I Learn Something New Every Day

[thatguyoverthere]

Maybe some of you knew about this practice already; I did not. I just learned about it from this article (linked at the bottom). I have not researched it, so I don't know how accurate it is. But the way many of the courts have been for the last 50 years or more, it sounds about right.

So, if you have acreage, beware that this activity might theoretically be possible on your property. You might at least want to do a little more reading on the subject.

Added for clarity: BTW, this is talking about surveillance taking place on and from within private property, not "from the street."

Here are a few quotes from the article. Pretty eye opening. To me, this ranks right up there with the "roadside lotto" (AKA "asset forfeiture"):

No warrants, no judge, and no crime necessary, just set up surveillance and do whatever they want to.

Fourth Amendment protections against “unreasonable searches and seizures” expressed in the Bill of Rights only apply to an individual’s immediate dwelling and curtilage, according to SCOTUS.

In 1924, Hester v. United States set up the Open Fields framework and said the U.S. Constitution does not extend to most land: “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields.”

Further, in 1984, SCOTUS gave additional strength to Open Fields in Oliver v. United States: “open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance.

https://www.agweb.com/article/governmen ... pen-fields

[Paladin]

With as much as they are ignoring the 4th Amendment, I would expect all the ANTIFA and BLM rioter's arrested by now, but I guess sending a TACTICAL team against a farmer for policing up unwanted surveillance equipment on his own land has to take priority

By any definition that surveillance equipment has to be abandoned property... so I don't see how they could expect to use force to recover it???

[wil]

I had heard of this and wasn't sure if it was true or not, evidently it is and it is good to know about.

I didn't see in the articles whether or not the properties were fully fenced and/or posted for trespassing. I've always wondered if that makes a difference owing to physically accessing the property by having to go over a genuine fence which is definitely and properly posted for 'no trespassing'

If they can just walk onto the property and it's not posted, then it's not trespassing until the owner tells them to leave and they fail to do so. That means they can walk onto the property, put up cameras, etc.
And if LE is there for a bonafide reason, then their physical presence is not trespassing, they are there for legitimate LE purposes.

Otherwise within the law if the property is fenced, posted for no trespassing, gates are locked, etc. and there's no immediate physical access then do they have to demonstrate a legal basis for being on the property in the first place? Ie: same as a search warrant?

I'm guessing they would have a pretext or excuse for being there, however at the least a bonafide fence would force them to defend or prove whatever pretext or excuse they'd have in hand.

it does rank right up there with 'roadside lotto"

[Paladin]

From the article:

Windham insists private gates and “no trespassing” signs apply to government officials. “Otherwise the government is saying, ‘Your private land is my public property.’ Terry Rainwaters lives on his property, has a clean hunting record, yet he has to put up with wildlife officers hiding in bushes, ducking behind grass, and covertly recording his movements? By any definition, that is incredibly invasive,” Windham says.

I have to agree with Windham.

[flechero]

WOW! At the bare minimum, that is a gross overreach. Wrong on so many levels.

[thatguyoverthere]

This very limited background info on the Oliver v. United States SCOTUS decision referenced in the article above found on Wikipedia:

Acting upon a tip that defendant was growing marijuana on his property, two Kentucky State Police officers drove onto defendant's land, past his house, up to a gate which was marked with a "no trespassing" sign. The officers left their vehicle and walked along a footpath around the gate onto defendant's property and continued down the road for nearly a mile. At that distance from the house, the two officers spotted a large marijuana crop on defendant's property. The defendant was later charged with drug offenses for this cultivation.

So a search on private property with no search warrant. No emergency; no exigent circumstances; not looking for a lost child or anything like that. LE knowingly drove onto private property. Drove past the house on the private drive that was on private property. Got out of their vehicle and walked around a closed, locked gate with a "No Trespassing" sign attached, on private property. No search warrant; just acting on a "tip" from an informant (who was most likely trying to weasel out of his own jam). And SCOTUS says that's all A-OK because the 4th Amendment only applies to the the house and immediate yard area.

So again, if I'm understanding all this right, as referenced here and in the information from the original post above, not only can the government surveille your property (and people and activities thereupon) from a public roadway, or from the air, they can also physically come onto your fenced & gated, marked private property, without a search warrant, at any time they desire, for any reason or NO REASON, and look for, or at, anything or anybody they want to, except for in your house and immediate yard area.

So if you have a few acres and a lib neighbor who hates your freedom-loving guts, just know that one phone call from them to a slightly curious LEO can apparently LEGALLY allow said LEO(s) to freely poke around your private property. Personally, I'm not doing anything illegal and I don't have anything to hide. But I still find that "loophole" to be surprising, and also HIGHLY offensive!

Yep, I'm 66 years old. And still learn something new every day. My, oh my...

[srothstein]

The open fields exception to the 4th Amendment is a long standing exemption, as described above. It is just one of many long standing exceptions that most of the public is not aware of. There are some interesting limits to this exception and at least one of the cases described may have run afoul of the limits.

First, there is the question of trespassing. Thanks to Lon Horiuchi, among others, we know that the SCOTUS will allow federal officers to be charged in criminal court for violating state laws. The immunity granted for federal officers stems from the Supremacy clause, and says states may not interfere with the operation of the federal government. But the actions taken by the federal officer must be reasonable and reasonably related to his performance of his duties. So, federal officers may cross a fence line to search an open field for a marijuana growth area in most cases. But state officers do not have the same immunity to trespass laws. There it would depend on state laws. Criminal Trespass laws in Texas do apply to peace officers with one notable exception. Section 12.103 of the Parks and Wildlife Code allows game wardens (and other designated TPWD employees) to enter on private property IF it is a location where wild game or fish range or stray. There are also limits on what they can do with information they receive.

The other area of question on this is exactly what is the open field and what is the curtilage. Entering into the curtilage of the house is still illegal. If I have a 160 acre plot of land and my house is in the exact center of it, how much land is the curtilage? The curtilage is usually defined as that part of the land that is used in the every day activities of living. It would include the house and any outbuildings close to it like a barn or chicken coop. While there is no rule on how close to the house the barn must be, I doubt a court would include the barn and the land between it and the house if it were in the corner of the 160 acres while the house was in the center. If it were just 100 feet away, it would include it, but as we get farther out, it becomes more questionable. I think that putting cameras up to spy on the house would infringe on the curtilage rule and be held illegal. If you only have a five acre plot of land, I think the whole five acres would be considered curtilage and not open fields.

There are two other exceptions that many people do not understand. I strongly suggest people read up on abandoned property and plain view doctrine exceptions. When you are done reading that, look for the difference between an inspection and a search. You might be surprised at those (unless you have been boating).

The end result of this is my reminder that the 4th Amendment does not forbid ALL searches or seizures without a warrant. It only forbid UNREASONABLE searches and seizures. If the government (at any level) can convince a court that any specific search was reasonable, then it is allowable under the 4th Amendment.