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.
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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