480 U. S. 294
March 3, 1987
Drug enforcement agents suspected Dunn of manufacturing illegal drugs on his 198 acre ranch. Without a warrant, they crossed a few fences, peered inside a barn with a flashlight, and found evidence of illegal drug production. Dunn moved to suppress the evidence on the argument that the drug agents violated his Fourth Amendment rights by looking inside the barn.
Justice White wrote for a 7-2 majority that upheld admission of the drug evidence. While it would have been unconstitutional for the agents to have similarly looked into Dunn’s home, the Court held that the barn was not within the home’s curtilage. This was because the barn was several dozen yards from the main house, the main house was enclosed by yet another fence, the agents had no reason to believe that the barn was being used for domestic activity, and the barn was only minimally protected from observation. White also ruled that Dunn had no reasonable expectation of privacy because the barn was not actually entered, and because fences do not automatically grant such a privacy expectation.
Brennan dissented, and was joined by Marshall. He cited a long list of state and federal cases which had held that a barn was within a home’s curtilage, found the factors that the Court had listed in making the opposite determination unimportant, and accused the majority of being indifferent to the culture of farm life (this was laughably ironic, given that Brennan grew up in Newark, New Jersey, while White grew up in the sleepy farm country of Wellington, Colorado). Brennan also argued that the barn was a place of business, and that places of business have a well recognized right to freedom from excessively intrusive surveillance.
If you read every case starting from the beginning of the term, you may be wondering by now where the heck Scalia is. In the 44 decisions before this one, he wrote a grand total of three opinions, all of which were short and unmemorable. Fear not! From here on out, his opinions will become far more frequent. In Dunn he contributed a brief statement joining White in everything but his contention that the agents should have a reasonable belief that the barn was not used for domestic activity. Scalia said that they needn’t even have a reasonable belief – it was enough that the barn actually wasn’t used for protected domestic activity.
Much as it pains me, I have to admit that I think Brennan is probably right in this case. There should have been a reasonable expectation of privacy for Dunn’s barn, and the drug agents should have gotten a warrant. If anything, this case highlights my disagreement with the exclusionary rule as it currently stands – I am ultimately glad that White’s side won because this is precisely the sort of potential violation that I simply don’t see as heinous enough to require total suppression of the evidence.