686 F.2d 356 (6th Cir. 1982), 80-5437, United States v. Oliver

Docket Nº:80-5437.
Citation:686 F.2d 356
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Ray E. OLIVER, a/k/a Edward Ray Oliver, Defendant-Appellee.
Case Date:May 05, 1982
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 356

686 F.2d 356 (6th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellant,


Ray E. OLIVER, a/k/a Edward Ray Oliver, Defendant-Appellee.

No. 80-5437.

United States Court of Appeals, Sixth Circuit

May 5, 1982

Argued Feb. 1, 1982.

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Alexander Taft, U. S. Atty., Scott Wendelsdorf, Mikell McMurray, Louisville, Ky., William C. Bryson, Chief, Appellate Section, Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Robert L. Wilson, Jamestown, Ky., for defendant-appellee.

Before EDWARDS, Chief Judge, and LIVELY, ENGEL, KEITH, MERRITT, BROWN, KENNEDY, MARTIN and JONES, Circuit Judges, sitting En Banc.

BAILEY BROWN, Circuit Judge.

In Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), the Supreme Court, in an opinion by Justice Holmes, unanimously held that the protection of the Fourth Amendment does not extend to open fields. This court, in United States v. Hassell, 336 F.2d 684 (6th Cir.

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1964) (per curiam), cert. denied, 380 U.S. 965, 85 S.Ct. 1111, 14 L.Ed.2d 155 (1965), citing Hester, also held that Fourth Amendment protection does not apply to open fields. In the instant case, a panel of this court, relying on analysis it derived from Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), held that the owner of an open field may have Fourth Amendment protection if he reasonably expects privacy and that therefore the holdings in Hester and Hassell, to this extent, no longer stand. United States v. Oliver, 657 F.2d 85 (6th Cir. 1981). We conclude, on the contrary, that Hester is still good Fourth Amendment law, that Katz does not require an ad hoc consideration of the facts of each case to determine whether the owner of an open field reasonably expected privacy and that therefore Hassell is still the law of this circuit.

In the case before us, the appellee, Oliver, is a retired farmer who lives on his farm in the Western District of Kentucky and leases parts of it to others. In July, 1980, narcotics agents of the Kentucky State Police received an anonymous tip that marijuana was being raised on the farm. They had heard before rumors to this effect and so they decided to investigate. 1

The agents approached Oliver's farm on Kentucky Highway 379 and turned off on a road on Oliver's land that leads past his house and then past a barn near the back end of the farm. A short distance beyond the house the agents encountered a locked gate that blocked the road, and there they parked their car and walked around the gate on a path adjacent to it. There were "No Trespassing" signs as one turned off Highway 379 and along the road leading to the house and another at this gate. The agents on foot continued down this road to the barn, which was located about three-fourths of a mile beyond the house. At the barn was a parked camper but no person was present and the agents continued further on this road. Shortly thereafter, someone appeared near the camper and called to the agents to come back, explaining that hunting was not allowed, at which time the agents started back to the camper, announcing that they were Kentucky State Police. When they got back to the camper, however, no one was there. The agents then resumed their investigation, which resulted in their finding two open fields of marijuana at the back end of the farm.

The Cumberland River bounds the farm just beyond these fields of marijuana. The marijuana could not be seen by anyone standing on land other than Oliver's. These fields were located about one mile from Oliver's house by road and almost that far in a direct line. The fields had been leased by Oliver to some strangers. 2

After Oliver's arrest and indictment for knowingly and intentionally manufacturing marijuana, 21 U.S.C. § 841(a)(1) (1976) and 18 U.S.C. § 2 (1976), the district court upheld Oliver's motion to suppress the marijuana evidence, relying on analysis it derived from Katz. The district court held that this search required a warrant because, under the circumstances presented here, Oliver had an expectation of privacy and that the expectation was a reasonable one. The government then took this appeal. A panel of this court agreed with the analysis and conclusion of the district court and affirmed (657 F.2d 85 (6th Cir. 1981)) after which this court heard the appeal en banc.

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Court held that it was error to admit into evidence the defendant's end of a telephone conversation that was recorded, without a warrant, by means of a device placed on the outside of a telephone booth. "For the Fourth Amendment protects people, not places." Id. at 351, 88 S.Ct. at 511. Thus,

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reasoned the Court, since Katz had a reasonable expectation of privacy when he entered the booth, closed the door, and paid the toll for the call, it was a violation of the Fourth Amendment to record the conversation without a warrant. In the instant case, it is argued that, since under the circumstances Oliver had a reasonable expectation of privacy with respect to the fields of marijuana, it follows that he, too, was entitled to Fourth Amendment protection. We disagree with this conclusion for several reasons. 3

In the first place, it is apparent that the Court in Katz was called upon to consider application of the Fourth Amendment under circumstances that could not have been contemplated at the time the Amendment was formulated and adopted. As the opinion for the Court by Justice Stewart states: "To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication." Id. at 352, 88 S.Ct. at 511. Moreover, in his concurring opinion, Justice Harlan states that the prior holding of the Court in Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), "that electronic surveillance accomplished without the physical penetration of petitioner's premises by a tangible object did not violate the Fourth Amendment," Katz, supra 389 U.S. at 362, 88 S.Ct. at 517, must be overruled because "(i)ts limitation on Fourth Amendment protection is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion." Id. On the other hand, here we are called upon to apply the Fourth Amendment to an open field. As Justice Holmes said in Hester: "(T)he special protection accorded by the 4th Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law. 4 Bl. Com. 223, 225, 226." 265 U.S. at 59, 44 S.Ct. at 446.

A second reason why we conclude that Katz did not amend the existing open fields doctrine is that Katz itself recognizes the continuing validity of the Hester proposition that the Fourth Amendment does not protect an owner as to his open fields. In the opinion for the Court, Justice Stewart alludes to the fact that the parties to that litigation considered it to be common ground that, on the basis of Hester, an open field is outside the reach of the Fourth Amendment. 389 U.S. at 351 n.8, 88 S.Ct. at 511 n.8. The opinion does not suggest that under certain circumstances it would not be. More importantly, in his concurring opinion, Justice Harlan states: "I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U.S. 383 (34 S.Ct. 341, 58 L.Ed. 652) ..., and unlike a field, Hester v. United States, 265 U.S. 57 (44 S.Ct. 445, 68 L.Ed. 898) ..., a person has a constitutionally protected reasonable expectation of privacy ...." Id. 389 U.S. at 360, 88 S.Ct. at 516 (Harlan, J., concurring) Justice Harlan further states:

As the Court's opinion states: "the Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a "place." My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders

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are not "protected" because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States, supra.

Id. 389 U.S. at 361, 88 S.Ct. at 516.

We conclude, therefore, that Katz does not require an ad hoc investigation of the circumstances to determine whether the owner of an open field had an expectation of privacy and whether the expectation was reasonable. Rather we conclude that under Hester and Katz any expectation of privacy that an owner might have with respect to his open field is not, as a matter of law, an expectation that society is prepared to recognize as reasonable. 4

We further point out, in support of our conclusion that the open fields doctrine as stated in Hester survived the Katz decision, that the Supreme Court has on several occasions since Katz referred to the Hester decision without indicating that its principle has been diluted. See, e.g., Rakas v. Illinois, 439 U.S. 128, 143 n.12, 99 S.Ct. 421, 430 n.12, 58 L.Ed.2d 387 (1978); G. M. Leasing Corp. v. United States, 429 U.S. 338, 352, 97 S.Ct. 619, 628, 50 L.Ed.2d 530...

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