airspace who glanced down could have seen everything...(his) expectation that his garden was
protected from such observation is unreasonable and is not one that society is prepared to honor...in an
age where private and commercial flight in the public airways is routine, it is unreasonable for
respondent to expect that his marijuana plants were constitutionally protected from being observed with
the naked eye from an altitude of 1,000 feet. The Fourth Amendment simply does not require the
police traveling in the public airways at this altitude to obtain a warrant in order to observe what is
visible to the naked eye."
Contrast the above case with U.S. v. Peters, 11 MJ 901 (AFCMR, 1981). There, the police took a
marijuana detection dog to the accused's on-post family quarters. No one had authorized any such
search. The dog was taken past all of the doors and windows. The issue was: Do occupants of family
housing have a reasonable expectation of privacy in the grounds outside their quarters? Here, the
court held that the yard "was not a public walkway or a common area but rather a specific yard closely
associated with the house." The police, when they stood in the yard and had the dog sniff at the
windows, "were not in any place where they otherwise had a right to be. In short, they were in the
same position as trespassers" and were held to have violated the accused's reasonable expectation of
privacy in his home.
The Fourth Amendment does not protect common areas. It also does not protect "open fields."
Hester v. U.S., 68 L. Ed. 898 (1924). A person's private yard, however, is not the same as an open
field. The police may enter and search an "open field" without a warrant. In one case, the police had
reports that marijuana was being grown on the accused's farm, so they went there to investigate. They
found the marijuana growing about a mile from the residence itself. In another case, the police had a
report that marijuana was being grown in the woods behind the accused's home. Going there, they
also found the marijuana. Both cases went to the U.S. Supreme Court, which held that "an individual
may not legitimately demand privacy for activities conducted out of doors in fields, except in the area
immediately surrounding the home...open fields do not provide the setting for those intimate activities
that the Fourth Amendment is intended to shelter from government interference or surveillance. There
is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that
occur in open fields...For these reasons, the asserted expectation of privacy in open fields in not an
expectation that society recognizes as reasonable." Oliver v. U.S., 80 L.Ed.2d 214 (1984).
An open field is different, then, from "the land immediately surrounding and associated with the
home." This area immediately surrounding the home (called the curtilage) "is the area to which extends
the intimate activity associated with the sanctity of a man's home and the privacies of life...no
expectation of privacy legitimately attaches to open fields...an individual has no legitimate expectation
that open fields will remain free from warrantless intrusion by government officers." The presence of
"no trespassing" signs does not change the outcome. The point is that an intrusion into an "open field"
does not interfere with "the personal and societal values protected by the Fourth Amendment." Oliver
v. U.S., 80 L. Ed.2d 214 (1984).
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