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From: BTR1701 <atropos@mac.com>
Newsgroups: rec.arts.tv
Subject: Re: "Open fields" doctrine
References: <v2iju7$mhk3$1@dont-email.me> <atropos-5BC912.11453721052024@news.giganews.com> <v2itlk$nu3u$2@dont-email.me>
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In article <v2itlk$nu3u$2@dont-email.me>,
 "Adam H. Kerman" <ahk@chinet.com> wrote:

> 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?

It may not exclude evidence, but it doesn't immunize the cop from being 
charged with trespassing.

Just like if a cop kicks in Bob's door and searches his house without a 
warrant and finds evidence against Mike, the exclusionary rule wouldn't 
apply because Mike's 4th Amendment rights weren't violated. Bob's were 
but he's not on trial. Mike is. However, that won't keep the cop from 
being charged with trespassing, breaking and entering, and burglary/home 
invasion for kicking Bob's door.