Ok, your neighbor lives 300 yards through the woods (it’s a straight shot and there aren’t many trees) and he is into astrology, he is also a major narcotics cop in your county. He takes his telescope one night and aims it over at your house and all of a sudden, he sees ten to twenty suspected pot plants growing and you hitting a bong on the couch in your home.
He goes into work the next morning and wants to get a warrant to raid your pad.
What would take place? Would he get one? Would he have to lie to get a warrant? What are the laws regarding a cop “accidentally” obtaining information that can be held against you?
I’m sure he would lie and say an informant bought weed from you or something. I would also guess that they would be the same as if he legally took a look in your windows and got a warrant, but I wanted to know for sure. What if he were an honest cop and told the judge how he found the plants?
Well, I think the problem would lie in whether or not he actually told the judge that he new that you were growing pot because he read it in his horoscope. I’m pretty sure that no judge would be persuaded to issue a warrant strictly on that basis.
I don’t see the problem here. He was ‘stargazing’, and in the process of aiming his telescope, he spotted the plants in question.
If the plants were in such a location as to be visible from several hundreds of yards away, I don’t think he’s going to have a problem securing a warrant.
The Supreme Court held in Kyllo v United States that the use of thermal imaging to detect abnormal heat in a suspect’s house was an unreasonable search and violated the fourth amendment. Cite KYLLO V. UNITED STATES
However the ruling hinged on the technology not being publicly available, clearly telescopes are widely available. I’d suspect the cop could be forthright in his affidavit and still get the warrant.
IANAL and my fire investigation class was long ago but…
Generally speaking if he saw the illegal material or activity while standing somewhere/doing something he is allowed to do it would be admissible.
Example, he knocks on your front door, you open it, and behind you are a dozen 6’ tall marijuana plants. He does not need a warrant, he was on the porch, you opened the door, they are in plain view.
If telescopes count as circumventing plain view I do not know…paging Bricker
You’re very adept at seeing both sides of an argument, but are still quick to point out the fallacies inherent in other people’s ways of thinking. You are proud of your critical thinking ability, but rarely show it for fear of social ostracism. You must be a Taurus. Good things will happen to you this month, dear Taurus, if you keep an open mind and try not to step directly in front of speeding Metro buses.
You’re going to have to be more explicit in the point you’re making neutron star.
I think you’re essentially making the point made by the dissent, but I’m not sure why you’re doing so since the dissent does a pretty good job of it. To wit:
It is possible that the cop may not need a warrant or they might be able to obtain a warrant immediately.
It all depends on the Fourth Amendment…
…and then how probable cause and reasonable suspicion are in defined in that jurisdiction or interpreted by the cop and/or the preciding judge. Prior history also influences reasonable suspicion.
In the situation you're describing, the cop's behavior is not illegal or a violation on your privacy since the criminal activity in question is in plain view. A judge may decide the search is inadmissible in court, and a violation of your Fourth Amendment rights if they deem there was insufficient probable cause or reasonable suspicion. Although, I wouldn't bet on this eventuality.
BTW any neighbour walking their dog, a person walking by, kids playing, etc. could report what they see and the warrant could be issued, without predudice.
First off, as posed in the OP, I do not think the officer would require a warrant. This sounds like “plain view” in which case the officer can go in and seize the marijuana and arrest the pot head.
Wiki cites the following although I cannot find support for #2:
As a citizen I have to say the notion allowing the police to essentially peer in my windows disconcerting. The “inadvertent” requirement was tossed in Horton v. California so as long as the police are legally wherever they are they can peek in my windows and bust me? Using binoculars or a telescope?
