Where Can Police Search Near my Home?

According to the Fourth Amendment, our home is afforded the most protection from unwarranted intrusion by law enforcement.  Even though the law recognizes the sanctity and privacy of the home above all other places, there are locations around the home that may not be given the same protection.

Open Fields Doctrine

The Open Fields Doctrine stands for the notion that private property may still be entered by law enforcement without implicating the Fourth Amendment.  Defined by the U.S. Supreme Court, an “open field” as any unoccupied or undeveloped area outside the home.  Even if signs are posted warning trespassers, law enforcement is not in violation of constitutional rights by ignoring them in the course of an investigation.

This is in stark contrast to an unwarranted search of a home, where the Fourth Amendment is implicated and any evidence so obtained would be considered inadmissible.  The reasoning behind the different legal treatment of a home and open land is that there is no legitimate privacy interest for activities conducted out of doors for any onlooker to see.


Curtilage is a legal term used to denote the area immediately surrounding the home.  The curtilage is offered a heightened level of privacy as an extension of the home itself.  Determining the curtilage is done on a case-by-case basis because homes and private activities conducted therein can differ.  The factors a court will look at in determining if an area is curtilage is:

1. The proximity of the area claimed as curtilage to the home

2. Whether that area is included inside of an enclosure surrounding the home

3. The nature of the use that area is put to, and

4. Any steps the resident has taken to protect that area from public view.  See U.S. v. Dunn.

Although curtilage is provided Fourth Amendment protection, surveillance of curtilage does not always trigger the Fourth Amendment.  For example, in California v. Ciraolo, a man challenged police surveillance of a marijuana grow operation in his backyard.  The man had a high fence surrounding his yard that effectively prevented public view.  He argued that his yard was thus curtilage because it was private and shielded from view and the police violated his constitutional rights by taking an unwarranted look.

The court didn’t agree and found that the surveillance didn’t violate the Fourth Amendment. The court came to this conclusion by reasoning the man did this illegal activity in the open and anyone from a high vantage point could see.  Since he did that, the man had no reasonable expectation of privacy in activities that could be seen by the naked eye from somewhere.

In cases where a search takes place beyond the curtilage, but not an open field either, the U.S. Supreme Court has determined that the Fourth Amendment is not implicated here.  For example, trash left out on the curb to be picked up is not entitled to heightened Fourth Amendment protection against police sifting through it and collecting evidence before it is picked up.  The reasoning behind this is that a person effectively negates any expectation in those items remaining private once they are put out for disposal.

The law carefully balances rights of citizens against permissible police conduct.  Criminal law is complex and ever changing.  Contact a qualified Illinois Criminal Defense Attorney for more information and sound legal advice.

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