United States Court of Appeals

For the Eighth Circuit

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No. 12-3092

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Richard Westmoreland Mathias

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Southern District of Iowa - Davenport

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 Submitted: April 11, 2013

 Filed: July 31, 2013

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Before MURPHY, BEAM, and BYE, Circuit Judges.

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BYE, Circuit Judge. 

Richard Westmoreland Mathias wasindicted with one count of conspiracy to

manufacture marijuana in violation of 21 U.S.C. §§ 841(b)(1)(B), 846. He pleaded

guilty, conditioned on his right to challenge the district court’s denial of his motion

1

The Honorable James E. Gritzner, Chief Judge, United States District Court

1

for the Southern District of Iowa.
to suppress evidence arising from Mount Pleasant, Iowa, Police Officer Lyle

Murray’s observation of marijuana plants growing in Mathias’s back yard. Mathias

now appeals. We affirm.

I

On May 10, 2011, Officer Murray received information from an anonymous

source that someone was growing marijuana plants in a back yard on the 300 block

of South Jefferson Street in Mount Pleasant. Officer Murray’s investigation led him

to conclude the source had been referring to the only completely enclosed back yard

on the block, which was associated with a house in which Mathias and his wife lived.2

Mathias’s back yard was enclosed by a tall fence constructed of upright

wooden slats spaced approximately a quarter-inch apart. After Officer Murray’s

initial attempts to view the enclosed area were unsuccessful, he contacted a neighbor

living on the adjacent property to the north of Mathias’s residence. Officer Murray

obtained the neighbor’s permission to walk along the neighbor’s southern property

line. Officer Murray was, however, unaware Mathias’s fence was set approximately

eighteen inches south of the property line. As a result, when walking along the north

side of the fence, Officer Murray was actually physically trespassing along an

eighteen-inch strip of grass and weeds on Mathias’s property.

While on the strip, Officer Murray came within an inch of the fence and,

without manipulating it, looked through the gaps in the fence into the back yard.

There, he saw a number of potted, sprouting marijuana plants. Officer Murray then

applied for and received a search warrant for Mathias, Mathias’s wife, and their

In resolving the motion, the district court assumed the land was, asrepresented

2

by Mathias, actually owned by Mathias’s mother-in-law. Because Mathias resided

in the house on the property, for ease of reference we refer to the land in question as

belonging to Mathias.

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residence. Upon execution of the warrant, police seized 277 marijuana plants, scales,

packaging material, $1,400.00 in currency, and dried marijuana.

A federal grand jury indicted Mathias with one count of conspiring to

manufacture marijuana. Mathias moved the court to suppress evidence arising from

Officer Murray’s observations, arguing the trespass and observation of the back yard

had violated the Fourth Amendment. The district court denied the motion, in 3

pertinent part concluding the eighteen-inch strip of land was an open field for the

purposes of the Fourth Amendment and Officer Murray’s actions while on the strip

had not violated the Fourth Amendment. Mathias then pleaded guilty pursuant to a

plea agreement, conditioned on his right to appeal the denial of the motion to

suppress.4

II

On appeal, Mathias argues the district court erred when it denied his motion

to suppress. On review of a denial of a motion to suppress, we assessfindings of fact

for clear error and whether challenged actions violated the Fourth Amendment de

novo. United States v. Inman, 558 F.3d 742, 745 (8th Cir. 2009).

Mathias contends Officer Murray violated his rights under the Fourth

Amendment, arguing (1) the strip of land from which Officer Murray observed his

Mathias also moved to suppress the search warrant as unsupported by probable 3

cause. The district court also denied that portion of the motion. Mathias does not

challenge the probable cause ruling on appeal.

Mathias also filed an unsuccessful motion to reconsider. Although Mathias 4

initially indicated he also intended to appeal the denial of his motion to reconsider,

he failed to preserve the denial for appeal by not listing it as an issue or presenting

any argument about it. See Hays v. Hoffman, 325 F.3d 982, 986 n.2 (8th Cir. 2003)

(citing Fed.R.App.P. 28(a)(5)).

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back yard was curtilage; and (2) Officer Murray’s actions while on the strip

constituted an unlawful search.

A

Mathiasfirst contendsthe strip ofland on which Officer Murray trespassed was

curtilage and argues he had a reasonable expectation of privacy in the strip. The

government urges us to review the district court’s curtilage determination de novo. 

Although we acknowledge other circuits which have considered the standard of

review after the Supreme Court issued Ornelas v. United States, 517 U.S. 690 (1996),

apply de novo review, Eighth Circuit precedent requires us to review curtilage

determinationsfor clear error. United States v. Wells, 648 F.3d 671, 676-77 (8th Cir.

2011) (citations omitted). Ultimately, however, the standard of review is immaterial

to this issue because we would conclude under either standard that the strip of land

constitutes an open field. See id.

“TheFourth Amendment protects the curtilage of an individual’s residence, but

not surrounding open fields.” United States v. Boyster, 436 F.3d 986, 991 (8th Cir.

2006) (citing Hester v. United States, 265 U.S. 57, 59 (1924)). “Curtilage is the area

to which extends the intimate activity associated with the sanctity of a man’s home

and the privacies of life, and is typically comprised of land adjoining a house, often

within some type of enclosure such as a fence.” Id. (citations and internal quotation

marks omitted). For the purposes of the Fourth Amendment, an open field may be

any “unoccupied or undeveloped area outside of the curtilage” and “need be neither

‘open’ nor a ‘field’ as those terms are used in common speech.” United States v.

Dunn, 480 U.S. 294, 304 (1987) (quoting Oliver v. United States, 466 U.S. 170, 180

n.11 (1984)).

In assessing whether a particular area is curtilage, we determine “whether the

area in question is so intimately tied to the home itself” that we should extend the

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Fourth Amendment’s protection to it. Wells, 648 F.3d at 677 (quoting Dunn, 480

U.S. at 301). We consider “factors that bear on whether an individualreasonably may

expect that the area in question should be treated as the home itself.” Dunn, 480 U.S.

at 300 (quoting Oliver, 466 U.S. at 180). These factors are “the proximity of the area

claimed to be curtilage to the home, whether the area 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 people passing by.” Id.

(citations omitted). The Supreme Court “identified the central component of this

inquiry as whether the area harbors the intimate activity associated with the sanctity

of a man’s home and the privacies of life.” Id. (citation and internal quotation marks

omitted).

The balance of the Dunn factors weighs in favor of the area being an open

field. The strip of land was close to Mathias’s home, which weighs in favor of it

being curtilage. The remaining factors, however, all weigh in favor of the strip being

an open field. The strip of land was not included within Mathias’s fence. In addition,

there is no indication Mathias or his wife put the relatively undeveloped strip to uses

associated with the sanctity of the home or privacies of life. Similarly, there is no

indication Mathias made any efforts to protect the area from observation by passersby as the strip of land remained open to view. Mathias’s only argument is that the

district court should have placed more significance on the proximity factor than the

others. He, however, advances no persuasive grounds for doing so. We are

convinced the strip constituted an open field for the purposes of the Fourth

Amendment. Accordingly, the district court did not clearly err in so concluding.

B

Mathias next contends Officer Murray’s actions while standing on the strip of

land violated the Fourth Amendment. Although Mathias focuses his arguments

primarily on Officer Murray’s actions being a trespassory search under the rationale

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of United States v. Jones, 132 S. Ct. 945 (2012), he also argues Officer Murray

violated his reasonable expectation of privacy. Appellant’s Br. 19.

1. Trespassory Search

Mathias’s contention that Officer Murray’s actions constituted a trespassory

search under Jones cannot succeed. In Jones, the Supreme Court held a physical

trespass for the purpose of gathering information constitutes a trespassory search

prohibited by the Fourth Amendment. Id. at 951-53. A Jones trespassory search,

however, requiresthe challenged intrusion to be into a constitutionally protected area

enumerated within the text of the Fourth Amendment. See id. at 953 n.8 (“Thus, our

theory is not that the Fourth Amendment is concerned with any technical trespass that

led to the gathering of evidence.• The Fourth Amendment protects against

trespassory searches only with regard to those items . . . it enumerates.”) (internal

citation and quotation marks omitted). As Officer Murray was within an open field

when he looked through Mathias’s fence, his actions did not constitute a trespassory

search. See Oliver, 466 U.S. at 176 (holding Fourth Amendment protection does not

extend to open fields).

2. Reasonable Expectation of Privacy

The Supreme Court also made clear a challenged action may violate an

individual’s Fourth Amendment rights as either a trespassory search or a violation of

a reasonable expectation of privacy. See Jones, 132 S. Ct. at 952 (“[T]he Katz

reasonable-expectation-of-privacy test has been added to, not substituted for, the

common-law trespassory test.”). The question of whether a person has a

constitutionally protected reasonable expectation of privacy in an area requires us to

ask (1) whether the individual manifested a subjective expectation of privacy in the

area; and (2) whether society is willing to recognize the expectation as reasonable. 

California v. Ciraolo, 476 U.S. 207, 211 (1986).

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It is undisputed Mathias’s backyard constituted curtilage. However, “[t]hat the

area is within the curtilage does not itself bar all police observation.” Id. at 213. 

Mathias’s contentions regarding his expectation of privacy rest on two points, Officer

Murray’s trespass and the presence of the fence enclosing the backyard. We start by

addressing the trespass.

In Dunn, the Supreme Court considered the case of two law-enforcement

officers who had trespassed onto Dunn’s land to shine flashlights into the interior of

a barn protected by a locked gate. Id. at 297-98. The Court concluded the portion of

Dunn’s land on which the agents had trespassed constituted an open field for the

purposes of the Fourth Amendment. Id. at 301. Assuming for the sake of argument

the interior of the barn was protected by the Fourth Amendment, the Court reasoned

no constitutional violation had occurred when law enforcement trespassed onto

Dunn’s land to reach their vantage point, where they merely stood and peered into the

barn. Id. at 304. The Court concluded the Constitution did not forbid the agentsfrom

making their observations from their position in the open field. Id.

The same reasoning holds here. As in Dunn, a police officer simply observed

a protected area—the backyard—from an unprotected one. Accordingly, Officer’s

Murray’s trespass was not of constitutional significance. See id. (“[T]here is no

constitutional difference between police observations conducted while in a public

place and while standing in the open fields.”); see also Oliver, 466 U.S. at 181 (“[A]n

individual has no legitimate expectation that open fields will remain free from

warrantless intrusion by government officers.”).

We turn now to the fence. The presence of the fence is sufficient to establish

that Mathias manifested a subjective expectation of privacy in the back yard. 

Accordingly, the only remaining question is whether society would recognize the

expectation as reasonable. We conclude it would not. “[T]he mere fact that an

individual has taken measures to restrict some views of his activities [does not]

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preclude an officer’s observations from a public vantage point where he has a right

to be and which renders the activities clearly visible.” Ciraolo, 476 U.S. at 213

(citing United States v. Knotts, 460 U.S. 276, 282 (1983)).

Here, Mathias’s fence had gaps (albeit small ones) between the upright slats

rendering the interior of the back yard visible to the naked eye of someone standing

on the strip who took no steps to manipulate the fence. “What a person knowingly

exposes to the public, even in his own home or office, is not a subject of Fourth

Amendment protection.”• Id. (quoting Katz v. United States, 389 U.S. 347, 351

(1967)); see also Wells, 648 F.3d at 678 (upholding the visual observation of items

in a living room through an uncovered window). Accordingly, although Mathias had

a subjective expectation of privacy in the back yard, the gaps in the fence, through

which the back yard could be seen unaided, rendered the expectation not one society

is willing to recognize as reasonable.

III

The judgment of the district court is affirmed.

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