Re: "Open fields" doctrine

BTR1701 <atropos@mac.com> wrote:

"Adam H. Kerman" <ahk@chinet.com> wrote:

Recently, I started two different threads that addressed issues related
to warrantless search and seizure. Other related concepts are the
exclusionary rule and the extent to which this applies in criminal
matters or certain civil matters as well. Furthermore, is there a
relationship between warrantless search and seizure and the law of
trespass?

The "plain view" doctrine wasn't at issue in these situations because
the contraband or building code/zoning violation wasn't obvious without
the trespass.

In one thread, the landowner lost on appeal. He had no expectation of
privacy from drone overflights gathering evidence of code violations in
a situation in which the landowner had previously agreed to comply with
code but had never agreed to continuing inspections.

In another thread, the landowner won a partial victory in which state
game wardens could not trespass to place wildlife cameras hoping to
catch hunting violations.

Where does the landowner have an expectation of privacy? Where the
"open fields doctrine" applies, he has no expectation of privacy.

But a landowner does still have legal dominion and control over the
property, so while he may not have a right to privacy in those open
fields, he does have the legal right to evict trespassers as he finds
them. So if he comes across a cop trespassing on his land, while he may
not have a privacy or 4th Amendment claim against the cop, he does have
the legal right to tell him to get the hell off his land.

How does the exclusionary rule apply? In Oliver, police were allowed to
ignore the fence, locked gate, and No Trespassing signs. They were
committing unlawful trespass but the evidence was not excluded.

Does a lawful order to leave the property and don't come back exclude
evidence?

If police have done something illegal to obtain evidence, evidence is
not excluded unless there was a violation of the expectation of privacy
or another civil rights violation of the defendant.

I don't see that the decision in Oliver would have been different if
police were ordered off the property the day before, complied, then
returned the next day to resume the warrantless search.

The evidence still wouldn't have been excluded.

What if police conduct the search under Oliver, find evidence, then
return with a search warrant? Now they have probable cause as the Oliver
decision allows them to use evidence despite the illegal trespass.