294 BRENNAN, J., dissenting B In nar Today's decision has an unforeseen consequence. rowing the meaning given to the concept of curtilage, the Court also narrows the scope of searches permissible under a warrant authorizing a search of building premises. Police officers often proceed as if a warrant that authorizes a search of the premises or the dwelling also authorizes a search of any outbuildings (such as garages, barns, sheds, smokehouses) because such buildings are commonly deemed within the curtilage. See Gumina v. State, 166 Ga. App. 592, 595, 305 S. E. 2d 37, 39 (1983) ("[E]ven if the [trailers] had not been described at all [in the warrant], the officers would have been authorized to search them as part of the curtilage or premises of the residence"); Barton v. State, 161 Ga. App. 591, 592, 288 S. E. 2d 914, 915 (1982) (curtilage includes yards, grounds, gardens, barn, and outbuildings; all may be searched though not specifically described in warrant, so long as warrant has been obtained to search premises); State v. Vicars, 207 Neb. 325, 299 N. W. 2d 421 (1980) (calf shed located 100 feet from house on opposite side of chain link fence that surrounded the yard is within curtilage so search war stay outside that zone" and that officers will have difficulty in doing so. I continue to believe that the rule suggested in dissent in Oliver is most faithful to the Fourth Amendment analysis set forth in Katz v. United States, 389 U. S. 347 (1967), and provides the clearest answer to the question of when persons possess a reasonable expectation of privacy in their property: "Private land marked in a fashion sufficient to render entry thereon a criminal trespass under the law of the State in which the land lies is protected by the Fourth Amendmen[t]." 466 U. S., at 195. By rejecting this rule, "the Court is willing to sanction the introduction of evidence seized pursuant to a potentially criminal activity (trespassing) in order to convict an individual of a slightly more serious crime." Comment, Curtilage or Open Fields?: Oliver v. United States Gives Renewed Significance to the Concept of Curtilage in Fourth Amendment Analysis, 46 U. Pitt. L. Rev. 795, 810, n. 87 (1985). "For good or for ill, [the Government] teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law." Olmstead v. United States, 277 U. S. 438, 485 (1928) (Brandeis, J., dissenting). BRENNAN, J., dissenting 480 U. S. rant authorizing search of dwelling also authorizes search of outbuilding); Bellamy v. State, 134 Ga. App. 340, 214 S. E. 2d 383, 384 (1975) (“Curtilage' comes down from early English days. An outbuilding on the grounds is within the 'curtilage' and may be searched under such a warrant, though not described specifically"); Meek v. Pierce, 19 Wis. 300, 302 (1865) ("It would destroy the utility of the proceeding, if, beside the building principally named, all other buildings and places of concealment upon the same premises, occupied in connection with it and by the same person, could not also be searched, and by virtue of the same warrant"). After today, reliance upon this general rule is illegitimate, and warrants must specify that a search of the farmer's outbuildings is also contemplated. III Even if Dunn's barn were not within the curtilage of his farmhouse, his reasonable expectation of privacy in the barnyard would bring the Fourth Amendment into play. It is well established that the Fourth Amendment protects a privacy interest in commercial premises. See Oliver v. United States, 466 U. S., at 178, n. 8 (the protection of privacy interests in business premises is "based on societal expectations that have deep roots in the history of the Amendment"). The questions in this case are whether a barn is a commercial structure and, if so, how far its owner's expectations of privacy reasonably extend. The Court assumes that respondent possessed an expectation of privacy in his barn and its contents because the barn was an essential part of his business. This assumption is 'See also Marshall v. Barlow's, Inc., 436 U. S. 307, 312 (1978) (the historical foundation of the Fourth Amendment reveals that "it is untenable that the ban on warrantless searches was not intended to shield places of business as well as of residence"); See v. City of Seattle, 387 U. S. 541, 543 (1967) (“The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property"). 294 BRENNAN, J., dissenting plainly correct. A ranch or a farm is a business like any other. As the Court of Appeals, like many other courts to consider the question, concluded: "A barn is as much a part of a rancher's place of business as a warehouse or outbuilding is part of an urban merchant's place of business. It is and ought to be constitutionally protected from warrantless searches if the owner or occupier takes reasonable steps to effect privacy." 766 F. 2d, at 885. This established, we inquire whether the owner of a commercial building has a reasonable expectation of privacy in the area surrounding or adjacent to that building. Since 'See also Walker v. United States, 225 F. 2d 447, 453 (CA5 1955) (Rives, J., dissenting) (“I can see no reason why a farmer should be afforded less protection in the barn where he actually does business, whether located within the curtilage or not, than is accorded a city dweller in his office"); Janney v. United States, 206 F. 2d 601, 603 (CA4 1953) (the defendant's barn was protected because "the [Fourth] Amendment extends not only to the dwelling house of a defendant, but also to the structures used by him in connection with his . . . place of business"); United States v. Broadhurst, 612 F. Supp. 777, 790 (ED Cal. 1985) (the argument "that farmers or other citizens living and working in rural settings . . . are not protected in their business enterprises by the Fourth Amendment to the same degree as their urban counterparts" could not prevail); Norman v. State, 379 So. 2d 643, 647 (Fla. 1980) (the defendant's "barn, as an integral part of petitioner's farming business, enjoyed the same fourth amendment protection as do other business premises"). "The usual manner of deciding whether intrusions on land near a dwelling are reasonable is to determine whether an officer is within the curtilage or in the open fields. It is plain that the open fields doctrine is not properly applied to land which has been developed. See Oliver, 466 U. S., at 180, n. 11, and 178 (emphasis added) (“It is clear. . . that the term 'open fields' may include any unoccupied or undeveloped area outside of the curtilage." "[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields"); see id., at 196 (MARSHALL, J., dissenting) (“[W]e may now expect to see a spate of litigation over the question of how much improvement is necessary to remove private land from the category of 'unoccupied or undeveloped area' to which the 'open fields exception' is now deemed applicable"). BRENNAN, J., dissenting 480 U. S. Katz v. United States, 389 U. S. 347 (1967), this Court has applied the Fourth Amendment whenever "the person invoking its protection can claim a 'justifiable,' a 'reasonable,' or a legitimate expectation of privacy' that has been invaded by government action." Smith v. Maryland, 442 U. S. 735, 740 (1979). This is a two-part inquiry. First, the individual must exhibit a subjective expectation of privacy in the object of the challenged search. See Smith v. Maryland, supra, at 740. Dunn has met this standard. See supra, at 312. Second, "the expectation [must] be one that society is prepared to recognize as 'reasonable."" Katz, supra, at 361 (Harlan, J., concurring). For a homeowner to preserve Fourth Amendment protection in the area immediately surrounding the residence, he or she must not conduct an activity or leave an item in the plain view of those outside that area. The occupant of a commercial building must take the additional step of affirmatively barring the public from the area because a business operator has a reasonable expectation of privacy only in those areas from which the public has been excluded. When a business or commercial structure is not open to the public, "[a]pplication of the Katz justified-expectation-ofprivacy test . . . requires consideration of where the police were at the time of surveillance and how the surveillance was conducted. If police using the naked eye or ear are able to see or hear while located on adjoining "The Court has noted that in some situations the absence of any subjective expectation of privacy would not defeat an individual's Fourth Amendment claim. See Smith v. Maryland, 442 U. S., at 740. See also Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 384 (1974). "This requirement comports with the Court's usual view of the relationship between commercial premises and the Fourth Amendment. The Government must obtain a search warrant only when it wishes to search those areas of commercial premises from which the public has been excluded. See See v. City of Seattle, supra, at 545. See also Comment, 46 U. Pitt. L. Rev., at 815, n. 113. 294 BRENNAN, J., dissenting property or even on property of the business which is readily accessible to the general public, this is not a search... "On the other hand, if the police engage in a much more intense form of surveillance, especially from places not ordinarily used by the public, this is a search under Katz." 1 W. LaFave, Search and Seizure §2.4 (b), pp. 433-434 (2d ed. 1987) (emphasis added; footnotes omitted).9 See Norman v. State, 379 So. 2d 643, 647 (Fla. 1980) (petitioner had a reasonable expectation of privacy in his barn because the "barn, as an integral part of petitioner's farming business, enjoyed the same fourth amendment protection as do other business premises" and because he "took overt steps to designate his farm and barn as a place not open to the public"). The Court applied this distinction between protected commercial premises (from which the public is excluded) and unprotected commercial premises (to which the public has access) in its analysis last Term in Dow Chemical Co. v. United States, 476 U. S. 227, 237-238 (1986). In that case the Court held that "EPA's aerial photography of petitioner's 2,000-acre plant complex without a warrant was not a search under the Fourth Amendment." Id., at 229. In so holding, the Court emphasized that "the narrow issue raised" was the lawfulness of observation "without physical entry" and that "[a]ny actual physical entry by EPA into any enclosed area would raise significantly different questions." Id., at 237 (emphasis added). For that reason, the Court deter 'For example, in Commonwealth v. Soychak, 221 Pa. Super. 458, 462-463, 289 A. 2d 119, 122-123 (1972), a police officer, suspicious that gambling activities were taking place inside a certain club, climbed onto the roof of a building and peered through the louvers of a ventilating fan. The court held that despite the fact that the club had "failed to completely block the view of police investigators," its operators nonetheless possessed a reasonable expectation of privacy. |