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8"J"t*4,.,'.the subjective inteht of an individual is not conclusivewhen determining the existence of a reasonable expectation ofprivacy."i f that it would be unreasonable to expectsuch privacy, and thus, open fields donot come within the protection of thefourth amendment.The U.S. Supreme Court resolvedthe apparent conflict which existed inthe lower courts when it reviewed thefacts of Oliver and, agreeing with thecourt of appeals, determined that nosearch had occurred. The SupremeCourt's determination resulted from atwo-part analysis. First, the Court recognized that the fourth "[a]mendmentdoes not protect the merely subjectiveexpectation of privacy, but only those'expectation[s] that society is preparedto recognize as reasonable.' "18 In otherwords, for an expectation of privacy tobe reasonable, it must be an expectation that society as a whole is willing torecognize and protect. The purely subjective intent of the individual is not controlling. '9 In the second step of itsanalysis, the Court, speaking for society in general, stated that it was not willing to either recognize or protect anexpectation of privacy in an open field.In reaching this conclusion, the Courtfirst looked at the traditional "overridingrespect for the sanctity of the home"20and compared it with the; open fields asfollows:"[O]pen fields do not provide thesetting for those intimate activitiesthat the Amendment is inter.ded toshelter from governmentinterference or surveillance. Thereis no societal interest in protectingthe privacy of those activities, suchas the CUltivation of crops, thatoccur in open fields. Moreover, asa practical matter these landsusually are accessible to the publicand the police in ways that ahome, an office, or commercialstructure would not be."21On balance, the Supreme Court founl.lopen fields unworthy of protection under the fourth amendment.In practice, the Supreme Court'sCietermination that there is no reasonable expectation of privacy in openfields has effectively removed all physical entries into such areas from fourthamendment scrutiny. Law enforcementofficers can now, when the situation dictates, confidently resume the practice 22of making warrantless entries into openfields without fear of contraveningfourth amendment proscriptions. Whatmust be remembered, however, is thatthe home and the curtilage, that is thearea immediately surrounding and associated with the home,23 remain underthe protection of the fourth amendment.Consequently, any governmental entryinto the home or curtilage must complywith fourth amendment standards bybeing conducted under the authority ofa valid warrant or by falling into one ofthe recognized exceptions to the warrant requirement.Fly OversOnce the Supreme Court resolvedthe conflict over open fields, the nextissue to arise involved the use of flyovers. If a law enforcement officer couldphysically intrude into an open fieldwithout concern for the proscriptions ofthe fourth amendment, it was obviousthat he could fly over the same openfield with a similar lack of concern.However, because the curtilage areathat immediately surrounds the home isafforded protection under the amendment, the question of whether a law enforcement officer could makeobservations while flying over a curtilage remained unresolved until the Su-preme Court decided the case ofCalifornia v. Ciraolo. 24In Ciraolo, police officers, responding to an anonymous tip that marijuanawas being grown in defendant's backyard, drove to defendant's house wheretheir attempt to see into the backyardwas thwarted by a 6-foot outer fenceand a 10-foot inner fence. Undaunted,the police officers hired a private planeand flew over defendant's house. Froman altitude of 1,000 feet, the officerswere able to identify,25 with unaided vision, a large number of marijuanaplants growing in defendant's yard. Theplants were photographed with a standard 35mm camera. 26 Later, the anonymous tip, the officers' observations, andthe photographs were used to secure asearch warrant for defendant's property. During the execution of the warrant, 73 marijuana plants were seized.Defendant pleaded guilty to acharge of CUltivation of marijuana afterthe trial court denied his motion to suppress the evidence seized pursuant tothe warrant. The California Court of Appeals,27 however, reversed the trialcourt's denial of defendant's motion onthe grounds that the "warrantless aerialobservation of [defendant's] yard whichled to the issuance of the warrant violated the Fourth Amendment."28After the California Supreme Courtdenied prosecution's petition for review,the U.S. Supreme Court granted certiorari and reversed. The SupremeCourt recognized that the defendanthad clearly manifested a "subjective intent and desire to maintain privacy asto his unlawful agricultural pursuits."29However, as the Court pointed out inOliver, the subjective intent of an individual is not conclusive when determining the existence of a reasonable24 I FBI Law Enforcement Bulletin

A4'i '"dEweexpectation of privacy. Rather, it isequally important to consider whetherthe individual's subjective expectationis one that society is willing to protect.More precisely, the Court in Ciraolowas faced with the question of whetherthe "naked-eye observation of the curtilage by the police from an aircraft lawfully operating at an altitude of 1,000feet"30 infringed upon "the personal andsocietal values protected by the FourthAmendment."31Although accepting defendant's initial argument that the area observedwas intimately linked to the homewhere, traditionally, "privacy expectations are most heightened:'32 the Courtnoted that the simple fact that an areais within the curtilage does not itself barall police observation. On the contrary,the Court pointed out that the fourthamendment does not "require law enforcement officers to shield their eyeswhen passing by a home on public thoroughfares."33 It would be unreasonableto expect absolute privacy, even in acurtilage area, if the area is partiallyopen to view from a public vantagepoint. Because the observations inquestion were made in a physicallynonintrusive manner by officers flying innavigable airspace which is available tothe general public, the Court readilyconcluded that defendant's "expectation that his garden was protected fromsuch observations [was] unreasonableand [was] not an expectation of privacythat society is prepared to honor."34 Accordingly, the Court held that becausethere was no interference with a reasonable expectation of privacy, therewas no "search" under the fourthamendment, and hence, no need for awarrant.OM. '**HSome questions remained unanswered in the wake of Ciraolo. The observations at issue in Ciraolo weremade by the naked eyes of law enforcement officers flying a fixed-wingaircraft in navigable airspace. If any ofthese factors were changed, would thereasoning in Ciraolo still control?The question was partially resolved by the Supreme Court in thecase of Dow Chemical Company v.United States. 35 In Dow, the Court approved the use of a sophisticated mapping camera36 to improve observationsmade while flying over an industrialcomplex. Acknowledging that the camera was available to the general public,the Court held that "the mere fact thathuman vision is enhanced somewhat,at least to the degree here, does notgive rise to constitutional problems."3?Although some issues still remainunresolved,38 it is quite apparent that asa result of Ciraolo and Dow Chemical,the warrantless fly over continues to bea viable law enforcement investigativetechnique.Dog SniffsThe use of specially trained dogsto detect the odors of explosives andnarcotics is another example of a lawenforcement practice that has causedsome concern in the courts over theyears since Katz. This concern was atleast partially alleviated by the Supreme Court when it gratuitously addressed the issue of using speciallytrained dogs in the case of UnitedStates v. Place. 39In Place, law enforcement officersat New York's LaGuardia Airport lawfully detained defendant on a reasonable suspicion that he was carrying acontrolled substance. 4o When defendant refused to consent to a search ofa:&his luggage, he was given the opportunity to accompany his luggage to theoffice of a Federal judge where asearch warrant would be sought. Defendant declined the offer but requested and received a telephonenumber where the officers could bereached. After defendant left the premises, his luggage was taken to KennedyAirport where it was subjected to a"sniff test" by a trained narcotics detection dog. 41 In response to the dog's positive reaction to one of the bags, awarrant was secured. The subsequentsearch of the bag revealed a substantial quantity of cocaine. The defendantwas later arrested and indicted for possession of cocaine with intent to deliver.After the district court denied defendant's motion to suppress the evidence seized from his luggage,42defendant entered a plea of guilty butreserved his right to appeal the denialof his suppression motion. On review,the U.S. Court of Appeals for the Second Circuit reversed on the groundsthat the lengthy detention of defendant's luggage exceeded permissiblelimits and ·consequently amounted to aseizure in violation of the fourth amendment. 43 The U.S. Supreme Court affirmed.Although resolution of the disputein Place did not require the Court toaddress the use of "dog sniffs,"44 a majority of the Court took the opportunityto clarify the issue. 45 The analysis usedby the Court in Place was similar to theanalysis discussed in previous cases.First, the COUli looked and found thatdefendant had a subjective f;:tpectationof privacy in his luggage. Next, theCourt consid red whether the use of aspecially trained dog to detect the odorsNovember 1988 I 25

m4ZU· 4N44 ,T t'8t,' , M' meAAJW 2" . there is no reasonable expectation of privacy in certainareas, and therefore, these areas are not protected by thefourth amendment."emanating from the luggage violatedany expectation of privacy that societywas willing to protect. Of particular significance to the Court was the fact thatthe "dog sniff" did not require the opening of defendant's luggage. 46 Furthermore, the Court made the followingobservations:"[The 'dog sniff'] does not exposenoncontraband items that otherwisewould remain hidden from publicview, as does, for example, anofficer's rummaging through thecontents of the luggage. Tllus, themanner in which information isobtained through this investigativetechnique is much less intrusivethan a typical search. Moreover,the sniff discloses only thepresence or absence of narcotics,a contraband item. Thus, despitethe fact that the sniff tells theauthorities something about thecontents of the luggage, theinformation obtained is limited. Thislimited disclosure also ensures thatthe owner of the property is notsubjected to the embarrassmentand inconvenience entailed in lessdiscriminate and more intrusiveinvestigative methods."47Obviously, what impressed the Courtthe most about the "dog sniff" was itslimited intrusiveness. The sniff can telllaw enforcement officers only onething-whether there is contraband inthe item tested. According to the Court,this single fact is something society isnot willing to protect. Consequently, under the circumstances present in Place,the use of a trained detection dog didnot violate any reasonable expectationof privacy, and therefore, was not asearch under the fourth amendment.In Place, the Court did not go sofar as to say that no dog sniff wouldever be considered a search. There remains some room for doubt. For instance, some courts have held that thereasoning in Place is not controllingwhen a detectio'1 dog is used to sniff aperson 48 or an individual's home.49 It isclear, however, that when an item ofpersonal property, such as luggage, isbrought into a public place 50 and thereafter subjected to the special talents ofa detection dog, no fourth amendmentconcerns arise. Accordingly, the "dogsniff" continues to be a widely used, effective law enforcement investigativetechnique.Field TestsShortly after announcing its decision in Place, the Supreme Court, inUnited States v. Jacobsen ,51 used thesame rationale 52 to sanction the law enforcement practice of conducting warrantless field tests of suspectedcontrolled substances. In Jacobsen, apackage that was being shipped byFederal Express was damaged intransit. In accord with company policies, an employee opened the box toinspect for further damage. Inside thebox, the employee found a 1O-inch tubeof duct tape containing a number ofplastic bags. One of the plastic bagsheld a quantity of a white powder. Suspicious of the powdered substance, theemployee contacted agents of the DrugEnforcement Administration (DEA) whoresponded quickly when advised ofwhat had been found. However, beforeagents arrived at the Federal Expressoffice, the employee replaced all theitems he had tai en from the box.When agents arrived on the scene,the items were once again taken fromthe box. The plastic bags were opened,and a knife was used to remove a smallamount of the white powder. A field testidentified the powder as cocaine.Armed with the results of the field test,agents obtained a warrant to search theplace corresponding to the address onthe package. The warrant was executed and defendant was arrested.After being indicted on charges ofpossession with intent to distribute, defendant moved to suppress the evidence on the grounds that the warrantwas the product of an illegal search ofthe damaged package. Defendant'smotion was denied, and he was subsequently tried and convicted. On appeal, the Eighth Circuit Court ofAppeals reversed defendant's conviction on the basis that the field test ofthe white powder was a search underthe fourth amendment and a warrantwas required. 53 Because "field testsplay an important role in tile enforcement of the narcotics laws," 54 the Supreme Court agreed to review the case,and ultimately, reversed the decision ofthe court of appeals.In reaching its conclusion, theCourt noted first that the opening of thepackagG by the Federal Express employee was not a "search" governed bythe fourth amendment, inasmuch as itwas not performed by a governmentactor.55 Next, the Court found that thesubsequent opening of the package byDEA agents was not, in and of itself, a"search" because defendant's reasonable expectation of privacy in the package had already been frustrated tosome extent by the Federal Expressemployee. 56 What concerned the Courtwas whether the DEA agents made anysignificant invasion of defendant's privacy when they exceeded the scope ofthe Federal Express employee's ac-26 I FBI Law Enforcement Bulletin

.HH'1W8DHhAtions by field testing the controlled substance. 57 More precisely, did the fieldtest itself intrude into an area where defendant had a reasonable expectationof privacy remaining, thereby makingthe warrantless test an unreasonablesearch under the fourth amendment?There was no doubt that the defendant expected privacy, not only inthe package itself but also in the natureof the white powdered substance contained therein. Nevertheless, the Courtwas quick to point out that "the mereexpectation, however well justified, thatcertain fact.s will not come to the attention of the authorities" 58 is critically different than the "concept of an interestin privacy that society is prepared torecognize as reasonable." 59 The question thus became whether the field testat issue violated an expectation of privacy that society is willing to protect.Answering this question in the negative,the Court relied on its knowledge that"the field test could disclose only onefact previously unknown to the Agentwhether or not a suspicious white powder was cocaine. It could tell him not!,ing more, not even whether thesubstance was sugar or talcum powder." 60 Because the test could revealonly this one fact, the Court concludedthat it did not compromise any legitimate interest in privacy.By refusing to characterize the fieldtest as a "search," the Supreme Courtadded this investigative technique tothe list of law enforcement practicesthat have been removed from fourthamendment scrutiny.Trash InspectionsThe law enforcement investigativetechnique that has undergone the mostrecent judicial review is the warrantlessi &inspection of discarded trash. In California v. Greenwood,61 the SupremeCourt upheld such inspections whenthe trash was left for collection outsidethe curtilage of the home.In Greenwood, law enforcementofficers received information indicatingthat defendant was involved in drugtrafficking. Surveillance of defendant'shome added to the officers' suspicions.In an effort to develop probable causeto search defendant's premises, officers arranged to have the local trashcollector segregate defendant's trashbags during the regular scheduledpickup so that the bags could be inspected for evidence. The warrantlessinspection resulted in discoverieswhich, when recited in an affidavit, supported the issuance of a search warrant. The subsequent search ofdefendant's home resulted in the seizure of cocaine and hashish. Defendantwas thereafter arrested on felony narcotics charges.While defendant was out on bail,law enforcement officers continued toreceive reports of suspicious activitiesat defendant's home. Consequently, atrash pickup identical to the previousone was conducted and again evidenceof narcotics trafficking was found. Asecond search warrant was executedand additional evidence was seizedfrom defendant's residence. Oncemore, defendant was arrested on narcotics charges.Prior to trial, the evidence seizedpursuant to the warrants was suppressed on the theory that the warrantless trash searches violated the fourhamendment,62 and all charges againstthe defendant were dismissed. Both thesuppression of evidence and dismissalof charges were upheld by the California Court of Appeals.63 After the Cali- tIIfomia Supreme Court denied theprosecution's petition for review, theU.S. Supreme Court agreed to hear thecase.54On review, the Supreme Court simply applied the two-part analysis it hadused in previous cases and came to theconclusion that although defendantmay have had a subjective expectationthat his trash was private, that expectation was not objectively reasonablebecause it was not an expectation ofprivacy that society was willing to recognize and protect. The Court's conclusion that society would not recognizedefendant's expectation of privacy asreasonable was based in large part onthe belief that defendant had "exposed[his] garbage to the public sufficiently todefeat [his] claim of Fourth Amendmentprotection." 65 The Court found it to be"common knowledge that plastic garbage bags left on or at the side of thepublic street are readily accessible toanimals, children, scavengers, snoops,and other members of the public." 66Because the contents of the trash bagswere so "readily accessible," the Courtheld, as a matter of law, defendant"could have had no reasonable expectation of privacy in the inculpatory itemsthat [heJ discarded." 67It is important to reiterate that theCourt's holding in Greenwood is applicable only in situations where the trashbags in question have been left for collection outside the curtilage of thehome.68 The Court did not condone lawenforcement intrusions into curtilageareas for the purpose of collecting thedesired trash bags. Nevertheless, despite the dissenting Justice's opinionthat "scrutiny of another's trash is contrary to commonly accepted notions ofcivilized behavior," 69 the majority inNovember 1988 I 27

,e"Me'"' 'iA'"lid4'6!the Court has approved the warrantless use of thoseinvestigative techniques which merely intrude into areas thatsociety is not willing to protect."H Greenwood has preserved the warrantless inspection of discarded trashas an effective, if not particularly attractive, investigative technique.ConclusionThe recent decisions of the Supreme Court were not, in any way, intended to diminish the protections ofthe fourth amendment. On the contrary,the Court has repeatedly stressed boththe importance of complying with fourthamendment proscriptions and the desirability of obtaining warrants whenever possible.7 However, in thoseinstances where reliance on a warrantis an impossibility,?l the Court hascleared the way for the use of certainless intrusive investigative techniques.Specifically, the Court has approvedthe warrantless use of those investigative techniques which merely intrudeinto areas that society is not willing toprotect. As a result, law enforcementofficers can return to traditional policepractices such as those discussedherein with renewed confidence in theconstitutionality of their actions. [F Footnotes1U.S. Cons!. amend. IV reads: "The right of thepeople to be secure in their persons, houses, papers andeffects, against unreasonable searches and seizures,shall not be violated, and no Warrant shall Issue, butupon probable cause, supported by Oath or affirmation,and particularly describing the place to be searched, andthe person or things to be seized:'2See, e.g., Hale v. Henkel, 201 U.S. 43 (1906)(defining seizure); Brinegar v. United States, 338 U.S.160 (1949) (defining probable cause); Illinois v. Gates,462 U.S. 213 (1983) (defining probable cause); UnitedStates v. Jacobsen, 466 U.S. 109 (1984) (defining searchand seizure); Maryland v. Macon, 105 S.C!. 2

Special Agent Legal Counsel Division FBI Academy Quantico, VA Law enforcement officers of other than Federal jurisdiction who are inter ested in any legal issue discussed in this article should consult their legal adviser. Some police procedur