                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 12-3092
                          ___________________________

                               United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                           Richard Westmoreland Mathias

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                    for the Southern District of Iowa - Davenport
                                   ____________

                              Submitted: April 11, 2013
                                Filed: July 31, 2013
                                  ____________

Before MURPHY, BEAM, and BYE, Circuit Judges.
                          ____________

BYE, Circuit Judge.

        Richard Westmoreland Mathias was indicted 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’s1 denial of his motion

      1
        The Honorable James E. Gritzner, Chief Judge, United States District Court
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

      2
        In resolving the motion, the district court assumed the land was, as represented
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.3 The district court denied the motion, in
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 assess findings 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

      3
       Mathias also moved to suppress the search warrant as unsupported by probable
cause. The district court also denied that portion of the motion. Mathias does not
challenge the probable cause ruling on appeal.
      4
        Mathias also filed an unsuccessful motion to reconsider. Although Mathias
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

       Mathias first contends the strip of land 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
determinations for 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.

      “The Fourth 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 individual reasonably 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 passers-
by 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, requires the 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).

                                         -6-
       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 agents from
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]

                                         -7-
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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