In U.S. v. Dunn, 40 Cr. L. 3313 (1987), Drug Enforcement Administration agents placed beepers in
chemicals and equipment that were used to make controlled substances. They then tracked them to
the defendant's home. The home, a ranch, was totally circled by a fence. There were also various
other fenced areas inside of this perimeter. The residence was about 1/2 mile from a public road, and
was itself encircled by a fence. There were two barns about 50 yards away from the fence. One of
these barns was itself encircled by still another fence. The agents entered onto the property without a
warrant. To do so, they had to cross the perimeter fence. They also crossed over one other interior
fence. At this point, about halfway between the barn and the residence, they smelled phenylacetic
acid. They then crossed still another fence and were able to look into the barn, where they observed a
drug laboratory.
The Supreme Court explained that "curtilage" is "the area immediately surrounding a dwelling
house." The issue in such cases is whether the area encloses "the intimate activity associated with the
sanctity of a man's home." An important factor for the Court was the proximity of the area to the home
(here, it was approximately 50 yards away). A second important factor is whether the area is included
within an enclosure surrounding the home. A third is the nature of the uses to which the area is put;
i.e., is it to be considered part of the home? A final factor is the steps taken by the individual defendant
to protect the area from observation. The Court concluded that the area around the barn was an open
field. There was, then, no problem with the officers standing there when they made their observations.
e. The Wired Informant.
When an individual makes statements to his
confederates/accomplices, he is held to have assumed the risk of betrayal by them. Thus, his
misplaced trust and confidence in another does not protect him should the other person reveal his
conversation to the police. There is, then, no reasonable expectation of privacy that will safeguard the
accused against this possibility of betrayal. Again, the accused is deemed to have assumed the risk
that the other individual will not maintain the confidence of the communication.
In On Lee v. U.S., 96 L. Ed. 1270 (1952), the defendant spoke with an informant who was wired
for sound, wearing a concealed microphone. The conversation was overhead by nearby police officers.
This was not an unreasonable search, as the defendant had been "talking confidently and indiscreetly
with one he trusted." The fact that this trust was misplaced did not create a Fourth Amendment
violation. A somewhat similar issue arose in Lopez v. U.S. 10 L.Ed.2d 462 (1963), where the informant
recorded the conversation. The Supreme Court held that the informant would have been free to testify
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