Legal Q regarding Open Fields Doctrine

[jtgain]

http://en.wikipedia.org/wiki/Open_fields_doctrine

The courts have held that if a police officer trespasses on your open field, you have no 4th amendment remedy as an open field is not a "person, house, paper, or effect." But it is a trespass, so is there ANY remedy for the property owner?

Example: I'm growing marijuana, killing cats, or mopering in my open field (hidden from plain view by stalks of corn). A police officer strolls through my open field (thereby trespassing) and finds evidence of my marijuana, cat killing, or moping. I understand that I can't get the evidence suppressed, but can I do anything at all? Civil damages?


***Not a homework question; Crim Pro exam was last Monday, but I've always wondered this throughout the semester. The Prof said he doesn't know..

[ImAShark]

Yeah.

[lawbuff]

Originally Posted by jtgain

http://en.wikipedia.org/wiki/Open_fields_doctrine

The courts have held that if a police officer trespasses on your open field, you have no 4th amendment remedy as an open field is not a "person, house, paper, or effect." But it is a trespass, so is there ANY remedy for the property owner?

Example: I'm growing marijuana, killing cats, or mopering in my open field (hidden from plain view by stalks of corn). A police officer strolls through my open field (thereby trespassing) and finds evidence of my marijuana, cat killing, or moping. I understand that I can't get the evidence suppressed, but can I do anything at all? Civil damages?


***Not a homework question; Crim Pro exam was last Monday, but I've always wondered this throughout the semester. The Prof said he doesn't know..

1st, there has to be a determination of if the police were acting under color of law when they allegedly trespassed. If they were, they are entitled to qualified immunity, as you know, and that is hard to overcome.

If they were not, they could be sued as a private civil tort. From all I have ever read, including this case, if they are in uniform and "purport" to act under color of law, they do.

There was a US SC case around 1964 about an off duty officer arresting a person at some type of carnival, and the Q was, was he acting under color of law when he arrested him, and the answer was yes. It is not listed in the 6th's case though.

Funny you should bring this up, the 6th Circuit just decided a case on whether an officer who punched a defense attorney was acting under color of law. I know you are not in the 6th, but the case law should help.


http://www.ca6.uscourts.gov/opinions...2a1185n-06.pdf


It also mentions a case about an officer working off duty as a private security guard and if he was acting under color of law. I am at the library now, and can not remember the exact citations, but the ALR digest has an entry on when police who are working private security act under color of law when they detain/arrest, etc.

[jtgain]

Originally Posted by lawbuff

1st, there has to be a determination of if the police were acting under color of law when they allegedly trespassed. If they were, they are entitled to qualified immunity, as you know, and that is hard to overcome.

How is this true? Is it not "clearly established" (under Harlow and Anderson) that trespassing is a violation of the law? For this hypothetical, the officer absolutely knew he was on private property at the time, but knew of the open fields doctrine so he was fishing for something.. And yes, he was in full uniform, acting under state authority. I don't see how qualified immunity applies..

[lawbuff]

Originally Posted by jtgain

How is this true? Is it not "clearly established" (under Harlow and Anderson) that trespassing is a violation of the law? For this hypothetical, the officer absolutely knew he was on private property at the time, but knew of the open fields doctrine so he was fishing for something.. And yes, he was in full uniform, acting under state authority. I don't see how qualified immunity applies..

Hasn't the SC though ruled that there is NO expectation of privacy in an open field?

Therefore they have a 4th AM right to be there and search!!

[jtgain]

Originally Posted by lawbuff

Hasn't the SC though ruled that there is NO expectation of privacy in an open field?

Therefore they have a 4th AM right to be there and search!!

But that brings us full circle back to the OP. They are not in VIOLATION of the 4th amendment by being there, but they certainly don't have a 4th amendment RIGHT to be there. Further, they are trespassing: a violation of a clearly established law. I don't see how they could argue qualified immunity.

Surely it's a 14th amendment right, no?

[lawbuff]

Originally Posted by jtgain

But that brings us full circle back to the OP. They are not in VIOLATION of the 4th amendment by being there, but they certainly don't have a 4th amendment RIGHT to be there. Further, they are trespassing: a violation of a clearly established law. I don't see how they could argue qualified immunity.

Surely it's a 14th amendment right, no?

I would argue they ARE acting under color of law, therefore QI applies.


The case law no doubt gives officer's "wide latitude" in the investigation of crimes. I have read case law on that before. Public policy has at it's core that crimes be solved.

The "Clearly established law" doctrine, is not about what a trespass is, but IF the officer violated CEL concerning what they are or aren't entitled to immunity for.

I have read case law that CEL can also be be brought about by a notice to police. Meaning if you send the police a notice that no trespassing is permitted except under operation of law, then that would probably be considered CEL if violated. Does that example help?

[jtgain]

Originally Posted by lawbuff

I would argue they ARE acting under color of law, therefore QI applies.


The case law no doubt gives officer's "wide latitude" in the investigation of crimes. I have read case law on that before. Public policy has at it's core that crimes be solved.

The "Clearly established law" doctrine, is not about what a trespass is, but IF the officer violated CEL concerning what they are or aren't entitled to immunity for.

I have read case law that CEL can also be be brought about by a notice to police. Meaning if you send the police a notice that no trespassing is permitted except under operation of law, then that would probably be considered CEL if violated. Does that example help?

I must be missing something. Do you agree that it is clearly established law that you may not knowingly trespass on a person's property? Forget the 4th amendment here for a little while: You simply may not trespass. Not you, me, or John Q. Law. How would anyone come into court and say, "Gee, your Honor, I didn't know that private property rights existed in this country"?

Yes, I understand that public policy is for resolution of crimes and whatnot, but qualified immunity is for the police officer who didn't predict correctly about what a judge might rule.

If the day before Roe v. Wade was decided, an officer arrested a doctor for performing an abortion, he couldn't be liable for civil damages because the next day the Court decided he was wrong. We have to be fair to men and women who are just doing their jobs in good faith. But trespass? We all know that's wrong...

[lawbuff]

Here is a copy and paste;


Although the Supreme Court has provided occasional guidance on how to determine clearly established law, the circuits have divided on the meaning of that guidance and have adopted a wide range of different legal tests in response to it. For example, the Tenth Circuit below recognized the Circuit’s usual rule that “for a right to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Cortez v. McCauley, 478 F.3d 1108, 1114-15 (10th Cir. 2007) (cited in Callahan, 494 F.3d at 899).

The Seventh Circuit and the Ninth Circuit take a roughly similar approach. In those circuits, courts can consider all relevant caselaw whether from another circuit, a state court, or a district court. See, e.g., Tekle ex rel. Tekle v. United States, 457 F.3d 1088, 1096 (9th Cir. 2006) ("In the absence of binding precedent, we look to whatever decisional law is available to ascertain whether the law is clearly established for qualified immunity purposes, including decisions of state courts, other circuits, and district courts.”); Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir. 2000)


See what I have underlined. Not that they violated a law per se, but has there been prior decisional law that ruled such as "if a landowner posts a no trespassing sign for police, and they still enter outside legal authority, no SW, etc., that is the 14th AM "Notice" that they are trespassing" and are not entitled to QI.

[Saint Cad]

Originally Posted by lawbuff

Hasn't the SC though ruled that there is NO expectation of privacy in an open field?

Therefore they have a 4th AM right to be there and search!!

Wait, I thought that doctrine was if an LEO while off-property sees me doing something illegal in an open field that is private property. I don't think that's the same as an officer tresspassing in my open field and tripping over my cache of illegal weapons.

Originally Posted by lawbuff

See what I have underlined. Not that they violated a law per se, but has there been prior decisional law that ruled such as "if a landowner posts a no trespassing sign for police, and they still enter outside legal authority, no SW, etc., that is the 14th AM "Notice" that they are trespassing" and are not entitled to QI.

Wasn't there another thread where we finally decided that if I put up a sign saying police were not allowed to come on my property unless as a result of their duty, that they are barred from even coming to my door to say hello?

[denquixote]

Don't you have to be able to establish the injury or damages in order to win a civil case for more than the one dollar nominal damage award?

[jtgain]

Originally Posted by lawbuff

See what I have underlined. Not that they violated a law per se, but has there been prior decisional law that ruled such as "if a landowner posts a no trespassing sign for police, and they still enter outside legal authority, no SW, etc., that is the 14th AM "Notice" that they are trespassing" and are not entitled to QI.

I don't have my Lexis in front of me, but there is a case called Hope v. Peltzer which basically states that you can't get too specific when talking about "clearly established" or else nothing is clearly established.

IOW, is there a case on point where a SDMB poster named "lawbuff" (assuming you are a police officer for this hypo) can't come to a home of a poster of the SDMB named "jtgain" and smack him in the face with a riding crop? No? See! It's not clearly established, your Honor! I have qualified immunity!

The Hope v. Pelzer case states that "clearly established" has a much more general applicability. Surely knowing trespass falls in that general applicability, and no "Hereby 14th amendment NOTICE TO POLICE" is required...

[jtgain]

Originally Posted by denquixote

Don't you have to be able to establish the injury or damages in order to win a civil case for more than the one dollar nominal damage award?

I would argue that section 1983 gives me the right for statutory damages under the law for a violation of my civil right not to be deprived, under color of law, of my property under due process (5th amendment). The amount of those statutory damages to be set by the jury. I'm not arguing $1 common law trespass damages. I'm arguing 14th amendment.

[lawbuff]

Originally Posted by jtgain

IOW, is there a case on point where a SDMB poster named "lawbuff" (assuming you are a police officer for this hypo) can't come to a home of a poster of the SDMB named "jtgain" and smack him in the face with a riding crop? No? See! It's not clearly established, your Honor! I have qualified immunity!

That would fall under assault and the 4th AM, QI does not protect assault as described, CEL does not necessarily mean as you describe or I described.

Assault is assault, period. Of course we are talking about deliberate assault, not where there is a question of resisting arrest, etc, and the force used.

QI would not protect me.

[lawbuff]

Originally Posted by Saint Cad

Wasn't there another thread where we finally decided that if I put up a sign saying police were not allowed to come on my property unless as a result of their duty, that they are barred from even coming to my door to say hello?

Yes there was. If I put a no trespassing sign up for police, absent a SW, PC, etc., they can not enter my land to look in my open fields, etc., then they can not.

Simply because the 4th permits open fields to be searched without a warrant, my SIGN is notice that they may not enter under that premise.

If they want to view them, they can fly overhead, my AIRSPACE is not protected.