Police Trespass

[JBusch8899]

The following link is to a very good, 14 page writing, upon the police, and trespass. It contains an abundant number of citations to support the arguments presented.

http://le.alcoda.org/publications/point_of_view/files/police_trespassing.pdf

I provided the first page to view.

POLICE TRESPASSING

​

“The Fourth Amendment prohibits unreasonable searches and seizures, not trespasses.”1

Law enforcement officers regularly walk and drive onto private property. It happens so often it’s hardly noteworthy. Although some might call it “trespassing,” to most people it’s insignificant, a nonevent.

Sometimes, however, it turns into a big deal—like when officers see something that results in a search or an arrest. Maybe they’ll trip over a marijuana plant, or happen to see the residents sitting around the kitchen table packaging heroin or cleaning their rocket launchers. In any event, evidence discovered as the result of an entry onto private property will be suppressed if the officers’ entry constituted an illegal “search.”

It might seem crazy to think of walking or driving onto private property as a “search.” But it is—at least under certain circumstances. What are those circumstances? And when is such a search lawful? These are the questions we will answer in this article.

Before we start, it should be noted that there are two kinds of trespassing: criminal and “technical.” The criminal variety is trespassing that is unlawful, such as occupying real property, or refusing to leave after being requested to do so by the owner.2 This is not the type of trespassing that officers are likely to do. Even when they refuse an owner’s request to leave, their continued presence is hardly ever a criminal trespass because it’s usually justified under some exception to the warrant requirement.

On the other hand, officers routinely commit technical or “common law” trespassing, which is simply walking or driving onto private property without the owner’s permission.3 Although technical trespassing is not unlawful,4 it’s the type of trespassing that is most likely to constitute a “search.”

Finally, in this article the word “curtilage” in used in a few places. It’s a word from the common law which, for our purposes, simply means the private property immediately surrounding a home; e.g., the front, back, and side yards.5
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1 Cohen v. Superior Court (1970) 5 Cal.App.3d 429, 434.
2 See Penal Code §§602(l), 602(n).
3 See Oliver v. United States (1984) 466 US 170, 183; People v. Manderscheid (2002) 99 Cal.App.4th 355, 361; People v. Zichwic (2001) 94 Cal.App.4th 944, 953; People v. Macioce (1987) 197 Cal.App.3d 262, 271.
4 See People v. Camacho (2000) 23 Cal.4th 824, 836 [“Since Katz, [the U.S. Supreme Court has] consistently held that the presence or absence of physical trespass by police is constitutionally irrelevant to the question whether society is prepared to recognize an asserted privacy interest as reasonable.” Quoting from California v. Ciraolo (1986) 476 US 207, 223 [dis.opn. of Powell, J.]; Oliver v. United States (1984) 466 US 170, 183, fn.15; United States v. Karo (1984) 468 US 705, 712-3 [“The existence of a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated.”]; People v. Edelbacher (1989) 47 Cal.3d 983, 1015; People v. Zichwic (2001) 94 Cal.App.4th 944, 953-6; People v. Manderscheid (2002) 99 Cal.App.4th 355, 361. NOTE: Many people believe that entering property without the owner’s consent is a criminal trespass but it isn’t unless the person enters with intent to dispossess the rightful owner. See People v. Wilkinson (1967) 248 Cal.App.2nd Supp. 906, 910 [“It is not a violation of Penal Code section 602, subdivision (l) to enter private property without consent unless such entry is followed by occupation thereof without consent.”].
5 See Oliver v. United States (1984) 466 US 170, 180 [“At common law, the curtilage is the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life, and therefore has been considered part of the home itself for Fourth Amendment purposes.”]; California v. Ciraolo (1986) 476 US 207, 212-3 [“The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to

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[Denny347]

Pretty good article (read the whole thing). It is all pretty much common sense stuff, no revelations in there. This is the kind of stuff taught in the academy...constitutional stuff. Sometimes they are forgotten if not used (like anything else I guess) and the legal remedies kick in. Never hurts to refresh yourself now and then, keeps the brain moving. Thanks for the link.

 

[JBusch8899]

Pretty good article (read the whole thing). It is all pretty much common sense stuff, no revelations in there. This is the kind of stuff taught in the academy...constitutional stuff. Sometimes they are forgotten if not used (like anything else I guess) and the legal remedies kick in. Never hurts to refresh yourself now and then, keeps the brain moving. Thanks for the link.

You're quite welcome.

Unfortunately, there are the few on the board that will dispute every bit of information therein contained, despite the legal cites.

 

[E5RANGER375]

the only legal court rulings that intrest me, are SCOTUS rulings. lower courts always foam un-constitutional driblings from their mouths. even then, SCOTUS has and will make mistakes. all that realy matters is whos left standing at the end of the day because they had more money behind them. you have to buy your freedom in this country anymore if you want it. SAD

 

[wtfd661]

So why is it posted in General Firearms Discussion

 

[DeadeyeChrista'sdad]

Because EVERYTHING ELSE is. And I'm quite OK with that.

 

[JBusch8899]

So why is it posted in General Firearms Discussion

None of the other discussion boards fit, save perhaps the Break Room, and this topic is a bit over the top for that venue.

 

[jmb79]

the only legal court rulings that intrest me, are SCOTUS rulings. lower courts always foam un-constitutional driblings from their mouths. even then, SCOTUS has and will make mistakes. all that realy matters is whos left standing at the end of the day because they had more money behind them. you have to buy your freedom in this country anymore if you want it. SAD

I am sorry that you have been so misinformed as to actually believe what you have written.

 

[E5RANGER375]

I am sorry that you have been so misinformed as to actually believe what you have written.

then please correct my misinformation, if you are enlightened on the subject.

 

[JBusch8899]

the only legal court rulings that intrest me, are SCOTUS rulings. lower courts always foam un-constitutional driblings from their mouths. even then, SCOTUS has and will make mistakes. all that realy matters is whos left standing at the end of the day because they had more money behind them. you have to buy your freedom in this country anymore if you want it. SAD

I am sorry that you have been so misinformed as to actually believe what you have written.

then please correct my misinformation, if you are enlightened on the subject.

All judicial opinion should be of interest, as SCOTUS regularly denies certiorari to a majority of petitions filed for appeal. Therefore, such law applied by the multitude of lower courts, stand.

Sadly, E5Ranger is almost entirely correct in his assessment of those with the most cash, have the most resources to affect the outcome of a verdict. This, however, is the exact rationale why such organizations as the NRA, ACLU, GOA, ACLJ, et al exist; despite the dogma and motivations of the leadership within such organizations.

 

[E5RANGER375]

All judicial opinion should be of interest, as SCOTUS regularly denies certiorari to a majority of petitions filed for appeal. Therefore, such law applied by the multitude of lower courts, stand.

Sadly, E5Ranger is almost entirely correct in his assessment of those with the most cash, have the most resources to affect the outcome of a verdict. This, however, is the exact rationale why such organizations as the NRA, ACLU, GOA, ACLJ, et al exist; despite the dogma and motivations of the leadership within such organizations.

I think you understood exactly what i was trying to say. thanks.

you could be innocent of something, but found guilty in a lower court and not have enough money to take it to the next level where you would have been found innocent.

 

[spirit390]

As my grandaddy used to say life is a crap sandwhich the more bread you have the less crap you have to eat. Sad but true