Is Your Farm or Ranch Protected From a Warrantless Search?

Overview

The Fourth Amendment protects against illegal searches and seizures.  In general, government officials must secure a search warrant based on probable cause before searching an area unless the owner gives consent.  However, the Fourth Amendment’s protection accorded to “persons, houses, papers and effects,” does not extend to all open areas contiguous to a person’s home, but rather only to the home itself and its surrounding “curtilage” – the area immediately surrounding and associated with the defendant’s home. 

The scope and extent of curtilage is an important issue to farming and ranching operations.  Farming, hunting, recreational and other activity occurs on private land that is not located in the surrounding vicinity of the home.  Indeed, there may not even be a home on the tract.  Does that mean that government agents can conduct a warrantless search on such property?  The ability to do so has become much easier with the new technological developments. 

Warrantless searches of private agricultural land and the scope of curtilage – it’s the topic of today’s post.

In General

Curtilage is generally defined as the land immediately surrounding an individual’s home or dwelling, including any closely associated buildings and structures, but not any “open fields” or buildings or structures that contain separate activities conducted by others.  See Hester v. United States, 265 U.S. 57 (1924); Oliver v. United States, 466 U.S. 170 (1984).  For example, in United States v. Ritchie, 312 Fed. Appx. 885 (9th Cir. 2009), the court held that a trailer used occasionally as a place to sleep while performing farm chores did not constitute a “home” for purposes of establishing a Fourth Amendment protection in the curtilage of the home. 

Curtilage and Agriculture

Multi-factor test.  The extent of the curtilage is defined with reference to the proximity of it to the home.  Key factors are whether the area at issue is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by passersby.  These are known as the “Dunn factors” based on United States v. Dunn, 480 U.S. 294 (1987).  One key case applying the factors was United States v. Gilman, No. 06-00198 SOM, 2007 U.S. Dist. LEXIS 32524 (D. Haw. May 2, 2007), aff’d, sub nom., United States v. Terragna, 390 Fed. Appx. 631 (9th Cir. 2010), cert. den., Terragna v. United States, 562 U.S. 1191 (2011).  In this case, which turned the typical curtilage analysis on its head, the court held that all evidence that was seized from a shed was to be suppressed because the shed was not within the curtilage of the residence for which a search warrant had been issued.  The court reasoned that the home and shed were not enclosed by a fence or natural boundary, and there was no evidence that the shed was used for illegal activities.  In addition, the court noted that the defendant took no steps to prevent the observation of the shed from passersby.

Another instructive case applying the Dunn factors is Wilson v. Florida, 952 So. 2d 564 (Fla. Ct. App. 2007).  In that case, a warrantless search was allowed of a greenhouse that was not within the curtilage of the defendant’s home.  The greenhouse was used to manufacture controlled substances.  It was not locked and was made of semitransparent materials.  The court determined that there was no reasonable expectation of privacy with respect to the greenhouse to which the protection against an illegal search and seizure extended.

The “open fields doctrine.”  Obviously, a great deal of farming and ranching activities occurs in the “open” and the courts have held that, under the “open fields doctrine,” government officials can make warrantless searches of such areas.  Here’s a sample of some of the more prominent cases involving the doctrine:

• In United States v. Kirkwood, No. CR11-5488RBL, 2012 U.S. Dist. LEXIS 65214 (W.D. Wash. May 9, 2012), an open clearing near a rural home that separated the home and outbuildings from a wooded area functioned as curtilage. The court determined that the area was suitable for activities associated with the home and the use of the area associated with the home.
• In Westfall v. State, 10 S.W.3d 85 (Tex. Ct. App. 1999), a sheriff entered a pasture without a warrant. The sheriff seized cattle and charged the owner with cruelty to animals.  The warrantless search was challenged, but was upheld under the open fields doctrine.
• In Trimble v. State, 842 N.E.2d 798 (Ind. 2006),the court upheld a conviction for cruelty to a dog even though the police did not have a search warrant to search the defendant’s home.  While the dog house was within the curtilage of the home, the court determined that the defendant had no expectation of privacy because the dog was visible from the route any visitors to the property would be expected to use.
• In Hill v. Commonwealth, 47 Va. App. 442, 624 S.E.2d 666 (2006),the court upheld convictions for violations of the Virginia Food Act even though an administrative inspection of the defendant’s goat cheese manufacturing facility was conducted without a search warrant. The court determined that the state had a significant interest in protecting public health and that even though the facility was located within the curtilage of the defendant’s home, it was subject to search because it was functioning as commercial property.
• In United States v. Boyster, 436 F.3d 986 (8th Cir. 2006), open fields were found not to be within the curtilage of the defendant’s home. The fields were within the plain view of an aerial flyover and were 100 yards from the defendant’s residence and not enclosed by a fence and no other precautions had been taken to keep the growing marijuana from being visible by others.  Thus, the fields were not protected by the Fourth Amendment.
• In State v. Nance, 149 N.C. App. 734, 562 S.E.2d 557 (N.C. Ct. App. 2002),a warrantless search was upheld under the open fields doctrine, where the animals observed were in plain view from the nearby road. However, the court noted that the seizure of items in plain view may require a warrant absent exigent circumstances.

Recent Cases

Ohio case.  The scope of curtilage in an ag setting was at issue in State v. Powell, No. 27580, 2017 Ohio App. LEXIS 5096 (Ohio Ct. App. Nov. 22, 2017).  The defendant was charged with seven counts of cruelty to animals. A humane agent for the local Humane Society testified that she was constantly getting complaints, both from the public, next door neighbors, news and also from the County Sherriff’s Office regarding the defendant’s horse not being fed and a pig being stuck. The agent testified that she responded to the area based upon only seeing two of the three horses she knew were normally on the property. The agent also testified that she heard the pigs squealing and followed the sound of animal distress, a sound which she recognized through her experiences as a humane agent. She stated that she first observed the pigs on January 3, 2017. At this time, they were standing in “liquid mud” and she smelled “fecal and urine ammonia” coming from the pen. Fecal and urine ammonia is toxic to pigs. She further stated that pigs were at risk of hypothermia due to the cold weather. The agent spoke with the defendants concerning the condition of the pig pen and the fact that it needed to be remedied along with the pigs’ food and water. The humane agent stated that she and the defendants agreed on a timetable for these items to be remedied. The defendants stated that they would work on it through the week remedy the situation in a timely manner, and that the pigs would be provided food and water. The humane agent testified that when she returned to the property the next day, the pigs were in the same condition and the weather was getting colder. Finally, on her third trip to the property, the humane agent stated the pigs lacked food and fresh water, and that they were “actively freezing to death.” The outside temperature had fallen to six degrees, according to the humane agent. The humane agent arranged for the removal of the pigs from the property on January 7, 2017 at around 12:30 a.m.

The defendant filed a motion to suppress the evidence obtained by the humane agent as the result of an illegal warrantless search of the curtilage surrounding their home. The trial court sustained the defendant’s motion to suppress, and the state appealed. On appeal, the appellate court reversed. The appellate court noted that while curtilage is considered to be part of a defendant’s home and, as such, is entitled to Fourth Amendment protection, the agent’s testimony revealed that the home on the property was uninhabitable due to a collapsed roof and no windows. In addition, the evidence showed that the pig pen was 100 yards from the vacant home, and the pig pen was not in an enclosure surrounding the vacant home. There also was no evidence that steps had been taken to protect the area from observation from the adjacent lane, such as the erection of a privacy fence, locked gates or “No Trespassing” signs. Thus, the court concluded that the pig pen was not within the defendant’s residence or its curtilage, and that the defendant’s observation of the pigs was not a “search” for purposes of the Fourth Amendment. Accordingly, the trial court’s judgment was reversed, and the matter remanded for further proceedings. 

Tennessee case.  Another key case involving the curtilage issue and agricultural property is that of Hollingsworth v. Tennessee Wildlife Resources Agency, 423 F. Supp. 3d 521 (W.D. Tenn. 2019).  In January of 2018, the plaintiff went out before sunrise to hunt ducks on his property.  While traveling down an interior path, the lights of his pickup reflected off something attached to a tree.  He stopped and got out of his pickup and examined the reflection more closely with a flashlight.  He found a trail camera with a transmitting antenna, photo storage and SIM card attached to the tree with zip ties.  Tree limbs that might obscure the view of the camera had been removed.  He removed the camera and discovered that over one thousand photos of himself, his family and friends had been transmitted to someone for several months.  The camera’s storage card also contained photographs of two government agents – one employed by the defendant and the other one being an agent of the U.S. Fish and Wildlife Service.  They had trespassed onto the plaintiff’s property (the property was posted as “No Trespassing”) and installed the camera on a tree located on the interior of the plaintiff’s property.  The plaintiff sued alleging that the installation of the camera violated his Fourth Amendment Rights under both the U.S. and Tennessee Constitutions.  He also sued the agents for criminal and common law trespass under state law.  Both defendants moved to dismiss the case. 

The defendants claimed that they didn’t violate the plaintiff’s Fourth Amendment rights by virtue of the “open fields” doctrine and, if they did, they were entitled to qualified immunity as government agents.  The USFWS also claimed it was entitled to sovereign immunity.  The plaintiff conceded the sovereign immunity claim, but asserted that the open fields doctrine did not apply particularly because the defendants had to pass through two gates and fences to reach the interior of the plaintiff’s property.  The plaintiff analogized the zip-tying of cameras to trees as comparable to placing a tracking device to the underbody of an automobile (which is impermissible without a warrant).  The plaintiff also claimed that the Tennessee Constitution provided greater protection from a warrantless search than the Fourth Amendment. 

The trial court followed an unreported Sixth Circuit decision with facts directly on point with the current case.  Spann v. Carter, 648 F. App’x. 586 (6th Cir. 2016).  There the appellate court held that the plaintiff’s farm and hunting property constituted an “open field” and that government agents did not, as a result, violated the plaintiff’s Fourth Amendment rights by installing cameras on the property.  The trial court also cited other federal court cases holding that the use of cameras by federal and state game officials to monitor private property did not violate the constitutional rights of the property owner.  In addition, the trial court distinguished a car as a personal “effect” from a tree not near a residence.  Accordingly, the trial court granted judgment as a matter of law to the defendants.

State Constitutions/Legislation

Some state constitutions protect the privacy of open fields in the same manner as a private dwelling.  Other states have statutes that are designed with that same intent.  A new Kansas law attempts to provide greater protection to landowners from warrantless searches, but may turn out to not actually achieve its purpose.  H.B. 2299, signed into law on April 18, 2022, and effective July 1, 2022, bars any employee of the Kansas Department of Wildlife and Parks (KDWP) from conducting unauthorized “surveillance” on private property without a warrant, court order or subpoena.  Had the legislative language stopped at that point or simply state that privately-owned agricultural land is to be treated as a private dwelling, there would have been no question that ag landowners would have been secure from warrantless searches in open fields.  However, the new statute continues, “…unless [also] authorized pursuant to…the [C]onstitution of the United States…”.  The provision also does not bar surveillance of private property by a wildlife biologist when the primary purpose of the surveillance is to locate and retrieve a missing person or track wildlife movement or migration.  “Surveillance is defined as the “installation and use of electronic equipment or devices on private property, including but not limited to, the installation and use of a tracking device, video camera or audio recording device, to monitor activity or collect information related to the enforcement of laws of the state of Kansas.”

Note:  By authorizing a warrantless search if it complies with the “Constitution of the United States” the legislation arguably fails to address the “open fields” warrantless search concerns of agricultural landowners.  As noted above, the Supreme Court has construed the Fourth Amendment’s protection against warrantless searches to not apply to private land that doesn’t immediately surround the residence (even if posted “No Trespassing”).

Conclusion

Warrantless searches can be an important issue for farmers and ranchers, particularly with respect to the possibility of inadvertent violations of the criminal provisions of environmental laws.  In addition, when a landowner posts their property as “No Trespassing” to purposely exclude the public from entry and put the public on notice that a deliberate entry will expose the entrant to criminal liability, that posting should be respected, even by the government.  A “No Trespassing” warning is an express manifestation of the owner’s intent to have privacy.  If the government seeks entry into such an area, a reasonable reading of the Constitution requires the government to gather probable cause and secure a search warrant before entering.