Fences and the Fourth Amendment

One of the topics that generates numerous questions from officers and inspectors is the area of searches and inspections of yards and fenced areas. Officers and inspectors typically will inquire: what is "okay" during an inspection. What can you do? What "can't" you do?

In preparation for this topic, we have reviewed several court decisions illustrating application of the standards regarding warrantless searches of yards and fenced-in areas, and we have prepared the following written discussion.


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The cases are essentially unanimous in when it comes to defining the rules, but are quite divergent in the application of these requirements.

I.  DEFINING THE RULE (4th Amendment Searches)

The following is a quick statement of the rule and its exceptions:

1.1 Warrant Requirement - under the Fourth Amendment, a warrant is required to search an area in which a person has a "reasonable expectation of privacy" (there is no such expectation, however, for items in "plain view" - see below);

1.2 Reasonable Expectation of Privacy Test - the questions to ask in each case are:

(a) did the person exhibit an actual, subjective expectation to keep the area private (i.e. signs, fences, etc.);

(b) was the expectation "objectively reasonable" (i.e. reasonable to most people, or society as a whole); and

(c) has the expectation been violated by unreasonable government intrusion

1.3 Curtilage - the area surrounding a person's residence (especially the backyard) has been defined by the courts as an area in which a person generally has a reasonable expectation of privacy;

1.4 Plain View Exception - when the area observed is plainly visible, from a vantage point where the officer or inspector has a right to be, there is no reasonable expectation of privacy and thus, no "search" in the constitutional sense.

II.  APPLYING THE RULE

The California cases which apply the above rules and exceptions vary. Usually, the judges in these cases struggle with whether in fact the "plain view" exception should apply. I reviewed cases holding that it was perfectly acceptable to stand on a cement block in an alley to look over a fence into the defendant's yard. In a similar case, however, it was held that looking through slats or knotholes in a fence to view marijuana plants in a rear yard was an unreasonable government intrusion, and that taking additional means to look over the fence would also amount to such an intrusion.1

For guidance, however, I can offer some circumstances where the courts have essentially agreed that the "plain view" exception applies:

2.1 Neighbor's Upstairs Window - in the landmark California Supreme Court case, Dillon v. Superior Court, 7 Cal. 3d 305, the court upheld the officer's visual inspection of a fenced rear yard area conducted from a neighbor's upstairs bedroom window (with the neighbor's consent).2 In that case, the judges noted: "The view of the backyard was vulnerable to observation by any of petitioner's neighbor's, in essence, open to public view;"

2.2 Aerial Surveillance - (from police helicopters and airplanes) has been upheld, even when such flights are made specifically to view, investigate and photograph a suspect's residential property;

2.3 Optical Assistance - binoculars and flashlights do not effect "plain view" observations, so long as the violations could have also been observed at a closer range or in daylight;

2.4 Smaller Fences and Taller Officers - small fences, over which anyone can readily observe yard areas, have been held to show that there is no reasonable expectation of privacy; similarly, if an officer can plainly see over a fence due to his height, the observation would violate no privacy interest.

III.  CONCLUSIONS

The conflict in these cases appears to stem from how "plain" the view really is. It appears from these decisions that you can be sure that you have a valid search if you are in an area a person might reasonably be expected to occupy, for example: a nearby hill, giving you a high vantage point; or a neighboring home's upstairs balcony or window; or a helicopter, etc.

It is less clear how the courts would respond if the officer creates an artificial viewpoint, such as standing on a box or a car — some courts find this perfectly acceptable, reasoning that the officer is in a spot in which he has a right to be.3 Others instead focus not on where the officer is, but what he must do to get the clear view.4

Thus, while some judges would permit looking over a fence from any lawful point, others would not — and we cannot speculate as to how each reviewing court would rule.

Therefore, the safe course is to investigate fenced yards from any high point you can find in which a person would normally be expected to be,5 using binoculars (where necessary) to clarify those things you can already see. While a more aggressive approach is probably legally justifiable, following the safer course will insulate your evidence from potential challenge. Of course, in any case where you have reasonable cause to believe a violation exists, you should consult with your city attorney or prosecutor about the possibility of obtaining an inspection warrant to allow you to investigate further.


 1   Conversely, other districts uphold the "knothole" view. Some use the distance of viewing and the size of the hole, asking: must the officer put his eye right up to the hole, or can he plainly see the contraband in the yard through a larger gaping hole. Courts are similarly split on the issue of gaps in window curtains which provide a view into the residence — this has been upheld on several occasions.   Back to Text  2   *Note: it is upon this court decision that many have traditionally based an "aggressive" approach to investigating fenced yard areas.   Back to Text  3   For example, one court held that the mere fact that an officer stepped onto a cement block to look into the defendant's yard does not affect his right to be where he was [citing People v. Colvin, 19 Cal. App. 3d 14, 96]. Another court reasoned that although looking over a fence or "peering through a window or a crack in the door ... is not, in the abstract, genteel behavior... the Fourth Amendment does not protect against all conduct unworthy of a good neighbor." [People v. Berutko, 71 Cal. 2d 77, 93] The Berutko court also stated: "When a person by his own action or neglect allows visual access to his residence by providing an aperture [fire escape] adjacent to a common area, he may not complain that police officers who were lawfully present in that area have utilized that aperture to detect the commission of a crime within."   Back to Text  4   Examples: stooping or crouching to see into a lower window? [Upheld]; Climbing a six-foot fence and viewing a yard while perched atop the fence? [Evidence gathered was inadmissible]; Wedging into a very narrow space, covered in vegetation, to observe the inside of a residence? [Evidence gathered was inadmissible].   Back to Text  5   a house, a hill, a helicopter are the obvious choices, but what about a diving board, or a pool slide?   Back to Text

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