STATE OF FLORIDA, PETITIONER V. FRANK J. BRADY, ET AL.
   No. 81-1636
   In the Supreme Court of the United States
   October Term, 1982
   On Writ of Certiorari to the Supreme Court of Florida
   Brief for the United States as Amicus Curiae in Support of
Petitioner
            TABLE OF CONTENTS
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      I. In the absence of substantial measures to
         exclude the public, there is no reasonable
         expectation of privacy in a field that invokes
         the protection of the Fourth Amendment
         A. The open fields doctrine retains its
            vitality today
         B. The open fields doctrine is not
            restricted to fields that are unfenced and
            unposted
         C. Even when a landowner takes
            substantial measures to exclude persons
            from a field, that field may reasonably
            be searched without a warrant or probable
            cause
      II. The entry onto respondent Brady's
          field did not violate the Fourth Amendment
   Conclusion
                          QUESTION PRESENTED
   Whether the warrantless entry by police onto a fenced and posted
1800 acre field violated the Fourth Amendment.
                     INTEREST OF THE UNITED STATES
   This case presents an important question under the Fourth Amendment
concerning the scope of the "open fields" doctrine first enunciated in
Hester v. United States, 265 U.S. 57 (1924).  Although this is a state
prosecution, the circumstances under which police may enter onto a
field without a search warrant is a question that arises frequently in
federal cases.  Accordingly, the United States has a direct and
significant interest in the standard applicable to such cases.
                               STATEMENT
   1. On April 21, 1978, Florida law enforcement agents received
information that an aircraft loaded with illegal drugs would be
landing on an airstrip located on a cattle ranch belonging to
respondent Frank Brady (Pet. App. A2;  J.A. 37-38, 53-54).  The
airstrip was in the middle of the property, an 1800 acre field fenced
with barbed wire and posted with no trespassing and no hunting signs.
The only structures on the Brady property were a house trailer and
some type of barn.  The trailer was located approximately two thousand
feet away from the end of the airstrip (J.A. 28-33).  Police
surveillance was set up just outside the property that night, but no
planes were observed landing (Pet. App. A2-A3;  J.A. 39-40, 54-55).
   On April 22, the police received a more specific tip indicating
that a plane would land on the Brady ranch at about dusk that evening,
using a particular radio frequency to trigger the runway lights (Pet.
App. A3;  J.A. 40).  Three surveillance teams stationed themselves on
or around the Brady property.  In order to position themselves near
the airstrip, one team of officers entered the field by cutting a
chain lock on one of the gates and another team climbed over the
barbed wire fence (Pet. App. A3;  J.A. 41-42, 48-50, 55).  After the
plane landed, the officers ascertained that bales of marijuana
apparently were being unloaded (J.A. 43-44, 50-53, 56).  They then
converged on the plane and arrested the respondents.  /1/
   2. Respondents Brady, Eckard, and Elliot were charged with delivery
and possession of marijuana in excess of 100 pounds, conspiracy to
possess marijuana in excess of 100 pounds, and importation of
marijuana.  Respondents List and Manuel were charged with attempted
possession of marijuana in excess of 100 pounds (Pet. App. A2).  Prior
to trail, the trial judge granted a motion to suppress the seized
evidence because no search warrant had been obtained (J.A. 58-61).
The Florida District Court of Appeal, Fourth District, affirmed (Pet.
App. A29-A45).
   The Florida Supreme Court also affirmed the suppression order (Pet.
App. A1-A27).  The court rejected the State's argument that, under the
"open fields" doctrine of Hester v. United States, 265 U.S. 57 (1924),
the warrantless entry onto Brady's land did not violate the Fourth
Amendment.  The court recognized that Hester has not been overruled,
but it held that under the analysis of Katz v. United States, 389 U.S.
347 (1967), "if the owner or occupier of a field seeks to keep it
private and demonstrates an actual intention to do so, and his
expectation is one that society is willing to recognize as reasonable,
then Fourth Amendment protections extend to activities in that field"
(Pet. App. A9;  emphasis in original).  Because the property was
fenced and posted, the court first concluded that respondent Brady had
manifested an expectation of privacy in his field (id. at A13).
Second, while acknowledging that activity conducted in an open field
does not ordinarily warrant a significant expectation of privacy, the
court held that under the facts of this case and "in light of the size
of the property and the precautions taken by respondent (Brady)," an
expectation of privacy was reasonable (id. at A17).  See also id. at
A22-A23.  Justice McDonald dissented (id. at A25-A27), finding that
the Brady "property, although fenced, is essentially an open field"
(id. at A26) and hence that, under the Katz analysis, respondents
could have no reasonable expectation of privacy there.  /2/
                          SUMMARY OF ARGUMENT
                                  I.
   A. In Hester v. United States, 265 U.S. 57, 59 (1924), this Court
held that "the special protection accorded by the Fourth Amendment to
the people in their 'persons, houses, papers, and effects,' is not
extended to the open fields." This rule was not undermined by this
Court's decision in Katz v. United States, 389 U.S. 347 (1967), which
held that warrantless wiretapping of a public telephone violated an
individual's legitimate expectation of privacy.  To the contrary, this
Court cited Hester with approval in Katz itself and has done so in
subsequent decisions.  This is because the property interest that a
landowner has in his field is not equivalent to a privacy interest
that gives rise to Fourth Amendment protection.  Apart from the
curtilage surrounding a residence, an individual does not have an
expectation of privacy that society is prepared to recognize as
"reasonable" in an open field.
   B. Posting and fencing an open field does not necessarily alter its
character so as to create a protected Fourth Amendment privacy
interest in the field.  While posting a field puts an outsider on
notice that he is about to commit a trespass, the facts of Hester make
clear that the "open fields" doctrine is based on the lack of privacy
expectation in the field and does not depend on whether or not the
police officer is aware that he is trespassing.  The posting of "No
Trespass" signs, as a practical matter, gives a landowner little
assurance that outsiders will not enter his property;  indeed, state
statutes typically give law enforcement officials, such as game
wardens, specific authority to enter private posted lands to monitor
compliance with state wildlife laws.  See, e.g., Fla. Stat. Ann.
Section 372.07(1) and (2)(a) (West 1974).
   Nor does the existence of a fence surrounding an open field
necessarily increase the expectation of privacy in that field.  Fences
around large areas of rural property are usually designed to mark a
boundary or to keep animals in rather than to keep people out, and
they pose little impediment to entry by a person.  Like posting, the
existence of such a fence does not give a landowner a reasonable
assurance that outsiders will not enter onto his land.  Accordingly,
the courts generally have held that there is no protected Fourth
Amendment privacy interest in a field that is surrounded by a
nonexclusionary fence.
   C. A landowner may, however, take substantial measures to exclude
outsiders from his field, such as erecting a barrier designed to
prevent entry by other persons.  Arguably, such action would give him
a reasonable expectation of some degree of privacy in the field.  Even
so, that expectation of privacy is a limited one that does not
approach the privacy interest that an individual has in his home or
office.  Even a field surrounded by an exclusionary fence is subject
to observation from the air and thus cannot be regarded as wholly
private.  More important, if the police are mistaken in their
suspicion of criminal activity, their unjustified entry into the field
is only a minimal disruption of an individual's privacy;  the officers
will observe only what is ordinarily found in a field, such as
cornstalks and cows.  On the other hand, when police enter a home,
they intrude into the area that people reserve for their most personal
and private matters.
   Because of the magnitude of the privacy invasion involved in a
search of a home, this Court has concluded that the Fourth Amendment
establishes two prerequisites to sustain the reasonableness of such a
search:  (1) the substantive standard for balancing societal law
enforcement interests against individual privacy interests is probable
cause;  (2) as a procedural protection to minimize the risk of a
mistake, probable cause is to be determined by a neutral and detached
magistrate.  In the case of an entry onto a field, where the privacy
intrusion is so much smaller, it is reasonable that the prerequisites
to such an entry be more relaxed, as the Court has recognized in other
contexts where there is a substantially reduced privacy intrusion.
For example, the warrant requirement does not apply to a search of an
automobile, which is an area of reduced privacy expectation.  See
United States v. Chadwick, 433 U.S. 1, 12 (1977).  And police may
effect brief investigatory detentions on suspicion that does not
amount to probable cause.  See, e.g., Terry v. Ohio, 392 U.S. 1
(1968).  In a situation where police have reason to suspect that
evidence of criminal activity will be found in a field -- even one
surrounded by an exclusionary fence arguably justifying recognition of
some degree of privacy interest -- it is "reasonable" within the
meaning of the Fourth Amendment to enter the field on the basis of a
reasonable suspicion of criminal activity, given the comparatively
minor privacy intrusion entailed in the entry.
                                 II.
   Applying the foregoing analysis, the record indicates that the
entry onto respondent Brady's field did not violate the Fourth
Amendment.  While the field was fenced, outsiders continually
trespassed on the ranch and the police officers here climbed over the
fence without apparent difficulty.  Thus, the fence appears not to
have been an exclusionary one, but rather an ordinary livestock fence,
which the courts generally have recognized as not creating a
legitimate expectation of privacy in a field.  But even apart from
this, the information received by the officers gave them reasonable
suspicion that criminal activity was afoot on the Brady ranch, and it
was therefore "reasonable" under the Fourth Amendment for them to
enter to investigate their suspicion and to thwart serious criminal
activity.
                               ARGUMENT
 I. IN THE ABSENCE OF SUBSTANTIAL MEASURES TO EXCLUDE THE PUBLIC,
THERE IS NO REASONABLE EXPECTATION OF PRIVACY IN A FIELD THAT INVOKES
THE PROTECTION OF THE FOURTH AMENDMENT
        A. The Open Fields Doctrine Retains Its Vitality Today
   The "open fields" doctrine was first enunciated by this Court in
Hester v. United States, 265 U.S. 57 (1924).  In Hester, two revenue
officers entered onto the defendant's property and, from a distance of
50-100 yards from his house, saw the defendant hand another person
what appeared to be a gallon jug of illicitly distilled whiskey.  The
Court held, in a unanimous decision authored by Justice Holmes, that
the fact that the officers had trespassed on the defendant's property
was not a reason for suppressing the observations made by the
officers.  The Court explained (265 U.S. at 59):  "(T)he special
protection accorded by the Fourth Amendment to the people in their
'persons, houses, papers, and effects,' is not extended to the open
fields.  The distinction between the latter and the house is as old as
the common law."
   While the Court's opinion in Hester is conclusory, it has become
the source of a well-entrenched rule of law, viz., that the open areas
beyond the house and its "curtilage" are not within those areas
protected by the Fourth Amendment.  /3/ This rule is soundly based in
the specific language of the Fourth Amendment and its limited
proscription of only those searches and seizures that are
"unreasonable."
   The Florida Supreme Court held that this Court's decision in Katz
v. United States, 389 U.S. 347 (1967), undermined the continuing
viability of Hester.  See Pet. App. A6-A7.  But there is nothing in
Katz to suggest repudiation of the open fields doctrine.  In Katz, the
Court held that the Fourth Amendment protected against warrantless
wiretapping private conversations conducted in a public telephone
booth.  To be sure, Katz recognizes that the Fourth Amendment may
extent to an area that is not within the curtilage of a
privately-owned building, but it does so in the specific context of
electronic surveillance of a phone booth;  it certainly does not
suggest extension of Fourth Amendment protection to an area like a
field, even if an individual may prefer that his activity there remain
private.  /4/
   Indeed, both the majority opinion in Katz and Justice Harlan's
oft-cited concurring opinion, each of which was relied upon by the
Florida Supreme Court (Pet. App. A7-A9), discuss Hester approvingly.
Citing Hester, the Court noted in Katz that "(i)t appears to be common
ground * * * that an open field is not (an area protected by the
Fourth Amendment)." 389 U.S. at 351 n.8.  Justice Harlan stated that a
"telephone booth is an area where, like a home, * * * and unlike a
field (citing Hester), a person has a constitutionally protected
reasonable expectation of privacy." Id. at 360.  See also id. at 361.
Moreover, since Katz this Court has relied on Hester and consistently
cited it approvingly in other decisions.  See Air Pollution Variance
Board v. Western Alfalfa Corp., 416 U.S. 861, 865-866 (1974);  see
also Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978);  G.M. Leasing
Corp. v. United States, 429 U.S. 338, 352 (1977);  United States v.
Santana, 427 U.S. 38, 42 (1976);  Cady v. Dombrowski, 413 U.S. 433,
450 (1973);  Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 393 n.6 (1971).
   An examination of the reasoning of Katz also makes clear that it
casts no doubt on the continuing vitality of Hester.  Katz holds that
the Fourth Amendment protects areas where an individual has a
"justifiabl(e)" expectation of privacy.  389 U.S. at 353.  As the
Florida court noted (Pet. App. A8-A9), Justice Harlan's concurring
opinion suggests a two-part inquiry to determine whether an area is
protected by the Fourth Amendment (389 U.S. at 361):  whether the
individual, by his conduct, has exhibited a subjective expectation of
privacy and whether that expectation is "one that society is prepared
to recognize as 'reasonable.' " See generally Smith v. Maryland, 442
U.S. 735, 740 (1979);  Rakas v. Illinois, supra, 439 U.S. at 143-144
n.12.  The Court's holding in Hester, in terms of the Katz analysis,
is simply that society does not recognize as reasonable an expectation
of privacy in open fields, and nothing in Katz suggests that a
different rule should apply.  See, e.g., United States v. Oliver, No.
80-5437 (6th Cir. May 5, 1982) (en banc), petition for cert. pending,
No. 82-15 (filed July 2, 1982);  United States v. Freie, 545 F.2d
1217, 1223 (9th Cir. 1976), cert. denied, 430 U.S. 966 (1977);  Patler
v. Slayton, 503 F.2d 472, 478 (4th Cir. 1974);  see also S. Rep. No.
1097, 90th Cong., 2d Sess. 90 (1968), quoted in United States v. Paul,
614 F.2d 115, 119 (6th Cir.) (Phillips, J., concurring), cert. denied,
446 U.S. 941 (1980) (discussion of federal wiretapping statute noting
that expectation of privacy "clearly unjustified" in an open field).
   It is true, of course, that entry onto open fields violates the
landowner's property rights in most instances.  But Hester stands for
the proposition that a legal property interest is not necessarily
equivalent to an interest protected by the Fourth Amendment, and the
Court has consistently adhered to this view.  See generally Rakas v.
Illinois, supra, 439 U.S. at 143-144 n.12.  This principle was not
challenged in Katz;  on the contrary, it is Katz that emphasizes that
the focus of the Fourth Amendment is on legitimate privacy interests.
See 389 U.S. at 351-353.  It is also undoubtedly true that an
individual may have a strong subjective expectation of privacy in
activity he carries on in an open field, depending on the distance of
the field from areas frequented by the public.  The probability that
another person will observe his activity "in the middle of nowhere" is
small.  But an individual has an analogous expectation of privacy in
activities undertaken late at night in an apparently deserted alley or
forest;  obviously, however, he can have no constitutional objection
if a policeman stumbles upon him when he is engaged in criminal
activity.  Clearly, an expectation of privacy entitled to Fourth
Amendment protection cannot be grounded merely on the improbability of
being observed.  In sum, both before and after Katz, there is no basis
for recognizing a legitimate expectation of privacy in an open field.
/5/
 B. The Open Fields Doctrine Is Not Restricted To Fields That Are
Unfenced And Unposted
   The Florida Supreme Court conceded (Pet. App. A23) that "(a)
ctivities carried on in a truly open field, or in any area which one
knowingly exposes to the public, are not subject to Fourth Amendment
protections." The court, however, apparently held that an expectation
of privacy protected by the Fourth Amendment necessarily attaches to
any field that has been fenced or posted with "No Trespassing" signs.
But, as numerous other courts have held, these common features of
farmland or ranches do not transform a field into an area protected by
the Fourth Amendment.
   The effect of posting a field is to put an individual on notice
that he is about to trespass onto private property, and a fence
generally has the same effect.  Clearly, a police officer who enters
onto fenced and posted property has not simply committed an
unintentional trespass.  But it is evident from Hester itself that the
open fields doctrine does not apply only to unintentional trespasses.
While the opinion in Hester does not specify whether the property was
fenced or posted, one of the revenue officers himself testified that
he supposed the officers were trespassing on Hester's property.  265
U.S. at 58.  Thus, the Court found no Fourth Amendment violation in
Hester even though the officers were aware that they were trespassing.
 Hester holds that a knowing trespass onto an open field, although
perhaps violative of state law, does not violate the Fourth Amendment
because such a field is not an area in which there is a legitimate
expectation of privacy;  the posting of "No Trespassing" signs does
not alter that conclusion.
   Moreover, state statutes typically permit access by law enforcement
officers to private property under circumstances in which access to
enclosed structures would not be allowed.  For example, Florida law
permits game and fish commission officials and wildlife officers to
"enter upon any land or waters of the state for performance of their
lawful duties * * * and such entry shall not constitute a trespass"
and to "(g)o upon all premises, posted or otherwise" in order to
determine whether the state game and wildlife laws are being violated,
so long as they do not enter any buildings.  Fla. Stat. Ann. Section
372.07(1) and (2)(a) (West 1974).  This specific authorization is
illustrative of a more general recognition that in many situations a
law enforcement officer is empowered to enter upon private property in
the performance of his duties where an entry by a private party would
constitute a trespass.  See, e.g., United States v. Knight, 451 F.2d
275, 278 (5th Cir. 1971), cert. denied, 405 U.S. 965 (1972);  United
States v. Capps, 435 F.2d 637, 640 & n.4 (9th Cir. 1970).  Thus, a
landowner who posts his field can have no reasonable expectation of
complete privacy from law enforcement officers.
   By the same token, the existence of a fence around rural property
does not necessarily give rise to a greater expectation of privacy in
a field.  Ordinarily, the purpose of such a fence is to mark a
boundary or to keep farm animals within the property.  As one court
has noted, such rural fences "are designed more to keep livestock
under control than to keep people out." State v. Stanton, 490 P.2d
1274, 1279 (Or. Ct. App. 1971).  See also United States v. Williams,
581 F.2d 451, 454 (5th Cir. 1978), cert. denied, 440 U.S. 972 (1979);
Giddens v. State, 156 Ga. App. 258, 259, 274 S.E. 2d 595, 597 (1980),
cert. denied, 450 U.S. 1026 (1981).  Rural landowners recognize that
hunters and other members of the public frequently enter private
fields (see State v. Cemper, 209 Neb. 376, 307 N.W.2d 820, 823 (1981);
 State v. Stanton, supra, 490 P.2d at 1279), and that an ordinary
livestock fence does not present much of an obstacle to entry by a
person (see Giddens v. State, supra, 156 Ga. App. at 259, 274 S.E. 2d
at 597).  /6/ Accordingly, while he may hope that persons will be
discouraged from trespassing or inadvertently wandering onto his
property, a landowner has little expectation that persons with a
strong desire to enter his field will be deterred by posting the field
or by the presence of a livestock fence surrounding the entire
property.  /7/
   Recognizing the inevitable limitations on the degree of privacy
that reasonably can be expected in an open field, the courts of
appeals, both before and after Katz, generally have declined to
suppress evidence seized in an open field, even where the property is
fenced and posted.  For example, in United States ex rel. Saiken v.
Bensinger, 546 F.2d 1292 (7th Cir. 1976), cert. denied, 431 U.S. 930
(1977), the court held that a fenced goosehouse came within the ambit
of the open fields doctrine because the goosehouse was beyond the
curtilage and the fence was for the purpose of containing the geese.
Significantly, the court dismissed out of hand the relevance of a
perimeter fence, finding that most of the 20-acre farm "was clearly
open fields" even though the entire farm was surrounded by a fence.
Id. at 1297.  In United States v. Oliver, supra, slip op. 7, the court
explained that "(t)he legal principles that protect privacy * * * do
not protect * * * the open field -- even one the owner has posted with
a 'no trespass' sign." See also United States v. Williams, supra;
McDowell v. United States, 383 F.2d 599 (8th Cir. 1967);  Care v.
United States, 231 F.2d 22 (10th Cir.), cert. denied, 351 U.S. 932
(1956);  Janney v. United States, 206 F.2d 601 (4th Cir. 1953);  Stark
v. United States, 44 F.2d 946 (8th Cir. 1930);  but see United States
v. Dunn, 674 F.2d 1093, 1100 (5th Cir. 1982) (fenced-in barn held
within curtilage).  /8/
   By the same token, several state court decisions have recognized
the applicability of the open fields doctrine despite posting or the
existence of a fence.  See Luman v. State, 629 P.2d 1275 (Okla. 1981)
(barbed wire fence);  State v. Cemper, supra (entry though open gate
in barbed wire fence);  Giddens v. State, supra (barbed wire fence);
People v. Lashmett, 71 Ill. App. 3d 429, 389 N.E. 2d 888 (1979), cert.
denied, 444 U.S. 1081 (1980) (officers climbed over two fences);  Ford
v. State, 264 Ark. 141, 142, 569 S.W.2d 105, 106 (1978), cert. denied,
441 U.S. 947 (1979) (posted and fenced field with locked gate);  State
v. Wren, 115 Ariz, 257, 564 P.2d 946 (Ct. App. 1977) (barbed wire
fence);  Commonwealth v. Janek, 242 Pa. Super. Ct. 340, 363 A.2d 1299
(1976) (field posted and surrounded by embankments and barbed wire
fences);  State v. Stanton, supra ("a couple" of livestock fences);
Casey v. State, 87 Nev. 413, 488 P.2d 546 (1971) (fenced ranch);
contra, State v. Byers, 359 So.2d 84 (La. 1978) (marijuana field held
not "open" because posted and road chained).  These decisions rest
simply on the notion that posting a field or the existence of a
nonexclusionary perimeter fence does not sufficiently change the
nature of a person's expectation of privacy in an open field that it
is reasonable to attach a constitutionally protected privacy right to
items present or activities carried on in that field.  /9/
 C. Even When A Landowner Takes Substantial Measures To Exclude
Persons From A Field, That Field May Reasonably Be Searched Without A
Warrant Or Probable Cause
   The foregoing discussion is not meant to suggest that there are no
circumstances in which an open field can be converted into an area
subject to Fourth Amendment protections.  Obviously, houses and other
buildings stand on what once was an open field.  When a landowner
takes substantial measures to exclude the public, such as construction
of an exclusionary fence, as opposed to the insubstantial livestock
fence that usually surrounds a field, it is at least arguable that he
has a limited expectation of privacy in the enclosed area.  Thus, for
example, in United States v. FMC Corp., 428 F. Supp. 615 (W.D.N.Y.
1977), aff'd, 572 F.2d 902 (2d Cir. 1978), where the landowner
surrounded a lagoon with an eight-foot high fence topped with barbed
wire, the court concluded that he had a legitimate expectation of
privacy of that lagoon.
   The correctness of this view is debatable.  Even when surrounded by
an exclusionary fence, a field is still a field -- and unmistakably
remains not a person, house, paper, or effect.  But even assuming that
the fencing of a field at some point creates a constitutionally
protected privacy interest that requires official intrusion to be
reasonably justified, it does not follow that the field should be
given the same constitutional protection as a home.  That is, a search
of such a field can be reasonable within the meaning of the Fourth
Amendment even if not conducted pursuant to a warrant or based on
probable cause.  Because the privacy interest in a field, even if
measures have been taken to exclude outsiders, does not approach the
privacy interest in a home, a search of that field is a significantly
lesser intrusion than a search of the home and correspondingly
requires a lesser degree of justification.
   First, even a field surrounded by an exclusionary fence is subject
to observation from the air and thus cannot be regarded as wholly
private.  /10/ Because the manner of observation is ordinarily of no
consequence to the landowner, he has a limited legitimate expectation
of preserving the privacy of things observable from the air.  See
United States v. Oliver, supra, slip op. 6 n.4.  More important, the
intrusion on the landowner's privacy when police enter a field is not
even remotely comparable to the intrusion that is involved when police
enter a home or business premises or search through private papers.
In the case of a search of a private residence, if the police are
mistaken in their suspicion of criminal activity, they unnecessarily
disrupt the area tha people reserve for their most personal and
private matters.  The exposure of these matters to outsiders is a most
severe intrusion into the privacy of the innocent individual.  In
order to safeguard these important privacy interests against
unjustified invasion, the Fourth Amendment interposes two requirements
before a home or office can be searched:  the substantive requirement
that the police have probable cause to believe that evidence of
criminal activity will be found and the procedural requirement that
this determination be made by a neutral and detached magistrate.
   If the police err in invading an open field, however, the
consequences are much less severe.  The entry is a minimal disruption
of an individual's privacy.  Exposure to the police of the contents of
an open field is relatively unintrusive.  In most cases, the
consequence is simply that the police observe nothing but a field and
perhaps some cornstalks or cows;  an individual is highly unlikely to
keep in an open field personal effects that he wishes to keep private.
 Because the invasion of privacy resulting from an erroneous search is
substantially smaller in the case of a field than in the case of a
residence, an office, or even an automobile, it is reasonable that the
Fourth Amendment standard that must be satisfied before a search may
occur be less severe.
   Suppose, for instance, that the police receive an anonymous tip
that the body of a missing person is buried in the corner of a fenced
wheat field or that a cache of automatic weapons is hidden in the
woods inside a large, fenced farm.  The tip affords a reasonable
suspicion of unlawful activity but is insufficiently substantiated to
provide probable cause, without which no warrant can be obtained.
While the police could not rely on information of this quality to
search a house, reason dictates that the information affords a
sufficient basis to undertake a search implicating the comparatively
inconsequential privacy interests in a field or woods.  Accordingly, a
rational balancing of societal and individual interests in this
circumstance calls for allowing a search upon a justification that,
while concrete and objectively verifiable, is less substantial than is
needed to justify invasion of more private areas.
   This Court has recognized in other contexts that the two basic
constitutional prerequisites to a search of a residence do not
necessarily apply where there is a substantially reduced privacy
intrusion.  For example, a search of an automobile is a significantly
lesser intrusion than a search of a residence.  As the Court explained
in United States v. Chadwick, 433 U.S. 1, 12 (1977), quoting Cardwell
v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion):
      One has a lesser expectation of privacy in a motor vehicle
      because its function is transportation and it seldom serves as
      one's residence or as the repository of personal effects * * *.
      It travels public thoroughfares where both its occupants and its
      contents are in plain view.
As a result, the warrant requirement is thought to be unnecessary to
protect adequately the owner's privacy interests in the vehicle's
interior.  See also Arkansas v. Sanders, 442 U.S. 753, 761 (1979);
Rakas v. Illinois, supra, 439 U.S. at 153-155 (Powell, J.,
concurring);  South Dakota v. Opperman, 428 U.S. 364, 368 (1976).
Even so, it is clear that the likelihood that personal effects will be
found in a car (perhaps while in transit to or from a residence) /11/
is substantially greater than the likelihood that such personal
effects will be found in an open field.  /12/
   Similarly, seizures that are a minimal intrusion compared to an
arrest may be effected on less than probable cause.  See, e.g., United
States v. Cortez, 449 U.S. 411 (1981);  United States v.
Brignoni-Ponce, 422 U.S. 873 (1975);  Terry v. Ohio, 392 U.S. 1
(1968).  And in the context of administrative searches, where there is
generally a reduced expectation of privacy (see Donovan v. Dewey, 452
U.S. 594, 598-599 (1981)), a search satisfies the "reasonableness"
requirement of the Fourth Amendment despite absence of probable cause
to believe that a violation will be found, even where a residence is
involved.  See Marshall v. Barlow's Inc., 436 U.S. 307, 320-321
(1978);  Camara v. Municipal Court, 387 U.S. 523, 538 (1967).
   Given the extremely limited nature of the privacy intrusion
involved in the search of a field, it is appropriate that such
searches not be constrained by the strictest level of Fourth Amendment
protection.  There will be situations where the police receive
information not amounting to probable cause that there is evidence of
criminal activity in a field, such as a marijuana crop, but it would
be difficult or impossible to investigate this suspicion further
without entry onto the field.  In light of the minimal adverse
consequences that would occur from an entry if the information turns
out to be erroneous, it is "reasonable" within the meaning of the
Fourth Amendment, even if a field is surrounded by an exclusionary
fence, to permit police to enter onto it on the basis of reasonable
suspicion of criminal activity, rather than being forced to ignore the
information they have received.  See United States v. Johnson, 561
F.2d 832, 852-853 (D.C. Cir.) (MacKinnon, J., concurring), cert.
denied, 432 U.S. 907 (1977);  United States v. Knight, supra, 451 F.2d
at 278.  /13/
 II. THE ENTRY ONTO RESPONDENT BRADY'S FIELD DID NOT VIOLATE THE
FOURTH AMENDMENT
   Under the foregoing analysis, the applicability of Fourth Amendment
constraints to a search of a field (if they are applicable at all)
depends upon the measures taken by the landowner to safeguard his
property.  For example, in United States v. Oliver, supra, where the
landowner did not restrict in any way access on foot to his property,
the fact that he posted a "No Trespassing" sign plainly did not
increase his expectation of privacy in his fields to the extent that
the "open fields" doctrine should no longer apply.  On the other hand,
in United States v. FMC Corp., supra, the construction of an
exclusionary fence topped with barbed wire arguably gave rise to a
reasonable expectation of privacy.
   The facts set forth in the record indicate that this case falls
somewhere between these two extremes.  On the one hand, one of the
surveillance teams actually cut the lock on a gate in order to gain
access to respondent's property.  While this destruction of property
is not in itself a Fourth Amendment violation, /14/ the fact that an
individual has taken measures that effectively prevent access to his
field without the destruction of property is certainly probative of
the degree of privacy that he is entitled to expect.  In this case,
however, it was not necessary to break the lock on the gate in order
to enter the ranch;  another surveillance team entered simply by
climbing over the fence (J.A. 50, 55).  Thus, respondent had not taken
measures that would prevent outsiders from entering his farm except by
breaking a lock;  his legitimate expectation of privacy -- assuming
arguendo that some could be had in farm fields -- must be measured by
the easiest means of access to his ranch.  See United States v.
Oliver, supra, slip op. 6 n.4.
   The record states that the fence surrounding the Brady ranch was a
"barbed-wire fence" (J.A. 33).  That statement could describe an
exclusionary fence or an ordinary perimeter livestock fence, which is
typically made of barbed wire and does not present much of an obstacle
to a person.  See, e.g., State v. Stanton, supra, Giddens v. State,
supra.  The record indicates that, as would be expected of a fence
surrounding a cattle ranch, the fence here was of the latter
character, rather than designed to exclude outsiders.  First, two of
the police officers entered the field by climbing over the fence,
apparently without much difficulty (see J.A. 50, 55).  /15/ More
significantly, respondent Brady himself testified that he had constant
trouble with trespassers on his property -- cattle rustlers, poachers,
and people who stole tires and batteries from vehicles on his property
(R. 15-16).  /16/ Thus, it does not appear that respondent Brady took
such measures to exclude the public from his open field as might
warrant recognition of a constitutionally protected expectation of
privacy in that field.
   In any event, even if the fence surrounding the ranch here was
sufficient to create a reasonable expectation of privacy, the police
entry was justified by information that gave them reason to suspect
criminal activity.  /17/ They received information on two occasions
that one or two planes carrying contraband would be landing at a
location that the police deduced was the Brady ranch, and the
information was somewhat detailed, specifying the radio frequency that
would be used to turn on the runway lights and the call numbers of the
planes.  See Pet. App. A2-A3;  J.A. 34-40.  The State informs us that
the source of that information was wiretaps (see Pet. Br. 57) /18/ and
thus more reliable than an anonymous tip.  While the information
apparently did not specify the Brady property and thus probably fell
short of probable cause, it appears to have given the police a
substantial basis for suspicion, sufficient to warrant the limited
privacy intrusion of entering onto the field.  /19/
                              CONCLUSION
   The judgment of the Supreme Court of Florida should be reversed.
   Respectfully submitted.
   REX E. LEE
      Solicitor General
   D. LOWELL JENSEN
      Assistant Attorney General
   ANDRES L. FREY
      Deputy Solicitor General
   ALAN I. HOROWITZ
      Assistant to the Solicitor General
   KATHLEEN A. FELTON
      Attorney
   AUGUST 1982
   /1/ The officers did not at any time approach the trailer or barn
(J.A. 32-33, 46, 53).
   /2/ We note that although respondent Brady, the owner of the
property, clearly was entitled to challenge the entry onto his own
land as violative of the Fourth Amendment, there is no showing that
the other four respondents had any connection with the property
sufficient to support a Fourth Amendment claim.  See Rakas v.
Illinois, 439 U.S. 128 (1978).  Because the "standing" question has
not been raised in this case, however, it appears that the merits of
the Fourth Amendment claim are before the Court even though the State
has dismissed the charges against Brady.  See Br. in Opp. 16.
   /3/ The curtilage is an area surrounding the house that is
habitually used for family purposes.  See Black's Law Dictionary 346
(5th ed. 1979).  The common law recognized that the curtilage was not
to be treated as a part of the house for some purposes (see 4 W.
Blackstone, Commentaries ch. 16, at 225 (Univ. of Chicago Press ed.
1979)), and the Court in Hester cited to this common law rule.  265
U.S. at 59.  Accordingly, it has been recognized that the open fields
doctrine does not extend to the curtilage.  See, e.g., United States
v. Van Dyke, 643 F.2d 992, 993 (4th Cir. 1981);  United States v.
Williams, 581 F.2d 451, 453 (5th Cir. 1978), cert. denied, 440 U.S.
972 (1979);  United States ex rel. Saiken v. Bensinger, 546 F.2d 1292,
1295-1297 (7th Cir. 1976), cert. denied, 431 U.S. 930 (1977);  Care v.
United States, 231 F.2d 22, 25 (10th Cir.), cert. denied, 351 U.S. 932
(1956).
   /4/ The Court in Katz noted that the issue involved there, because
of significant scientific advances in the area of electronic
surveillance and "the vital role that the public telephone has come to
play in private communication," was one that could not specifically
have been contemplated by the Framers or even by the Court in earlier
years.  See 389 U.S. at 352;  id. at 362 (Harlan, J., concurring).  No
comparable technological advance provides any basis for affording a
greater degree of Fourth Amendment protection to a field today than at
the time Hester was cediced or when the Fourth Amendment protection of
"persons, houses, papers, and effects" was first enacted.  See United
States v. Oliver, No. 80-5437 (6th Cir. May 5, 1982) (en banc),
petition for cert. pending, No. 82-15 (filed July 2, 1982), slip op.
4.
   /5/ The conclusion that the Fourth Amendment is not violated when
police trespass onto an open field does not suggest that a landowner
is powerless to prevent such a trespass.  As a practical matter, law
enforcement officers likely will enter onto private property only if
they have good reason to suspect that criminal activity is afoot.  If,
however, a landowner is being harassed by unjustified police entry
onto his property, he can seek damages or an injunction prohibiting
the police from further trespass, in accordance with remedies supplied
by state law.
   /6/ Indeed, in at least two of the reported cases concerning the
applicability of the open fields doctrine to a fenced field, law
enforcement officers entered the field after the criminal activity was
reported to them by members of the public who were trespassing on the
property.  See State v. Stanton, supra (two teenagers);  State v.
Byers, 359 So.2d 84 (La. 1978) (hunter).
   /7/ A fence, depending on its nature, may designate a particular
area of a farm as more private, and a fence closely surrounding a
residence may be an important factor in defining the curtilage.  See,
e.g., United States v. Van Dyke, supra, 643 F.2d at 994;  United
States v. Williams, supra, 581 F.2d at 454.  But a boundary fence that
surrounds a large farm does not convert all the open areas on the farm
into areas protected by the Fourth Amendment.
   /8/ Numerous other decisions, not involving fields described as
fenced or posted, also recognize the continuing vitality of the Hester
open fields doctrine after Katz.  See, e.g., Patterson v. National
Transportation Safety Board, 638 F.2d 144 (10th Cir. 1980);  United
States v. Ramapuram, 632 F.2d 1149, 1155 (4th Cir. 1980), cert.
denied, 450 U.S. 1030 (1981);  United States v. Basile, 569 F.2d 1053
(9th Cir. 1978);  United States v. Freie, supra;  Patler v. Slayton,
supra;  United States v. Brown, 487 F.2d 208, 210 (4th Cir. 1973),
cert. denied, 416 U.S. 909 (1974).
   /9/ Of course, there are areas outside the home that are
sufficiently private to warrant Fourth Amendment protection.  Thus,
the courts have invalidated searches of enclosed structures or open
areas that are part of the curtilage.  See, e.g., United States v. Van
Dyke, supra;  United States v. Holmes, 521 F.2d 859 (5th Cir. 1975);
Wattenburg v. United States, 388 F.2d 853, 857-858 (9th Cir. 1968).
   /10/ Aerial observation consistently has been held not to invade an
expectation of privacy recognized under the Fourth Amendment.  See,
e.g., United States v. Allen, 633 F.2d 1282, 1289-1290 (9th Cir.
1980), cert. denied, No. 80-2125 (Oct. 5, 1981);  United States v.
Mullinex, 508 F. Supp. 512, 514-515 (E.D. Ky. 1980);  United States v.
DeBacker, 493 F. Supp. 1078, 1081 (W.D. Mich. 1980);  People v.
Lashmett, supra, 71 Ill. App. 3d at 431, 389 N.E.2d at 890;  State v.
Stachler, 58 Hawaii 412, 418-419, 570 P.2d 1323, 1327-1328 (1977);
Dean v. Superior Court, 35 Cal. App. 3d 112, 117-118, 110 Cal. Rptr.
585, 589-590 (1973);  but see People v. Sneed, 32 Cal. App. 3d 535,
542-543, 108 Cal. Rptr. 146, 150-151 (1973).
   /11/ Even if the personal effects are stored in the automobile in a
container that indicates that it contains personal effects, they may
be exposed by a warrantless search.  See United States v. Ross, No.
80-2209 (June 1, 1982).
   /12/ Reduced expectations of privacy also justify warrantless
administrative searches of pervasively regulated businesses.  See
Donovan v. Dewey, 452 U.S. 594, 598-602 (1981);  United States v.
Biswell, 406 U.S. 311, 316 (1972).
   /13/ Several courts have suggested that certain police
investigative techniques that are more in the nature of searches than
seizures implicate the protections of the Fourth Amendment, yet may be
conducted based on a level of suspicion less than probable cause.  See
United States v. Beale, 674 F.2d 1327, 1334-1335 (9th Cir. 1982),
petition for rehearing pending, No. 80-1652 (dog sniff);  United
States v. Michael, 645 F.2d 252, 258 (5th Cir. 1981) (en banc), cert.
denied, No. 81-112 (Oct. 19, 1981) (beeper installation);  United
States v. Allen, supra, 633 F.2d at 1290 (helicopter surveillance);
United States v. Curtis, 562 F.2d 1153, 1156 (9th Cir. 1977) (beeper
installation);  United States v. Johnson, 413 F.2d 1396, 1399-1400
(5th Cir. 1969), aff'd en banc, 431 F.2d 441 (1970) (inspection of
automobile vehicle identification number).  As explained in our
petition in United States v. Knotts, cert. granted, No. 81-1802 (June
21, 1982), it is the government's view that installation of a beeper
does not implicate any protected Fourth Amendment interest.
Similarly, we do not necessarily agree that the other investigative
techniques listed above implicate any constitutional protection.
Nevertheless, we believe those courts have utilized a sound analytic
framework in acknowledging that certain classes of searches, although
subject to the Fourth Amendment, are reasonably justified when the
police possess reasonable suspicion of criminal activity short of
probable cause, but would be unreasonable if conducted on a random or
suspicionless basis.
   /14/ The fact that the destruction of property that resulted from
the entry does not violate the Fourth Amendment does not leave the
property owner defenseless against such conduct.  Presumably, he can
bring a suit for damages to recover for any unjustified damage.  See
Conrad v. State, 63 Wis. 2d 616, 633 n.1, 218 N.W. 2d 252, 261 n.1
(1974).
   /15/ With proper equipment, of course, almost any fence can be
"climbed over." A landowner who constructed a high wall to exclude
outsiders would have a reasonable expectation of privacy even if
police could use special ladders to scale the wall without damaging
any property.  But a fence that can be stepped over or easily climbed
over without equipment, such as the ordinary livestock fence, cannot
be considered an exclusionary fence giving rise to a legitimate
expectation of privacy.
   /16/ "R." refers to the record on appeal in the Florida Fourth
District Court of Appeal, No. 78-2121.
   /17/ It is noteworthy that the privacy intrusion here was even
smaller than that which occurred in Hester.  In Hester, the revenue
officers entered onto the open field so as to be in position to
observe activities occurring on the curtilage.  Here, by contrast, the
officers did not approach the residence or curtilage and could not
observe anything that was not in the field itself.
   /18/ Because the record has not yet been lodged with this Court, we
have not been able to verify this information independently.
   /19/ We emphasize again that, had the suspicions entertained by the
police been unfounded, their activities would have produced a quet
evening under the stars, but no likely exposure to any private effects
of respondent Brady.