Everyone is familiar with the idea of needing a warrant before police can search a person’s property. Portrayed on television, viewers see police officers and prosecutors arguing about whether there is enough probable cause to take to a judge for a warrant. But what are the exceptions to this Constitutional right? When can the government search your property without a warrant?
Every search warrant must be supported by probable cause and issued by an independent, unbiased judge. To reach probable cause, an officer must describe the facts and circumstances that lead a reasonable person (the police officer, a judge, a member of the public) to believe that specific criminal items are at a particular location. If a judge grants the warrant, the warrant must identify with extreme particularity which illegal items are to be searched for and where they are likely to be found. The police then execute the search warrant.
The law calls the area immediately around one’s home as “curtilage.” For purposes of protection from unreasonable government searches, a homeowner’s curtilage is afforded the same degree of protection as one’s house. Because a person’s yard is so closely connected to the privacy one expects in their own home, it is reasonable to extend those privacy rights outside. However, according to the Supreme Court, sometimes the police do not need a warrant to search the entirety of an individual’s property. One of these exceptions to a search warrant includes the Open Fields Exception. For purposes of the Open Fields Exception, the term “curtilage” does not apply to a person’s entire tract of land. Under the exception, any unoccupied or undeveloped land outside of the curtilage does not require a valid search warrant. If Defendant Jack owns 100 acres with a house, police will generally need a search warrant to search Jack’s house and the area immediately surrounding his house (a.k.a. the yard). As for the other 99 acres? No warrant needed. The reasoning follows that with so much land, no one has a reasonable expectation of privacy in the remaining 99 acres. Thus, the police can see via the naked eye or certain types of aerial photography part of Jack’s land, without a warrant. Since 1980, the Supreme Court has held that this warrant exception applies to land that is even fenced and posted. Thus, under the Open Fields Exception, the Fourth Amendment’s protections against unreasonable searches (and seizures) have been deemed not to apply in “open fields.” You may not be a ranch owner, but in any case where a search occurs you will want to make sure that law enforcement do not infringe on your constitutional rights. Whenever a situation occurs where a warrant is issued or it is a warrantless search, you should hire a knowledgeable attorney to guide you through your case, such as Lori Krasienko with Giles&Giles in Waco, TX.