A legal question about police search w/out a warrant.

Ok this comes from watching Roswell so don’t be thinking that there is some legal crisis or anything but…
Suppose a police officer wants to search a tent? The tent is on public ground and is not zipped closed.

Can he do it without a warrant?

If it was zipped up would it make a difference?

Thanks

Zebra

I think there is an expectation of privacy in the zipped up, totally closed tent. I would think that this is about equal to a car on a public road. If a cop can see into the tent, and sees evidence of an illegal act (oh, let’s say they have a mirror with several little piles of white powder in plain sight), that would be probable cause for a search. But, since the tent cannot be driven off and don’t have toilets through which to flush away the evidence , the proper thing to do would be to detain the suspected cokeheads until a warrant can be obtained (or the suspected cokeheads consent to a search).

In order to search without a warrant, the officer must have Probable Cause. If he stops a car and sees something in plain sight in the car, that can be his probable cause to search. If he’s walking down the street and passes your house, and your front door is open, and he can clearly see several dead bodies inside, that’s probable cause to search. Same with a zipped-open tent.

[sub]IANAL[/sub]

A warrantless search is presumptively unreasonable. It would fall to the government to show that the search fell within clearly delineated exceptions to the Fourth Amendment requirement for a search.

A tent on public ground does not carry with it the same expectation of privacy as a home - but, if someone is camped out in it, there is a certain reasonable expectation of privacy.

Assuming there are no exigent circumstances that require an immediate warrantless search, and assuming no inculpatory material is in plain view, a search of the tent would probably be illegal.

Specific facts can change this general determination. If the tent appeared on public ground not normally used for tents – say, the front lawn of City Hall – that a different story than a tent on public campgrounds.

  • Rick

::a slight hijack question::

Can cops with a warrant just bust down your door without knocking first?

::thanks::

Well… the busting down of your door counts as a really loud knock :smiley:

LOL…but you see the problem is if they knock down my door with the first knock. I don’t get the chance to say, “who is it?” I know by looking at’em it is the guys in blue with the guns and badges to take me away. Oh no.

And I don’t the chance to say, “I don’t want any of what ya’ll got!” :smiley:

Varies from jurisdiction to jurisdiction. I think that the U.S. Constitution allows knockless searches with a warrant. We did cover this in law school, but it’s not practically relevant to me as where I live we have state constitution issue, so it’s faded to the back of my mind. I’m sure someone will correct me if I’m wrong.

In NYC, the state court’s have determined that the NY state constitution affords greater protection than the U.S. one in this regard. As for a knockless warrant in NY, you must ask the judge for it, and you must show a need, such as fear evidence will be destroyed, risk to the police officers, etc., you must knock first.
Second, and this one is plain silly IMO, if you want to execute or serve a warrant after sundown, you must ask for a “nighttime” warrant from a judge, and again show a need why you can’t wait until the next day.

Sua

There are two circumstances under which a warrantless search of a tent is justified:

  1. Exigent Circumstances. If the police suspect that a crime is in progress or a person is in imminent danger, an emergency exemption is granted. It thereafter falls upon the prosecution to demonstrate that such conditions existed at the time of the search.

  2. Illegal Occupancy. If the police have proof that the occupant of the tent is in residence illegally (i.e. trespassing), then no search warrant is necessary. In other words, if you place a tent on property believing that it is proper, appropriate, and legal to do so, you are granted every reasonable expectation of privacy, whether the tent is zippered closed or not. Interestingly, the documents I found mentioned zippered and unzippered tents, as well as those tents with mesh windows. If the officer can see into the tent, and a crime is in progress, again, no search warrant is necessary.

In most situations, if you have a resonable expectation of privacy, an officer needs a search warrant.

Here are some appeals from Indiana and Colorado which cite relevant case law:
http://www.state.in.us/judiciary/opinions/archive/070203.jjr.html
http://www.state.co.us/gov_dir/pdef_dir/Library/Schafer/Case%20No.%2097SA142-Schafer.htm

No knock searches are allowable under US Law. They are generally issued for high risk searches, i.e. a known felon, a cache of weapons, et cetera. They’re quite controversial. Since, it’s off-topic, I won’t bother with cites - Search google for “no-knock search warrant”. You’ll get plenty of results.

Let’s not forget “Search incident to an arrest.” If you are sitting in a tent and you get arrested for some reason or other, the officer can subsequently search the tent :smiley: .

A tent is your “home”, in most cases, and thus a warrent is req’d.

Re: the OP, depends on a few other issues: is the tent occupied or not at the time, who is searching/inspecting (a police officer in a state park ? or the park ranger ?), what kind of public lands are we talking about (National Forest or National Park, and where within ?)…, when the search was conducted (say, a hunting area in-season), and of course, just how intense was the search/inspection (the mirror in the tent example above, or opening up a closed briefcase within the tent ?)

Richards v. Wisconsin (U.S. 1997) says that the Fourth Amendment usually, but not always, requires the police to knock and announce themselves before attempting a forcible entry. A “no knock” entry is justified when the police have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime. But a reasonable suspicicion has to be based on specific, articulable facts, so the mere fear that the bad guy might flush a few kilos down the toilet isn’t going to cut it.

As for the OP, I am unaware of any Fourth Amendment cases specifically addressing whether the requirement of a warrant applies to tents. As a general rule, only dwellings and business locations require warrants before they may be searched. Anywhere else, most especially including cars in public places, require only probable cause. Tents strike me as a gray area, since they’re similar to homes or hotel rooms (which require warrants), but would seem to have a reduced expectation of privacy. As Jorge suggests, any determination is likely to require a lot of factual inquiry.

Tents fall under the legal definition of “dwelling”, whether permanent or temporary, they’re equivalent to an apartment or home.

You got a cite for that, or are you just expressing a belief?

There are no lawyers that have seen the episode of Roswell in question? Anyway, as long as you guys are answering questions about searches: is the government liable for damages incurred in a search? For instance, if they knock down my door, can I demand that they buy me a new one? Or can they say “tough shit, that’s life”? Is the issue of whether or not a conviction results relevant?

No idea about damages, Ryan. ISTR a resident who got shot and killed (preacher? Chicago?) 5-10 years ago when the cops busted down the door at the wrong address, and ISTR that damages were paid in that instance. That’s an extreme example, obviously.

My best guess is that as long as the warrant is properly issued and executed in good faith, the police are not likely to be responsible for any damages to the home. Laws will vary from state to state, of course. I’ve certainly never seen any federal constitutional law on the subject.

Oh picky, picky :slight_smile:

The definition can vary slightly from state to state and with the zoning laws of communities. Nonetheless, here is a representative example from http://hsba.org/members/ica/15549.HTM

Also, from a site on jury instruction http://www.juryinstruction.com/50_toc_vol_7.htm

Here’s the decision from the US 9th Circuit Court of appeals regarding searches of tents in US v. Sandoval: UNITED STATES v. SANDOVAL | FindLaw

The relevant facts are as follows:

here’s a pretty good list of relevant cases pertaining to Search and Seizure from a student’s list of resources at http://ourworld.compuserve.com/homepages/wachtel/Crim_Invest/crim_invest.html You can view each case at http://caselaw.lp.findlaw.com/

Submitted for your perusal.

On the subject of excessive force:

On the subjective of compensatory damages for illegal searches:

The conclusion I draw from these sources is that a municpality is not liable for bodily harm that may come to a person during a search. The city is liable if damages should occur to property if the search was warrantless or otherwise illegal. Apparently, officers are also on the hook in both situations. (They’re the ones breaking and smashing things).

All this stuff is way off-topic though.

Damn, evilhanz, when someone asks for a cite, you don’t mess around, do you?