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.
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,
(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
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
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.
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.
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.
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*Note: it is upon this court decision that many have traditionally based an "aggressive"
approach to investigating fenced yard areas.
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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."
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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].
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a house, a hill, a helicopter are the obvious choices, but what about a diving board, or a
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