Golden Gate University Law Review


Oliver and Dunn present substantial difficulties to police and courts attempting to implement the rules of the cases in the field and courtrooms. An examination of the two cases reveals that no genuinely autonomous doctrine has been revived: applying the open fields "doctrine" of Oliver and Dunn involves virtually the same inquiries as the "reasonable expectation of privacy" test of Katz. Rather than providing a bright line rule that will efficiently dispose of fourth amendment problems, it is readily foreseeable that in addition to challenges under Katz, defendants will also routinely challenge residential searches under Oliver and Dunn. Because analysis under Katz and the open fields doctrine are virtually indistinguishable, courts will be compelled to waste time rehashing identical issues. In addition to their negative implications for judicial economy, Oliver and Dunn represent a retreat from the Court's historic tendency to apply the fourth amendment flexibly and expansively to meet new demands placed on it by an evolving society. This comment will first gloss the history of the open fields doctrine in fourth amendment jurisprudence; proceed to a review of the factual and procedural contours of Oliver and Dunn; analyze and comment upon the decisions; and conclude with recommendations for dealing with the difficulties presented by the cases.

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