No Trespassing.?

Question

Two deputy sheriffs suspect that a man named Earnest is making moonshine on some property he owns in the county. Earnest owns about ten acres in a remote area in the county. No one lives on the property. The deputies can not get probable cause to get a search warrant for the property. They have heard Earnest is involved in illegal moonshine and they know for a fact he is not making it in his small apartment in town.
One night the two deputies get bored and drive out to Earnest's land. The land is surrounded by a fence with "No Trespassing" signs on the fence. The two deputies scale the fence and begin to look around. They find a large shed in the middle of the land. The shed is locked. The deputies have to use a flashlight to look in to the shed's boarded up windows. When they do they see a still and what looks like a marijuana grow operation. Can the deputies use this information for a search warrant or is this a 4th Amendment violation? Why?

This scenario is covered under Oliver v.United States:
http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0466_0170_ZS.html

I'm surprised no one took the flashlight bait I threw in to this one.

Answer 1

The deputies CAN use the information for a search warrant and it is NOT a 4th Amendment violation.

This senario is covered under what is known as the "Open Field Doctrine."

Courts have continuously held that entry into an open field--whether trespass or not--is not a search within the meaning of the Fourth Amendment. No matter what steps a person takes, he or she cannot create a reasonable privacy expectation in an open field, because it is an area incapable of supporting an expectation of privacy as a matter of constitutional law.

While open fields are not be protected by the Fourth Amendment, the curtilage, or outdoor area immediately surrounding the home, is. Courts have treated this area as an extension of the house and as such subject to all the privacy protections afforded a person’s home (unlike a person's open fields) under the Fourth Amendment.

Answer 2

Yup, looks like the sheriffs were good in this case, although their methods may seem distasteful. Open fields doctrine says this sort of thing is OK---which, although it is useful, I've always been generally horrified by it. If there had been a dwelling on the property that the shed was close to, it could have been considered "curtilage" and therefore off-limits (outbuildings generally are, if they're close to the home), but not in this case.

The link is a detailed explanation of the case law and why it's so.

Answer 3

I say no. The second they climbed that fence they violated his expectation to privacy. Anything seen could not be used in court. It would be fruit of the poisonous tree. However, they could have this info in their own heads and use it to work another way...

Their best bet would have been to snoop around making sure there was only one way in and out of that place. Once that's determined, they just set up on him and wait for him to leave there someday. A nice VC violation, they smell the grain alcohol or better yet, weed, they can articulate that they know there to be moonshining operations in the area and they have him. Easy as pie.

EDIT.....The open field deal is news to me. Kinda scary really. If I FENCED off my property, like this question suggested, and posted it, I would have that expectation of privacy. I think the fence issue changes things KC.

Answer 4

How about this...

The officers say they smelled marijuana. Now they have probable cause to enter. The find the shack with the still and the marijuana. They then confiscate all the illegal materials. Now, regardless of whether or not the case is actually prosecuted, those materials will never be returned.

No 4th amendment violation, or search warrant necessary.

Answer 5

no, if they were chasing a suspect or had some probable cause such as a tip from someone they can but no judge would no grant that search warrant for fear of being overturned on appeal.

Answer 6

under the open fields doctrine, they have right to scale the fence and search the field. anything found in the field or in view from the field, is admissable

Answer 7

KCV is 100% correct!

Answer 8

huh who cares ive made moonshine in my bathtub, i dont know why people make such a huge deal about.