Re: Wildlife agents need warrants to place cameras on private property (was: Fourteenth and a half amendment: Warrantless searches of two PA hunt clubs by game wardens upheld at trial court)

In article <3bf74jpgrplt5f9fhm48ti792hg28i7hr4@4ax.com>,
 shawn <nanoflower@notforg.m.a.i.l.com> wrote:

On Tue, 14 May 2024 11:07:19 -0700, BTR1701 <atropos@mac.com> wrote:
 

In article <v2061t$9ndt$1@dont-email.me>,
"Adam H. Kerman" <ahk@chinet.com> wrote:
>

Another Steve Lehto video also touching on the open fields doctrine.
This federal doctrine goes back to the 1920s (Lehto incorrectly says 1930)
that police may enter upon private land to conduct a warrantless search in
specific circumstances in which the land is an open field. Typically, to
search the interior of a building or structure, a warrant is required,
and there is lesser protection against warrantless search on the
curtilage, the portion of the land used to approach and enter the
building. I cannot follow this doctrine at all. One is allowed to walk
up to the front door of a building to knock, seeking entry, without
committing trespass. If the area is fenced and restricted, then I
suppose curtilage is the approach to the gate. There might be evidence
of a crime that requires no warrant to obtain, but just because it's
curtilage doesn't allow police to seek evidence that's not in plain
sight.
 
What's I've never understood is, wherever the curtilage boundary is, how
can the rest of the land be open field if it's the front yard of a
building and it's not a field of any kind?

>
I've always wondered how far this 'authority' to go on private property
extends. It's one thing for a wildlife cop to hop a fence and plant a
camera while you're not there, but what if you're out and about on your
land and come across one of these guys in the act? Do you have the
authority as the property owner to say get the hell out of here? I mean,
you would if it was any other trespasser, but do these guys have the
legal right to remain on your land even if confronted by the property
owner who tells them to leave?
>
And what about the cameras? If I'm out in the woods on my land and I
find some spy camera stuck to a tree that I didn't put there and that I
don't want there, am I legally obligated to leave it there? Can I take
it down? If not, can I turn it so that it points at the ground? Can I
put a sock over it? What does the law say about that and how can it
possibly be consistent with the 4th Amendment?

 
Wasn't that an issue that got raised with someone finding a tracking
device on their vehicle that had been placed by some police or federal
officer. I can't recall if what the person was allowed to do with it.

It was a guy in Indiana that found a sheriff's tracker on his car. He
didn't know what it was and removed it and just put it on a shelf in his
garage. When the sheriff's department realized that the tracker wasn't
reporting any movement for days on end, they deduced what must have
happened and got a warrant to search the guy's house to retrieve the
tracker, at which point they charged him with theft of government
property.

They seemed to be arguing that they have a right to track you and if you
do anything to impede their tracking, you've committed a crime. So if
you discover the GPS tracker on your car and you leave it in place but
just start using other vehicles to get around-- have your friend come
pick you up, borrow your girlfriend's car, etc.-- they can charge you
with a crime for thwarting their surveillance of you. Using that logic,
if you became aware of the tracker and left it in place and just stopped
going places that are incriminating, they could charge you with a crime
for depriving them of evidence to use against you.

Seems like the best move if you find something like this and want to
take it off is drive your car to the local cop station, then take it off
in the presence of an officer and hand it to him.

Let's see them make a theft case on that. (Unless they're not claiming
the guy stole the *device*; maybe they're claiming he stole the car's
future movement data from them.)

Certainly they should be allowed to remove it. Can they junk it or
sell it? If not, then why not. It's not like there is going to be a
"Return to the offices of the FBI" sign on the device.

They really did seem to be bootstrapping the equivalent of an
obstruction charge in the Indiana case by implying that if you become
aware the government is surveilling you, anything you do to thwart it is
a crime.

If they were physically following you around, like we used to do before
all this GPS stuff came along, and you noticed the tail, I wonder, would
it be a crime to alter your route and destination accordingly? You see
the tail and instead of going to your drug deal as planned, you text
your supplier "We're burned" and just go to the movies instead. Crime or
no crime?

I'm also curious how they planned to meet the intent element of the
crime.

To obtain a conviction for theft of government property under these
circumstances, the state would have to prove that:

(1) He knew what it was. An unmarked little black box stuck to the
underside of a vehicle could be anything; and

(2) He knew that it didn't belong to him. A person could reasonably
claim that he didn't know what it was and he just assumed it was
something that came with the car and therefore thought it belonged to
him as the owner of the car; and

(3) That he knew it was the government that put it there pursuant to a
valid warrant. As the government's lawyer admitted, it would not be
theft if he'd removed a tracker that had been put there by another
citizen. So a person could reasonably claim that they thought it was put
there by a rival 'businessman', or a private detective, or a jealous
girlfriend. Unless it's labeled "Property of Warrick County Sheriff's
Office"-- which it almost certainly would not be-- then it seems like
the state would have a bitch of a time proving the elements of the crime.

The same would be true of a property owner finding cameras mounted on
trees on his property. How would he know who put them there and why? For
all he knows it's some weirdo trying to spy on him or something.

In any event, the state constitution overrides portions of the open
fields doctrine.
 
https://www.youtube.com/watch?v=3Z1DQtQ-ALY
 
This case was decided under the Tennessee constitution which has greater
protection against warantless searches than the federal constitution.
 
Landowners sued because state game wardens entered private property to
place wildlife camera hoping to catch violations of state hunting laws.
They have the power to do so under state law (whether or not the
landowner posted no trespassing signs) but the landowners have
privacy protection in the state constitution if they taken steps to
assert control with no trespassing signs or fencing.
 
Lehto was skeptical that game wardens had no time to obtain a warrant to
place the cameras. I suggest it's because they couldn't articulate
reasonable suspicion.

>
That's the not the standard for a warrant. You have to be able to
articulate probable cause, which is a higher bar to clear than
reasonable suspicion.

 
One would think they aren't just going out and placing these cameras
randomly. So they've either heard or been told of people shooting (and
presumably hunting) on the land. As that's the only reason I can see
them deciding to place the cameras on that land. Which would suggest
that , at least in the case of someone reporting the shooting/hunting,
that there was time to get a warrant.

Except they need more than just, "Your honor, hunting has been reported
to be occurring on the property" to get a warrant.

Hunting is legal. To get a warrant you need probable cause that a crime
is being committed.