P Joe
Well-known member
Oldtimer said:
I agree 100% with everything that you said. I thing I see is the landowners who are out for just money taking advantage of this situation and making things worse for everyone.
SD westriver lockout- OVER??
- Thread starter Southdakotahunter
- Start date
I agree 100% with everything that you said. I thing I see is the landowners who are out for just money taking advantage of this situation and making things worse for everyone.
Badlands
Well-known member
OK, thanks for the clarification, oldtimer.
I thought you might put something in there, but I didn't want to drag you into it if you weren't a willing participant.
Badlands
I thought you might put something in there, but I didn't want to drag you into it if you weren't a willing participant.
Badlands
Jinglebob
Well-known member
Against my better judgement, I will respond to this. Even tho' I said I wouldn't. Again, I am only capatalizing to make it easier to read and not hollering or even mad. Just frustrated. AND THIS WILL BE MY LAST POSTING ON THIS SUBJECT.
:xP Joe said:
P Joe
Well-known member
Well that is to bad that you feel so bitter towards well everyone.
You don't have to let anybody hunt. I am fine with that, but why not just do that yourself. Why sign and be part of the lock out, when that group is after more than just that. To me, you concerns have nothing to do with the main group and all you are doing is giving them support. Support to a group that doesn't excatly want what you might.
What are the advantages of signing and being part of the lock out for you as the landowner? So far they haven't been able to accomplish anything. Some time that group is going to have to come to the bargaining table to settle this. And they are unwilling to budge even a little bit to close the open field doctorine. It is an all or nothing type of deal. I would think that you and LB and the others who feel the same way would have better luck getting that done with out having the other proposals of the lock out group. GF&P was willing to meet that request if the other 2 or 3 issues were dropped. They wouldn't do it. So I don't understand why you stay with the lock out when you don't want excatly what they do.
And I'll tell you what, if you ever have to many deer, let me know and I can be you sharp shooter
I even take you out for a steak dinner when we are done :lol:
Honestly though, one rule on the ranch where we use to hunt was, nothing under a 8 pointer could be shot, and if you shot a buck, a doe was to be shot also. We didn't have to shoot the doe first, but very few years did I not bring 2 deer home. and the ones where I only brought one home it was a doe. And you right I would rather not pay to hunt. I would rather bring you somthing that you could use that you probably would never buy on your own than give you cash.
You don't have to let anybody hunt. I am fine with that, but why not just do that yourself. Why sign and be part of the lock out, when that group is after more than just that. To me, you concerns have nothing to do with the main group and all you are doing is giving them support. Support to a group that doesn't excatly want what you might.
What are the advantages of signing and being part of the lock out for you as the landowner? So far they haven't been able to accomplish anything. Some time that group is going to have to come to the bargaining table to settle this. And they are unwilling to budge even a little bit to close the open field doctorine. It is an all or nothing type of deal. I would think that you and LB and the others who feel the same way would have better luck getting that done with out having the other proposals of the lock out group. GF&P was willing to meet that request if the other 2 or 3 issues were dropped. They wouldn't do it. So I don't understand why you stay with the lock out when you don't want excatly what they do.
And I'll tell you what, if you ever have to many deer, let me know and I can be you sharp shooter
I even take you out for a steak dinner when we are done :lol: Honestly though, one rule on the ranch where we use to hunt was, nothing under a 8 pointer could be shot, and if you shot a buck, a doe was to be shot also. We didn't have to shoot the doe first, but very few years did I not bring 2 deer home. and the ones where I only brought one home it was a doe. And you right I would rather not pay to hunt. I would rather bring you somthing that you could use that you probably would never buy on your own than give you cash.
Liberty Belle
Well-known member
You never started any mess for me.
You may have noticed from other threads that old Happy-go-lucky and Southdakotahunter have me in their sights for the way I feel about GF&P and USFW policies.
Lucky for me they're just shooting blanks.
A
Anonymous
Guest
P Joe
I too am not really happy with the pay to hunt idea...Watching too many places closed to everyone except the very wealthy that can come in and pay thousands of dollars for 1-3 day pheasant hunts and multi thousands of dollars for a few days to get a buck deer...Especially when every landowner in the state helps to raise those animals...
But I do think that the states need to recognize the cost and do more to cover these costs to the landowner of these animals that the outfitters and the state coffers are making big money off from...Its one of the reasons I like Montana's Block Management Program- it leaves the wildlife available to the public- while still paying a portion (altho small) of the game damage and hunter damage cost back to the landowner...I think and hope the program will continue expanding as its working quite well- I'd love to keep the hunter heritage alive...If not- eventually all the private land will be available only to the very wealthy for hunting- either by them straight out buying the land, which they've been doing while inflating land values way above Ag production availability- or by outfitters leasing it and charging high fees- usually to out of state hunters....
I too am not really happy with the pay to hunt idea...Watching too many places closed to everyone except the very wealthy that can come in and pay thousands of dollars for 1-3 day pheasant hunts and multi thousands of dollars for a few days to get a buck deer...Especially when every landowner in the state helps to raise those animals...
But I do think that the states need to recognize the cost and do more to cover these costs to the landowner of these animals that the outfitters and the state coffers are making big money off from...Its one of the reasons I like Montana's Block Management Program- it leaves the wildlife available to the public- while still paying a portion (altho small) of the game damage and hunter damage cost back to the landowner...I think and hope the program will continue expanding as its working quite well- I'd love to keep the hunter heritage alive...If not- eventually all the private land will be available only to the very wealthy for hunting- either by them straight out buying the land, which they've been doing while inflating land values way above Ag production availability- or by outfitters leasing it and charging high fees- usually to out of state hunters....
Liberty Belle
Well-known member
Oh, but we have accomplished plenty. No one hunts on our land and no game warden trespasses on our land to check on hunters that aren't there.
Explain this statement. Who is going to make us come to what bargaining table to settle what? You've lost me completely here.
Well, at least you got this right. We aren't budging until the legislature passes a law doing away with the Open Fields Doctrine. Protecting our property rights from abuse by GF&P or anyone else IS an all or nothing deal for us.
Where did you hear that GF&P was willing to drop the Open Fields Doctrine if landowners would drop other issues?
Sec. Cooper of GF&P stated at a South Dakota Stockgrowers meeting in Belle Fourche that he would never compromise on the Open Fields Doctrine, it is only landowners who have to compromise.
Give us some details about what you heard. Obviously one of us doesn't know what transpired and I don't think it's me.
Liberty Belle
Well-known member
Thanks Oldtimer and I feel the same way you do about mandatory ID. If someone wants to use microchips and test for BSE on their own, that's fine with me, but I don't want big brother telling me what to do whether it's IDing my cows or giving up my property rights.
P Joe
Well-known member
Oldtimer said:
I do beleive that something like the block management program was suggested in SD, but the west river working group wouldn't hear of it because it still involved allowing GF&P to come on their land to check hunters.
I see some of these guys points. Especially if the GW travels across their land to check to see if hunting is occuring. That is no different than trespassing to me.
BUT, this would be just one hypothetical situation. If a GW had seen a person shoot 6 deer while that said GW was on a public road, land, whatever, I don't see a problem with the GW walking out to talk to that guy to see if all is legite.
Also many of these ranchers do have BLM or school trust land that is in the middle of their ranch. Public land which every SD resident has a right to hunt, fish or do whatever one pleases on. And their is an easement for access to each of these places. Some ranchers have even blocked access to that as well.
P Joe
Well-known member
Liberty Belle said:
Just how many meetings have you gone to that GF&P have put on?
Your right one of us doesn't know what has transpired, and it seems like I am the one always having to provide you with information. The GF&P website use to and maybe still does have the meeting minutes on it.
I would thing that if you were serious about protecting your rights so you could allow hunting again that you would be working with GF&P to get them protected!
Liberty Belle
Well-known member
You've got that one right. It IS trespassing.
If the Open Fields Doctrine had been done away with by passing SB 122 the game warden would have been able to enter private property without the permission of the property owner if he had reasonable suspicion or probable cause to believe that a crime had been committed. Read the copy of the bill that I am posting for you and tell me how it would have interfered with the game warden carrying out his duties while still protecting the property owner from abuse by GF&P.
Could you tell us which rancher blocked access to either BLM or state school land to hunters? If they have, which I doubt, the landowner broke the law.
Lots of them, including almost all of the Working Group meetings. I have attended every meeting held on the west side of the river and several in Pierre. The minutes of the meetings they post on their website are only a small part of what transpires at those meetings.
How many meetings have you attended?
GF&P are trying to take away our private property rights and have been working against landowners in other areas besides the property rights issue! What gives you the idea that they want to help us protect anything? GF&P is what we need protection from, not the other way around. Haven't you been paying attention?
Happy go lucky
Well-known member
GF&P are trying to take away our private property rights and have been working against landowners in other areas besides the property rights issue! What gives you the idea that they want to help us protect anything? GF&P is what we need protection from, not the other way around. Haven't you been paying attention?
Like sands in the hour glass these are the days of our lives :roll: :roll: :roll: .
What Facts do you have to back these claims? Please list them for all to see the abuse you claim.
LB they wouldn't need your bill on probable cause as they are sworn in law enforcement and fall under that as being law enforcement and have the same power as your police,sherriff etc.
Like sands in the hour glass these are the days of our lives :roll: :roll: :roll: .
What Facts do you have to back these claims? Please list them for all to see the abuse you claim.
LB they wouldn't need your bill on probable cause as they are sworn in law enforcement and fall under that as being law enforcement and have the same power as your police,sherriff etc.
Liberty Belle
Well-known member
Both the sheriff and the police are sworn to uphold the law and neither of them can investigate any crime they think may have been committed on my land unless they have either a search warrant, reasonable suspicion, or probable cause. What makes you think the deer police should have more power than our duly elected sheriff?
Heck, the highway patrolman can't even search your car unless he has probable cause to believe you may have committed a crime. He can't go digging through your glove box or your trunk just because he wants to.
Our government is a government of laws and every one of us is bound by those laws, even law enforcement officers. The United States Constitution was written to protect the American people from our government and property rights are one of the paramount rights granted to us by that venerable document. Maybe you have a problem with the language used by our founders, but I'm very grateful they had the foresight to protect our liberties.
Heck, the highway patrolman can't even search your car unless he has probable cause to believe you may have committed a crime. He can't go digging through your glove box or your trunk just because he wants to.
Our government is a government of laws and every one of us is bound by those laws, even law enforcement officers. The United States Constitution was written to protect the American people from our government and property rights are one of the paramount rights granted to us by that venerable document. Maybe you have a problem with the language used by our founders, but I'm very grateful they had the foresight to protect our liberties.
Happy go lucky
Well-known member
Lb if you read you will see it is not just CO's who have the power of open fields as these cases have laid out it is all law enforcement. The Supreme court cases are about other law enforcement not CO's.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Summary
The fourth amendment can be broken down into 2 distinct parts. The first part provides protection against unreasonable searches and seizures, although historically there have been myriad ways in which unreasonable searches were remedied. Modern jurisprudence has afforded the police officers an incentive to respect the amendment.
The second section of the amendment provides for the proper issue of warrants. When warrants are issued, there must be probable cause. Probable cause is tested using the "totality of circumstances" test as defined in Illinois v. Gates, 462 U.S. 213 (1983).
Another way to bifurcate the amendment is to see that one part deals with physical arrests and force by the state (police) and the other part deals with searching and seizing the person's effects: home and personal property
Reasonable expectation of privacy
Not every incident where an officer ascertains information is considered a "search." An officer who views something which is publicly viewable (for instance, by looking through the window of a house from the street) is not conducting a "search" of the house. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that there is no search unless an individual has an "expectation of privacy" and the expectation is "reasonable"—that is, it is one that society is prepared to recognize. So, for example, there is generally no search when officers look through garbage because there is no expectation that garbage is private (see California v. Greenwood, 486 U.S. 35 (1988)). Similarly, there is no search where officers monitor what phone numbers an individual dials (Smith v. Maryland, 442 U.S. 735 (1979), although Congress has placed statutory restrictions on such monitoring). This doctrine sometimes leads to somewhat unexpected results; in Florida v. Riley, 488 U.S. 445 (1989), the Supreme Court ruled that there was no expectation of privacy (and thus no search) where officers hovered in a helicopter 400 feet above a suspect's house and conducted surveillance.
The Supreme Court has also ruled that there can be no expectation of privacy in illegal activity. Therefore, investigations that reveal only illegal activity (such as some use of drug sniffing dogs) are not searches.
Searches and seizures without warrants
A warrant is not necessary for a search or seizure under certain circumstances. Officers may search and seize objects that are in "plain view." Before the search and seizure, however, the officers must have probable cause to believe that the objects are contraband.
Similarly, "open fields"—pastures, open water, woods and other such areas—may be searched without a warrant, on the basis that the individuals conducting activities therein had no reasonable expectations of privacy. Contrary to its apparent meaning, the "open fields" doctrine has been expanded to include almost any open space other than the land immediately surrounding a domicile (for instance, in Oliver v. United States 466 U.S. 170 (1984), the police ignored a "no trespassing" sign, trespassed onto the suspect's land without a warrant, followed a path several hundred yards, and discovered a field of marijuana. The Supreme Court ruled that no search had taken place.
There are also "exigent circumstances" exceptions to the warrant requirement-for instance, if an officer reasonably believes that a suspect may destroy evidence, he might be permitted to seize the evidence without a warrant.
The Supreme Court has also held that individuals in automobiles have a reduced expectation of privacy, because vehicles generally do not serve as residences or repositories of personal effects. Vehicles may not be randomly stopped and searched; there must be probable cause or reasonable suspicion of criminal activity. Items in "plain view" may be seized; areas that could potentially hide weapons may also be searched. With probable cause, police officers may search any area in the vehicle. They may not, however, extend the search to the vehicle's passengers without probable cause to search those passengers.Under common law, a police officer could arrest an individual (arrests constitute seizures, at least for the purpose of the Fourth Amendment) if that individual committed a misdemeanor in the officer's presence, or if the officer had probable cause to believe that the individual committed a felony. The Supreme Court has applied the common law rule in American jurisprudence. The officer in question must have had probable cause before making the arrest; evidence discovered after the arrest may not be retroactively used to justify the arrest.
The person must also be under arrest to allow a search to be relevant. A person merely detained, such as someone pulled over for a traffic stop, is not "under arrest"; once the traffic ticket is written there is no right to search without permission as no further search could possibly provide any additional evidence regarding the stop. A search without permission after a speeding ticket was written that discovered marijuana was determined to be unlawful under these conditions. Knowles v. Iowa, 525 US 113 (1998)
Another common law rule—that permitting searches incident to an arrest without warrant—has been applied in American law. The justification for such a search is that the arrested individual must be prevented from destroying evidence or using a weapon against the arresting officer. In Trupiano v. United States, 334 U.S. 699 (1948), the Supreme Court held that "a search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest." In United States v. Rabinowitz, 339 U.S. 56 (1950), the Court reversed its previous ruling, holding that the officers' opportunity to obtain a warrant was not germane to the reasonableness of a search incident to an arrest. The decision suggested that any area within the "immediate control" of the arrestee could be searched, but it did not define the term. In deciding Chimel v. California, 395 U.S. 752 (1969), the Supreme Court elucidated its previous decisions. It held that when an arrest is made, it is reasonable for the officer to search the arrestee for weapons and evidence. Similarly, it was held that it is reasonable for the officer to search the area within the arrestee's immediate control, that is, the area from which the defendant may gain access to a weapon or evidence. A search of the room in which the arrest is made is therefore permissible, but the same is not true of a search of other rooms, as the arrestee would not probably be able to access weapons or evidence in those rooms at the time of arrest.
A further exception is the border exception.
The reasonable grounds standard is further applied to searches of homes of individuals on probation. This is to be contrasted with the homes of individuals on parole, who are often required as a condition of that parole to permit searches of their houses or apartments.
It has been held that searches in public schools require neither warrants nor probable cause. (See New Jersey v. T. L. O., 468 U.S. 325 (1985)). It is merely necessary that the searching officers have reasonable grounds for believing that the search will result in the finding of evidence of illegal activity. Government offices may be searched for evidence of work-related misconduct by government employees on similar grounds. Searches of prison cells are subject to no restraints relating to reasonableness or probable cause; neither are searches conducted at the border (the "border search exception") (see United States v. Ramsey, 431 U.S. 606 (1977); United States v. Montoya de Hernandez, 473 U.S. 531 (1985); United States v. Flores-Montano, 541 U.S. __ (2004)) or searches undertaken as a condition of parole (see Samson v. California, 546 U.S. __ (2006). Finally, a search is reasonable if the target without coercion consents to the search, even if the target is unaware and not told about their right to refuse to cooperate.
Conditions of searches
In general, a few things have been established. First, in an instance where a person has not been arrested and a search must be conducted in an area where a person has a reasonable expectation of privacy, law enforcement officials are required to gain permission from an arbiter, i.e. the courts, in order to be allowed to search someone. It is, for example, unlawful to force someone to undergo surgery to uncover incriminating evidence because that would interfere with the privacy of the human body. The application of this has been vague, however. Under HIPAA, for example, federal agents are allowed to search medical records through administrative subpoenas, which do not require court approval.
Also, the courts have established that in certain cases, probable cause is not necessary in order to conduct a search. If a police officer suspects you may present a threat to others, he has the right to frisk you on reasonable suspicion (see Terry v. Ohio, 392 U.S. 1 (1968)). If you are driving drunk, you are likewise open to be searched on reasonable suspicion. In the case of random drug tests, no probable cause must be established in order to force you to be tested.
More
pen fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Id at 179.
So under this evaluation the determination of whether an unreasonable search has occurred will turn on whether the questioned activity takes place in an open field.
An "open field" as defined by the Oliver court is any area "out of doors in fields, except in the area immediately surrounding the home." Id at 178. The area immediately surrounding the home is also sometimes referred to as the "curtilage." Courts have treated this area as an extension of the house and so subject to all the privacy protections afforded a person's home under the Fourth Amendment. United States v. Dunn, 480 U.S. 294, 300 (1987). The U.S. Supreme court has stated the factors used to determine whether a particular area of land is within the "curtilage" as follows:[T]he Fourth Amendment protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. We identified the central component of this inquiry as whether the area harbors the intimate activity associated with the sanctity of a man's home and the privacies of life. Id.
This means that the determination of whether an area is an "open field" requires that it must not be within the "curtilage" of a home and that what area encompasses the "curtilage" will be determined on a case by case basis looking at whether that area "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life."
United States v. Dunn, 480 U.S. 294 (1987)
Drug Enforcement Agents began investigating the defendant when he purchased large quantities of chemicals used in the production of illegal drugs. The officers then witnessed the defendant placing these chemicals in a barn on his private ranch. The ranch was completely encircled by a perimeter fence, and contained several interior barbed wire fences, including one around the house approximately 50 yards from the barn, and a wooden fence enclosing the front of the barn, which had an open overhang and locked, waist-high gates. Without a warrant, officers crossed the perimeter fence, several of the barbed wire fences, and the wooden fence in front of the barn. They were led there by the smell of chemicals, and, while there, could hear a motor running inside. They did not enter the barn but stopped at the locked gate and shined a flashlight inside, observing what they took to be a drug laboratory. They then left the ranch, but entered it twice the next day to confirm the laboratory's presence. They obtained a search warrant and executed it, feeding off the remains and arresting respondent, seizing chemicals and equipment, as well as bags of amphetamines they discovered in the house. After the District Court denied defendant's motion to suppress all evidence seized pursuant to the warrant, the defendant was convicted of conspiracy to manufacture controlled substances and related offenses. However, the Court of Appeals reversed, holding that the barn was within the residence's curtilage and therefore within the Fourth Amendment's protective ambit. The Supreme Court overturned the appeals court's decision finding that the barn was outside the curtilage and so all evidence obtained by the officers while standing outside the barn and looking in was acceptable. Looking at whether the barn was inside the curtilage or rather in an open field, the court stated:
[C]urtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a "correct" answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration -- whether the area in question is so intimately tied to the home itself that it should be placed under the home's "umbrella" of Fourth Amendment protection. Applying these factors to respondent's barn and to the area immediately surrounding it, we have little difficulty in concluding that this area lay outside the curtilage of the ranch house. Id at 301.
United States v. Burton, 894 F.2d 188 (6th Cir.), cert. denied, 498 U.S. 857 (1990)
Acting on information that the defendant was cultivating marijuana, two Kentucky State Police, without a search-warrant, entered onto defendant's farm. In order to enter the property the two officers climbed over two series of fences which had "No Trespassing" signs posted all around them. Upon discovering large quantities of marijuana being grown, the defendant was arrested and charged with four drug related counts. The defendant was convicted of a lesser included offense, of which he appealed challenging that his Fourth Amendment rights had been violated. The Court of Appeals upheld the conviction, stating that the case was too factually similar to the Supreme Court's ruling in Oliver to justify exclusion of the evidence. The Court of Appeals stated:
The only difference between the cases is that here the police climbed over a fence and a locked gate, whereas in Oliver, the officers went around a locked gate. Given the cited language from Oliver it is evident that this distinction is not of constitutional significance. The same is true of Burton's claim that the police entry onto his land constituted a trespass under Kentucky State law. The Supreme Court, in Oliver, addressed this issue, in the identical context of Kentucky law, observing in the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment. Id at 191
United States v. Pace, 955 F.2d 270 (5th Cir.), cert. denied¸ 502 U.S. 883 (1992)
Acting on a tip, Texas investigators, entered onto defendant's property and peeked through a hole in a barn where they discovered marijuana being cultivated. With this information the officers gained a search-warrant, which they used to search the property. The defendant was eventually arrested, tried and convicted for possession with intent to distribute. The defendant challenged on Fourth Amendment grounds, claiming that the barn was inside the "curtilage" of his home. The court found that it was not and that the search was legal pursuant to the "open fields' doctrine. The court held that the search was constitutional and that the barn was not within the curtilage of appellant's home because the barn was located a significant distance from the house, was separated from the house by an interior fence, was not being used for activities associated with the intimacies of home life, and was readily visible from the surrounding area.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Summary
The fourth amendment can be broken down into 2 distinct parts. The first part provides protection against unreasonable searches and seizures, although historically there have been myriad ways in which unreasonable searches were remedied. Modern jurisprudence has afforded the police officers an incentive to respect the amendment.
The second section of the amendment provides for the proper issue of warrants. When warrants are issued, there must be probable cause. Probable cause is tested using the "totality of circumstances" test as defined in Illinois v. Gates, 462 U.S. 213 (1983).
Another way to bifurcate the amendment is to see that one part deals with physical arrests and force by the state (police) and the other part deals with searching and seizing the person's effects: home and personal property
Reasonable expectation of privacy
Not every incident where an officer ascertains information is considered a "search." An officer who views something which is publicly viewable (for instance, by looking through the window of a house from the street) is not conducting a "search" of the house. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that there is no search unless an individual has an "expectation of privacy" and the expectation is "reasonable"—that is, it is one that society is prepared to recognize. So, for example, there is generally no search when officers look through garbage because there is no expectation that garbage is private (see California v. Greenwood, 486 U.S. 35 (1988)). Similarly, there is no search where officers monitor what phone numbers an individual dials (Smith v. Maryland, 442 U.S. 735 (1979), although Congress has placed statutory restrictions on such monitoring). This doctrine sometimes leads to somewhat unexpected results; in Florida v. Riley, 488 U.S. 445 (1989), the Supreme Court ruled that there was no expectation of privacy (and thus no search) where officers hovered in a helicopter 400 feet above a suspect's house and conducted surveillance.
The Supreme Court has also ruled that there can be no expectation of privacy in illegal activity. Therefore, investigations that reveal only illegal activity (such as some use of drug sniffing dogs) are not searches.
Searches and seizures without warrants
A warrant is not necessary for a search or seizure under certain circumstances. Officers may search and seize objects that are in "plain view." Before the search and seizure, however, the officers must have probable cause to believe that the objects are contraband.
Similarly, "open fields"—pastures, open water, woods and other such areas—may be searched without a warrant, on the basis that the individuals conducting activities therein had no reasonable expectations of privacy. Contrary to its apparent meaning, the "open fields" doctrine has been expanded to include almost any open space other than the land immediately surrounding a domicile (for instance, in Oliver v. United States 466 U.S. 170 (1984), the police ignored a "no trespassing" sign, trespassed onto the suspect's land without a warrant, followed a path several hundred yards, and discovered a field of marijuana. The Supreme Court ruled that no search had taken place.
There are also "exigent circumstances" exceptions to the warrant requirement-for instance, if an officer reasonably believes that a suspect may destroy evidence, he might be permitted to seize the evidence without a warrant.
The Supreme Court has also held that individuals in automobiles have a reduced expectation of privacy, because vehicles generally do not serve as residences or repositories of personal effects. Vehicles may not be randomly stopped and searched; there must be probable cause or reasonable suspicion of criminal activity. Items in "plain view" may be seized; areas that could potentially hide weapons may also be searched. With probable cause, police officers may search any area in the vehicle. They may not, however, extend the search to the vehicle's passengers without probable cause to search those passengers.Under common law, a police officer could arrest an individual (arrests constitute seizures, at least for the purpose of the Fourth Amendment) if that individual committed a misdemeanor in the officer's presence, or if the officer had probable cause to believe that the individual committed a felony. The Supreme Court has applied the common law rule in American jurisprudence. The officer in question must have had probable cause before making the arrest; evidence discovered after the arrest may not be retroactively used to justify the arrest.
The person must also be under arrest to allow a search to be relevant. A person merely detained, such as someone pulled over for a traffic stop, is not "under arrest"; once the traffic ticket is written there is no right to search without permission as no further search could possibly provide any additional evidence regarding the stop. A search without permission after a speeding ticket was written that discovered marijuana was determined to be unlawful under these conditions. Knowles v. Iowa, 525 US 113 (1998)
Another common law rule—that permitting searches incident to an arrest without warrant—has been applied in American law. The justification for such a search is that the arrested individual must be prevented from destroying evidence or using a weapon against the arresting officer. In Trupiano v. United States, 334 U.S. 699 (1948), the Supreme Court held that "a search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest." In United States v. Rabinowitz, 339 U.S. 56 (1950), the Court reversed its previous ruling, holding that the officers' opportunity to obtain a warrant was not germane to the reasonableness of a search incident to an arrest. The decision suggested that any area within the "immediate control" of the arrestee could be searched, but it did not define the term. In deciding Chimel v. California, 395 U.S. 752 (1969), the Supreme Court elucidated its previous decisions. It held that when an arrest is made, it is reasonable for the officer to search the arrestee for weapons and evidence. Similarly, it was held that it is reasonable for the officer to search the area within the arrestee's immediate control, that is, the area from which the defendant may gain access to a weapon or evidence. A search of the room in which the arrest is made is therefore permissible, but the same is not true of a search of other rooms, as the arrestee would not probably be able to access weapons or evidence in those rooms at the time of arrest.
A further exception is the border exception.
The reasonable grounds standard is further applied to searches of homes of individuals on probation. This is to be contrasted with the homes of individuals on parole, who are often required as a condition of that parole to permit searches of their houses or apartments.
It has been held that searches in public schools require neither warrants nor probable cause. (See New Jersey v. T. L. O., 468 U.S. 325 (1985)). It is merely necessary that the searching officers have reasonable grounds for believing that the search will result in the finding of evidence of illegal activity. Government offices may be searched for evidence of work-related misconduct by government employees on similar grounds. Searches of prison cells are subject to no restraints relating to reasonableness or probable cause; neither are searches conducted at the border (the "border search exception") (see United States v. Ramsey, 431 U.S. 606 (1977); United States v. Montoya de Hernandez, 473 U.S. 531 (1985); United States v. Flores-Montano, 541 U.S. __ (2004)) or searches undertaken as a condition of parole (see Samson v. California, 546 U.S. __ (2006). Finally, a search is reasonable if the target without coercion consents to the search, even if the target is unaware and not told about their right to refuse to cooperate.
Conditions of searches
In general, a few things have been established. First, in an instance where a person has not been arrested and a search must be conducted in an area where a person has a reasonable expectation of privacy, law enforcement officials are required to gain permission from an arbiter, i.e. the courts, in order to be allowed to search someone. It is, for example, unlawful to force someone to undergo surgery to uncover incriminating evidence because that would interfere with the privacy of the human body. The application of this has been vague, however. Under HIPAA, for example, federal agents are allowed to search medical records through administrative subpoenas, which do not require court approval.
Also, the courts have established that in certain cases, probable cause is not necessary in order to conduct a search. If a police officer suspects you may present a threat to others, he has the right to frisk you on reasonable suspicion (see Terry v. Ohio, 392 U.S. 1 (1968)). If you are driving drunk, you are likewise open to be searched on reasonable suspicion. In the case of random drug tests, no probable cause must be established in order to force you to be tested.
More
pen fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Id at 179.So under this evaluation the determination of whether an unreasonable search has occurred will turn on whether the questioned activity takes place in an open field.
An "open field" as defined by the Oliver court is any area "out of doors in fields, except in the area immediately surrounding the home." Id at 178. The area immediately surrounding the home is also sometimes referred to as the "curtilage." Courts have treated this area as an extension of the house and so subject to all the privacy protections afforded a person's home under the Fourth Amendment. United States v. Dunn, 480 U.S. 294, 300 (1987). The U.S. Supreme court has stated the factors used to determine whether a particular area of land is within the "curtilage" as follows:[T]he Fourth Amendment protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. We identified the central component of this inquiry as whether the area harbors the intimate activity associated with the sanctity of a man's home and the privacies of life. Id.
This means that the determination of whether an area is an "open field" requires that it must not be within the "curtilage" of a home and that what area encompasses the "curtilage" will be determined on a case by case basis looking at whether that area "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life."
United States v. Dunn, 480 U.S. 294 (1987)
Drug Enforcement Agents began investigating the defendant when he purchased large quantities of chemicals used in the production of illegal drugs. The officers then witnessed the defendant placing these chemicals in a barn on his private ranch. The ranch was completely encircled by a perimeter fence, and contained several interior barbed wire fences, including one around the house approximately 50 yards from the barn, and a wooden fence enclosing the front of the barn, which had an open overhang and locked, waist-high gates. Without a warrant, officers crossed the perimeter fence, several of the barbed wire fences, and the wooden fence in front of the barn. They were led there by the smell of chemicals, and, while there, could hear a motor running inside. They did not enter the barn but stopped at the locked gate and shined a flashlight inside, observing what they took to be a drug laboratory. They then left the ranch, but entered it twice the next day to confirm the laboratory's presence. They obtained a search warrant and executed it, feeding off the remains and arresting respondent, seizing chemicals and equipment, as well as bags of amphetamines they discovered in the house. After the District Court denied defendant's motion to suppress all evidence seized pursuant to the warrant, the defendant was convicted of conspiracy to manufacture controlled substances and related offenses. However, the Court of Appeals reversed, holding that the barn was within the residence's curtilage and therefore within the Fourth Amendment's protective ambit. The Supreme Court overturned the appeals court's decision finding that the barn was outside the curtilage and so all evidence obtained by the officers while standing outside the barn and looking in was acceptable. Looking at whether the barn was inside the curtilage or rather in an open field, the court stated:
[C]urtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a "correct" answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration -- whether the area in question is so intimately tied to the home itself that it should be placed under the home's "umbrella" of Fourth Amendment protection. Applying these factors to respondent's barn and to the area immediately surrounding it, we have little difficulty in concluding that this area lay outside the curtilage of the ranch house. Id at 301.
United States v. Burton, 894 F.2d 188 (6th Cir.), cert. denied, 498 U.S. 857 (1990)
Acting on information that the defendant was cultivating marijuana, two Kentucky State Police, without a search-warrant, entered onto defendant's farm. In order to enter the property the two officers climbed over two series of fences which had "No Trespassing" signs posted all around them. Upon discovering large quantities of marijuana being grown, the defendant was arrested and charged with four drug related counts. The defendant was convicted of a lesser included offense, of which he appealed challenging that his Fourth Amendment rights had been violated. The Court of Appeals upheld the conviction, stating that the case was too factually similar to the Supreme Court's ruling in Oliver to justify exclusion of the evidence. The Court of Appeals stated:
The only difference between the cases is that here the police climbed over a fence and a locked gate, whereas in Oliver, the officers went around a locked gate. Given the cited language from Oliver it is evident that this distinction is not of constitutional significance. The same is true of Burton's claim that the police entry onto his land constituted a trespass under Kentucky State law. The Supreme Court, in Oliver, addressed this issue, in the identical context of Kentucky law, observing in the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment. Id at 191
United States v. Pace, 955 F.2d 270 (5th Cir.), cert. denied¸ 502 U.S. 883 (1992)
Acting on a tip, Texas investigators, entered onto defendant's property and peeked through a hole in a barn where they discovered marijuana being cultivated. With this information the officers gained a search-warrant, which they used to search the property. The defendant was eventually arrested, tried and convicted for possession with intent to distribute. The defendant challenged on Fourth Amendment grounds, claiming that the barn was inside the "curtilage" of his home. The court found that it was not and that the search was legal pursuant to the "open fields' doctrine. The court held that the search was constitutional and that the barn was not within the curtilage of appellant's home because the barn was located a significant distance from the house, was separated from the house by an interior fence, was not being used for activities associated with the intimacies of home life, and was readily visible from the surrounding area.
Southdakotahunter
Well-known member
Happy, im sure after LB reads your last post, she will have nothing to say.
(ya, right!)
it kind of shoots down all her arguments.
(ya, right!)
it kind of shoots down all her arguments.
Liberty Belle
Well-known member
Golly, I'm sorry I've been neglecting you two. I guess you've been missing me, huh? I've been a little short of time since my election to public office and have had to start doing the people's business. Property rights has been one of the subjects discussed at length with the other legislators I will be serving with. Isn't that enough to give you two nightwares? :twisted:
Okay, you guys, show me where in any of these cases you list here there wasn't either reasonable suspicion or probable cause? Both of which would have made it legal for the game warden to pursue under SB122.
Show me where the game warden is allowed to come driving across my pastures, out of sight from the highway, on the off chance he might find a wrong-doer when he has no previous knowledge or any suspicion that some crime may have been committed.
Just because you, as a hunter, are walking across my land, wearing orange and carrying a rifle during hunting season is NOT reasonable suspicion that you are breaking the law and a game warden driving across my private property to check you out is trespassing. That's why those of us in the lockout don't allow hunting because we refuse to be a party to the violation of our property rights.
Why do you think that because we object to anyone, game warden or private citizen, trespassing on our land without permission we must be guilty of some crime? Do you think everyone automatically commits crimes when no one is watching? I think that gives us some insight into the kind of people you really are.
Now, don't get your knickers in a knot if I don't get on here very often. I haven't forgotten you and when I get time, you can be sure we'll visit again.
Okay, you guys, show me where in any of these cases you list here there wasn't either reasonable suspicion or probable cause? Both of which would have made it legal for the game warden to pursue under SB122.
Show me where the game warden is allowed to come driving across my pastures, out of sight from the highway, on the off chance he might find a wrong-doer when he has no previous knowledge or any suspicion that some crime may have been committed.
Just because you, as a hunter, are walking across my land, wearing orange and carrying a rifle during hunting season is NOT reasonable suspicion that you are breaking the law and a game warden driving across my private property to check you out is trespassing. That's why those of us in the lockout don't allow hunting because we refuse to be a party to the violation of our property rights.
Why do you think that because we object to anyone, game warden or private citizen, trespassing on our land without permission we must be guilty of some crime? Do you think everyone automatically commits crimes when no one is watching? I think that gives us some insight into the kind of people you really are.
Now, don't get your knickers in a knot if I don't get on here very often. I haven't forgotten you and when I get time, you can be sure we'll visit again.
P Joe
Well-known member
Here is my reply
Umm no, I will not list names, but you must live in la la land if you had no idea that had happen. I think you need to leave you own little world once in a while and see what happens beyond your driveway.
All of the east river ones. I don't feel I need to travel to the west river ones.
You'll never let anybody hunt again because you can't get over you sterotype of GF&P. Nothing will ever get better with the attitude you've taken. But hey, I'm just some east river flatlander that has no idea what goes on past the river.
Umm no, I will not list names, but you must live in la la land if you had no idea that had happen. I think you need to leave you own little world once in a while and see what happens beyond your driveway.
All of the east river ones. I don't feel I need to travel to the west river ones.
You'll never let anybody hunt again because you can't get over you sterotype of GF&P. Nothing will ever get better with the attitude you've taken. But hey, I'm just some east river flatlander that has no idea what goes on past the river.
Happy go lucky
Well-known member
Lb nice play on words, an investigation is not probable cause, private eyes investigate,CO's investigate,police and sherriffs also. To investigate can lead to the next step being probable cause but in itself is not, so that is why these cases went in front of the courts, they found the probable cause after the fact!!!!!
Also:Acting on a tip, Texas investigators, entered onto defendant's property and peeked through a hole in a barn where they discovered marijuana being cultivated. With this information the officers gained a search-warrant, which they used to search the property.
CO's get many tips calls in many states. A tip is not probable cause, you investigate to see if the informan thas merit.
Please re read this part !!!!
Not every incident where an officer ascertains information is considered a "search." An officer who views something which is publicly viewable (for instance, by looking through the window of a house from the street) is not conducting a "search" of the house. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that there is no search unless an individual has an "expectation of privacy" and the expectation is "reasonable"—that is, it is one that society is prepared to recognize. So, for example, there is generally no search when officers look through garbage because there is no expectation that garbage is private (see California v. Greenwood, 486 U.S. 35 (1988)). Similarly, there is no search where officers monitor what phone numbers an individual dials (Smith v. Maryland, 442 U.S. 735 (1979), although Congress has placed statutory restrictions on such monitoring). This doctrine sometimes leads to somewhat unexpected results; in Florida v. Riley, 488 U.S. 445 (1989), the Supreme Court ruled that there was no expectation of privacy (and thus no search) where officers hovered in a helicopter 400 feet above a suspect's house and conducted surveillance.
This being the main body and power ALL law enforcement has!!!Similarly, "open fields"—pastures, open water, woods and other such areas—may be searched without a warrant, on the basis that the individuals conducting activities therein had no reasonable expectations of privacy. Contrary to its apparent meaning, the "open fields" doctrine has been expanded to include almost any open space other than the land immediately surrounding a domicile (for instance, in Oliver v. United States 466 U.S. 170 (1984), the police ignored a "no trespassing" sign, trespassed onto the suspect's land without a warrant, followed a path several hundred yards, and discovered a field of marijuana. The Supreme Court ruled that no search had taken place.
The whole issue is about illegal search on private property the courts decided in "open fields" no search takes place out there so no laws are being broken. That is what the courts are telling you.
open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance.
Also:Acting on a tip, Texas investigators, entered onto defendant's property and peeked through a hole in a barn where they discovered marijuana being cultivated. With this information the officers gained a search-warrant, which they used to search the property.
CO's get many tips calls in many states. A tip is not probable cause, you investigate to see if the informan thas merit.
Please re read this part !!!!
Not every incident where an officer ascertains information is considered a "search." An officer who views something which is publicly viewable (for instance, by looking through the window of a house from the street) is not conducting a "search" of the house. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that there is no search unless an individual has an "expectation of privacy" and the expectation is "reasonable"—that is, it is one that society is prepared to recognize. So, for example, there is generally no search when officers look through garbage because there is no expectation that garbage is private (see California v. Greenwood, 486 U.S. 35 (1988)). Similarly, there is no search where officers monitor what phone numbers an individual dials (Smith v. Maryland, 442 U.S. 735 (1979), although Congress has placed statutory restrictions on such monitoring). This doctrine sometimes leads to somewhat unexpected results; in Florida v. Riley, 488 U.S. 445 (1989), the Supreme Court ruled that there was no expectation of privacy (and thus no search) where officers hovered in a helicopter 400 feet above a suspect's house and conducted surveillance.
This being the main body and power ALL law enforcement has!!!Similarly, "open fields"—pastures, open water, woods and other such areas—may be searched without a warrant, on the basis that the individuals conducting activities therein had no reasonable expectations of privacy. Contrary to its apparent meaning, the "open fields" doctrine has been expanded to include almost any open space other than the land immediately surrounding a domicile (for instance, in Oliver v. United States 466 U.S. 170 (1984), the police ignored a "no trespassing" sign, trespassed onto the suspect's land without a warrant, followed a path several hundred yards, and discovered a field of marijuana. The Supreme Court ruled that no search had taken place.
The whole issue is about illegal search on private property the courts decided in "open fields" no search takes place out there so no laws are being broken. That is what the courts are telling you.
open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance.
Liberty Belle
Well-known member
My dear Happy, you're right, an investigation is not probable cause, however, the instances that you site ARE "reasonable suspicion", which is also an exception from trespass in SB122. Go back and read the bill I posted CAREFULLY!
In Oliver v. US the POLICE, not the game warden, had a reasonable suspicion to suspect drug activity. However they had no evidence so they searched the land outside of the curtilage.
The excerpts I will post below, from you posting above!, were all instigated by tips and that means "reasonable suspicion".
What sort of crimes do you think all these ranchers out here are committing anyway? I'd sure appreciate an answer to this question.
You'll have plenty of time to answer because I'm going to be gone for the next few days. I appreciate you guys giving me the opportunity to talk about this issue and I just want you to know that I'm not ignoring you. :twisted:
In Oliver v. US the POLICE, not the game warden, had a reasonable suspicion to suspect drug activity. However they had no evidence so they searched the land outside of the curtilage.
The excerpts I will post below, from you posting above!, were all instigated by tips and that means "reasonable suspicion".
Now tell me again how a game warden can legally trespass on private property if he has no "reasonable suspicion" or "probable cause", it isn't during hunting season, and he hasn't bothered to get the landowner's permission to come on their property, nor has he notified them that he was coming, all of which happened in Harding County, I might add.
What sort of crimes do you think all these ranchers out here are committing anyway? I'd sure appreciate an answer to this question.
You'll have plenty of time to answer because I'm going to be gone for the next few days. I appreciate you guys giving me the opportunity to talk about this issue and I just want you to know that I'm not ignoring you. :twisted:
P Joe
Well-known member
Liberty Belle said:
Because you had 1 game warden that was a dick. And Cooper protected him thru the open field dotorine because they were tight. It was a bullshit move on his part. I really think that you could have won the case in the US supreme court.
But the ranchers that are out for shutting down hunting to support their pay hunts brainwashed the ranchers that are really out for property rights into thinking the world is falling and here we have it. One big mess.
I can't wait till Cooper is retired. Then maybe all of this will disappear. But I'm sure people will come up with another way to argue.