriminating character subject to seizure under the law of the officers’ jurisdiction.

 Open fields is all the space that is not contained within the curtilage and need be neither “open” nor “fields.”
 The curtilage is the area around the home that harbors intimate activities associated with domestic life and the privacies of the home.

 The area within the curtilage is determined by considering four factors.
1.
2.
3.
The proximity of the area claimed to be curtilage to the home
Whether the area is included within an enclosure surrounding the home
The nature of the uses to which the area is put
4.
The steps taken by the resident to protect the area from observation by people passing by

 The definitive trend among lower courts after the Supreme Court’s decision in Dunn , is to use a totality of circumstances approach in determining the extent of the curtilage, with the distance from an individual’s dwelling as one of many factors to be weighed in making the determination.

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Generally, the shared areas of multiple-occupancy buildings are not entitled to Fourth Amendment protection because the public has access to them.
However, in Fixel v. Wainwright , 492 F.2d 480 (5th Cir. 1974), two law enforcement officers who had been informed that narcotics were being sold on the defendant’s premises observed the defendant’s residence in a four-unit apartment building. Over a 45-minute period, several people entered the defendant’s apartment. Each time, the defendant went into his backyard and removed a shaving kit from beneath some rubbish under a tree. One officer went into the backyard and seized the shaving kit, while the other officer arrested the defendant. Chemical analysis revealed that the shaving kit contained heroin. The court held that the backyard was a protected area and that the seizure and search of the shaving kit were illegal.

 A garage, and the area immediately surrounding it, is ordinarily considered part of the curtilage, especially if the garage is near or attached to the dwelling house and used in connection with it.
 In State v. Ross , 959 P.2d 1188, 1192 (Wash.
App. 1998), where the garage was located within twenty-five to forty yards from a street abutting defendant’s home, the court prohibited the warrantless entry by police into the area immediately surrounding the garage.

 In determining whether an outbuilding is part of the curtilage, courts consider factors such as:
 distance from the dwelling house;
 presence and location of fences or other enclosures;
 use of the building; and
 attempts to protect the area from observation.

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[T]he term “open fields” may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither
“open” nor a “field” as those terms are used in common speech. For example . . . a thickly wooded area nonetheless may be an open field as that term is used in construing the
Fourth Amendment. Oliver v. United States ,
466 U.S. 170, 180 n.11 (1984).

 Law enforcement officers may make warrantless observations into constitutionally protected areas from the open fields, the air or a public vantage point, if the observations do not violate the reasonable expectation of privacy of the person whose premises or activities are being observed.

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In general, if an officer gathers information while situated in a public place or a place where an ordinary citizen with legitimate business might be expected to be, the officer does not invade anyone’s reasonable expectation of privacy.
Therefore, an observation by a police officer from an ordinary means of access to a dwelling, such as a driveway, walkway, front porch or side door, may not violate a person’s reasonable expectation of privacy if a member of the public could have also made a similar observation.

 A law enforcement officer, without a warrant or probable cause, may retrieve items of evidence that have been abandoned by their owners.
 Property has been abandoned when its owner has voluntarily discarded, left behind, or otherwise relinquished his or her interest in the property so as to no longer retain a reasonable expectation of privacy with regard to it.

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Courts use a totality of circumstances approach when evaluating whether an individual intended to abandon property.
Courts rely on two principal factors in determining whether an individual intended to abandon property.
1.
2.
Disclaimers, or denials, of ownership in the property
Physical relinquishment of the property

 A person who establishes a reasonable expectation of privacy in property has not abandoned that property, and the property may not be searched or seized without a warrant or other legal justification.

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(1) removing personal belongings;
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(2) failing to lock doors;
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(3) being observed vacating the premises and/ or telling others about vacating the premises;

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(4) failing to pay rent for a long time;
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(5) long absence from the premises;
(6) failure to communicate with anyone regarding the premises;
(7) failure to attend to or care for the premises; and
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(8) holding a moving sale, turning in keys and/ or paying final rent and other bills.

 Absent state law to the contrary, when a person leaves garbage outside the curtilage of a home (i.e., on the curb), the person no longer has a reasonable expectation of privacy in the garbage and the Fourth
Amendment does not prohibit the warrantless search and seizure of the garbage.
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Garbage left inside a home or on the home’s curtilage would ordinarily receive full Fourth Amendment protection.

 To have a valid abandonment, property must be abandoned voluntarily and not as a result of unlawful activity by a law enforcement officer. Property abandoned as a result of illegal police conduct will be excluded from evidence.