UNITED STATES OF AMERICA, PETITIONER V. RONALD DALE DUNN No. 85-998 In the Supreme Court of the United States October Term, 1985 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit TABLE OF CONTENTS Question presented Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals on remand from this Court (App., infra, 1a-11a) is reported at 766 F.2d 880. The original opinion of the court of appeals (App., infra, 16a-35a) is reported at 674 F.2d 1093. JURISDICTION The judgment of the court of appeals (App., infra, 36a) was entered on July 16, 1985. A petition for rehearing was denied on September 11, 1985 (App., infra, 14a-15a). On November 2, 1985, Justice White extended the time for filing a petition for a writ of certiorari to and including December 10, 1985. /1/ The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a search warrant is needed to peer into the open side of a barn that is located in an open field. STATEMENT Following a jury trial in the United States District Court for the Western District of Texas, respondent Dunn and his co-defendant, Robert Carpenter, were convicted on one count of conspiracy to manufacture phenylacetone and amphetamine, in violation of 21 U.S.C. 846 (Count One). Respondent also was convicted of manufacturing the two controlled substances (Counts Two and Three), and of possessing amphetamine with intent to distribute (Count Four), all in violation of 21 U.S.C. 841(a)(1) (App., infra, 16a-17a). Respondent was sentenced to consecutive terms of four years' imprisonment on each of the four counts, and three years' special parole on Counts Two through Four. He also was fined $10,000 on each count (10 R. 17-18). The court of appeals affirmed Carpenter's convictions but reversed those of respondent (App., infra, 16a-35a). On May 21, 1984, this Court granted the government's petition for a writ of certiorari (No. 82-508), vacated the judgment reversing respondent's convictions, and remanded for reconsideration in light of Oliver v. United States, No. 82-15 (Apr. 17, 1984). On remand, the court of appeals once again reversed respondent's convictions (App., infra, 1a-11a). 1. The evidence is detailed in the opinions of the court of appeals. In the summer of 1980, agents of the Drug Enforcement Administration (DEA) were conducting surveillance of Carpenter, who was accumulating large quantities of chemicals and equipment used in the manufacture of amphetamine and phenylacetone, substances controlled by federal law. The equipment included several hot plate stirrers, electric heating devices that apply heat to a container and magnetically stir the contents. Stirrers are used in the "cooking" of chemicals. App., infra, 17a-18a. On September 3, 1980, DEA Agent Robert Surovec obtained a warrant from a Texas state judge authorizing the installation and operation of an electronic beeper in a stirrer. The beeper was installed and activated and, after Carpenter picked it up, the stirrer was tracked to his residence in Spring, Texas. The signal from this beeper was lost several days later. Meanwhile, warrants were obtained for the installation of beepers in a 55 gallon plastic drum of acetic anhydride and in a container of 100 pounds of phenylacetic acid, both ordered by Carpenter. Both beepers were installed, and the chemicals were delivered to Carpenter. The two beepers were monitored from October 27, 1980, until November 5, 1980, when, tracking the beeper in the 100 pound container, agents followed a pickup truck driven by Carpenter from Houston to respondent's ranch near Johnson City, Texas. At that time, the signal from the hot plate stirrer beeper was detected again, also coming from the Dunn ranch. App., infra, 18a-19a. DEA agents took aerial photographs of the ranch that afternoon. The photographs showed a ranch house at the end of a private driveway about one-half mile from a public road, a smaller house adjacent to the main residence, a windmill, a water tank, and two barns approximately 50 yards behind the house. The pickup truck was backed up to one of the barns. The entire ranch, about 198 acres in area, was encircled by a barbed wire perimeter fence, and there were several other "typical ranch type" (4 R. 90) interior fences, including one around the residence. The entrance to the private driveway was barred by a locked chain. App., infra, 3a, 19a; Exhs. 1-2. /2/ At about 9:00 p.m. on November 5, 1980, DEA Agent Ronald Gospodarek and Officer Martin Fite of the Houston Police Department entered the Dunn ranch by crossing the perimeter fence. They tried to make their way toward the barns behind the ranch house, but became disoriented in the dark. Eventually, they came to the driveway leading to the residence and from there they approached a fence at the rear of the ranch house. There Agent Gospodarek smelled a strong odor of phenylacetic acid, a precursor of phenylacetone. The officers crossed another fence and looked into an open pole barn, where they saw only empty boxes. Continuing to follow the odor they approached a second barn, where they heard the sound of a motor running. One end of the barn was open, but the entrance was blocked by a wooden, waist-high gate, which was closed and locked. Some type of netting hung from a tin overhang down to the gate. Standing outside the gate and shining their flashlights into the open side of the barn, the officers saw chemical equipment that appeared to be a phenylacetone laboratory (App., infra, 3a-4a, 19a-20a; 4 R. 73-82, 89, 93-94, 107-108; Exhs. 5-6). Gospodarek and Fite then left the ranch, without crossing the fence around the ranch house, and reported their findings. An affidavit for a warrant to search the ranch was prepared, which included the information obtained from this entry onto the ranch, and the warrant was issued on the evening of November 6, 1980. The warrant was executed on the morning of November 8, at which time respondent was arrested, and the chemicals and equipment were seized. App., infra, 4a-5a, 22a; 4 R. 82-83. 2. The court of appeals reversed respondent's convictions, finding that the evidence seized pursuant to the search warrant should have been suppressed because the warrant was based on information obtained during an unlawful warrantless entry onto respondent's land (App., infra, 16a-35a). /3/ The court rejected the contention that the search was lawful under the "open fields" doctrine; because both the ranch and the barn were surrounded by fences, the court held that the barn was "within the curtilage of the residence" (id. at 23a-29a). The court assumed that the government had probable cause to search the ranch, but it held that a warrant was required for the entry and search (id. at 29a-33a). 3. This Court vacated the decision of the court of appeals and remanded for reconsideration in light of Oliver v. United States, No. 82-15 (April 17, 1984). No. 82-508 (May 21, 1984). On remand, the court of appeals determined that, in light of Oliver, it could no longer be maintained that the agents had entered onto the curtilage in crossing the outer fences of the ranch (App., infra, 5a-8a). It concluded that the barn "was not within the protected curtilage of the Dunn ranch house" (id. at 7a-8a). The court went on to state, however, that the barn was not an open field and "ought to be constitutionally protected from warrantless searches if the owner or occupier takes reasonable steps to effect privacy" (id. at 10a). The court found that respondent had taken steps to protect his privacy, noting the fences, the fact that one could see into the barn only from close range, and the fact that the barn was not open to entry (ibid.). Accordingly, the court concluded that respondent had a reasonable expectation of privacy in his barn and its contents, and therefore the officers' visual "search" of the barn from their exterior vantage point required a warrant (ibid.). The court again ordered that the evidence seized from respondent's barn be suppressed and his convictions reversed REASONS FOR GRANTING THE PETITION In attempting to resurrect its original holding in this case after the basis for that holding was eliminated by this Court in Oliver, the court of appeals has reached a completely untenable result. The court has found that the police officers here infringed no constitutional rights in entering respondent's property and approaching his barn as they followed the scent of the phenylacetic acid across the open fields. But when they have tracked that odor to its source and found it to be a barn exposed to view on one side, and although they have probable cause to believe that they would see an illegal narcotics laboratory if they just open their eyes, they must, according to the court of appeals, avert their eyes and depart to apply for a search warrant in order to look into the barn. The justification for this absurd result is an alleged expectation of privacy in the contents of the barn that rests on three shaky props: 1) the existence of a typical ranch fence surrounding the barn -- which has already been held by this Court not to confer a legitimate expectation of privacy; 2) the fact that a gate bars entry to the barn -- which is quite irrelevant since it has never been suggested that the officers entered or sought to enter the barn without a warrant; and 3) the fact that the contents of the barn would not have been visible to the officers had they been standing somewhere else -- which can be said of almost anything situated in an open field and is also quite irrelevant. By its decision, the court of appeals has injected uncertainty into fundamental principles of Fourth Amendment law heretofore seemingly well settled. In addition (assuming no revision of general principles was intended), the court's circumvention on such a flimsy basis of this Court's decision vacating its earlier judgment should not be permitted to stand. See Florida v. Rodriguez, No. 83-1367 (Nov. 13, 1984). To the extent the decision below rests on a legal principle not erased by Oliver, it seems to stand for the proposition that an area protected by the Fourth Amendment from warrantless entry is also protected from warrantless visual inspection even if no entry is made. This proposition is completely inconsistent with the well-settled principle that a government official is not "precluded from observing as an officer what would be entirely visible to him as a private citizen." Texas v. Brown, 460 U.S. 730, 740 (1983) (plurality opinion). See also Maryland v. Macon, No. 84-778 (June 17, 1985), slip op. 5; Marshall v. Barlow's, Inc., 436 U.S. 307, 315 (1978); Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 865 (1974). Under Oliver, it is clear that the police were entitled to approach the barn just as a member of the public might reasonably have been expected to do. The court of appeals acknowledged this. Respondent had no reasonable expectation that a member of the public would not thereupon look into the open side of the barn, and the Fourth Amendment does not prevent a police officer from doing the same thing. It is well established that the fact that the Fourth Amendment protects an area against warrantless entry does not mean that the Constitution erects a barrier to visual observation of that area from places open to the public. See, e.g., Oliver, slip op. 7 n.9 (litigation focused on lawfulness of entry; no question that observation from outside the property was lawful); Texas v. Brown, supra (looking into an automobile); United States v. Santana, 427 U.S. 38 (1976) (observing individual in doorway of her home); United States v. Lee, 274 U.S. 559 (1927) (looking onto a boat deck). /4/ Here, respondent could not claim a reasonable expectation of privacy in the interior of his barn, for he had quite clearly exposed it to public view by leaving one part of a side open and covering it with a non-opaque netting. The officers, by looking into the open barn from outside, did no more than observe what was already exposed to their view. /5/ The court of appeals acknowledged that the barn was not on the curtilage, but its decision seems to rest on the theory that the interior of the barn was imbued with an expectation of privacy akin to that of the curtilage. Even were that so, however, such an expectation of privacy is one of being free from entry, not observation. A long line of cases plainly demonstrates that the Court has always assumed that mere observation of the curtilage is lawful. In Hester v. United States, 265 U.S. 57 (1924), for example, the police officers who entered the open field were able to observe the defendant in possession of contraband just outside the doorstep of his house. 265 U.S. at 58. Once the Court determined that the trespass did not violate the Fourth Amendment, it did not doubt that the officers lawfully could observe the defendant's activities from their vantage point in the open field, although those activities almost surely took place within the curtilage. Similarly, in United States v. Karo, No. 83-850 (July 3, 1984), and United States v. Knotts, 460 U.S. 276 (1983), the Court considered the Fourth Amendment implications of police monitoring of a "beeper" transmitting signals from in or near a privately owned building. The Court found manifestly unobjectionable the use of a beeper to obtain information available from visual surveillance, even if that surveillance extended up to the door of a residence (see Karo, slip op. 7-9; Knotts, 460 U.S. at 281-282, 285). The only Fourth Amendment problem arose from the use of the beeper "to obtain information that it could not have obtained by observation from outside the curtilage of the house" (Karo, slip op. 9). In sum, the fact that government officials may lack authority in a given situation to enter the curtilage of a residence does not prevent them from standing outside the curtilage and looking inside to observe what is exposed to their view from that vantage point. See also Fullbright v. United States, 392 F.2d 432, 434-435 (10th Cir.), cert. denied, 393 U.S. 830 (1968). By the same token, the officers in this case standing in respondent's open field were not constitutionally barred from looking inside a partially enclosed structure that was open to their view. CONCLUSION The petition for a writ of certiorari should be granted. The Court may wish to consider summary disposition. Respectfully submitted. CHARLES FRIED Solicitor General STEPHEN S. TROTT Assistant Attorney General ANDREW L. FREY Deputy Solicitor General ALAN I. HOROWITZ Assistant to the Solicitor General KATHLEEN A. FELTON Attorney DECEMBER 1985 /1/ On October 3, 1985, the court of appeals entered an order recalling the mandate, thereby suspending its order of September 11 denying rehearing. On November 14, 1985, the court of appeals entered a new order denying the petition for rehearing en banc and reinstating its earlier order denying panel rehearing (App., infra, 12a-13a). Because the rehearing petition remained pending in the court of appeals (as the court of appeals noted in another case involving respondent, see United States v. Dunn, No. 84-1012 (Oct. 25, 1985)) and was not finally disposed of until November 14, the government's time to petition for certiorari appears to have begun to run anew on that date and does not expire until January 13, 1986. In order to eliminate any possible question of timeliness, however, this petition is being filed within the time limits dating from the original September 11 order. /2/ "R." refers to the record in the court of appeals. "Exh." refers to the exhibits introduced by the government at the suppression hearing. /3/ Because Carpenter had no legitimate expectation of privacy in the ranch, his convictions were affirmed (App., infra, 23a, 35a). /4/ Two cases pending before this Court, Dow Chemical Co. v. United States, No. 84-1259 (argued Dec. 10, 1985), and California v. Ciraolo, No. 84-1513 (argued Dec. 10, 1985), raise the question whether this principle extends to observation or photography from the air. An affirmance in Dow Chemical and reversal in Ciraolo, which we believe to be the appropriate results, would further confirm the untenability of the decision below. For this reason, the Court may wish to consider holding this case for Dow Chemical and Ciraolo. We emphasize, however, that the decision in this case is clearly wrong regardless of the ultimate disposition of Dow Chemical and Ciraolo. Whatever the rule for aerial observation, it cannot seriously be suggested that a police officer standing on his own two feet in a place to which the public has access requires a warrant in order to observe what is exposed to naked eye viewing. /5/ While the Court need not reach the question to decide the case, we note our position that a warrant is not required to make even an entry into a relatively non-private structure of the kind involved in this case. Even if the partially open barn is not deemed part of the open field, it supports only a limited expectation of privacy such that officers with probable cause do not act unreasonably in entering and searching such a structure. APPENDIX