# If a cop illegally spots marijuana growing in a house, can he get a warrant? **URL:** \ **Category:** Factual Questions\ **Created:** [December 24, 2008, 6:13am UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516 "2008-12-24T06:13:03Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Spezza](https://avatars.discourse-cdn.com/v4/letter/s/a698b9/32.png) [@Spezza](https://boards.straightdope.com/u/Spezza)\ **Post date:** [December 24, 2008, 4:39pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/21 "2008-12-24T16:39:54Z")
In Canada I am nearly certain that the cop would easily be able to obtain a warrant. Like others have mentioned, the reason is that the illegal activity was in _plain view_. Nothing special, usual, or illegal was required to detect the illegal activity. I don’t even see why a warrant would be needed (though, just to minimize legal complications, obviously one would be preferred). If the cop walks up to your door and can plainly see a grow-op through the window… Lesson learned is: don’t do illegal things in plain view. Oh, and because I just happened upon [this](http://nevergetbusted.com/kopbusters/index.php) today… basically, the cops can and will do anything they want. The courts may eventually strike down their summary judgments, but that doesn’t mean you don’t get screwed. ---
**Author:** ![diggleblop](https://avatars.discourse-cdn.com/v4/letter/d/ac91a4/32.png) [@diggleblop](https://boards.straightdope.com/u/diggleblop)\ **Post date:** [December 25, 2008, 1:05am UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/22 "2008-12-25T01:05:22Z")
When I say, “in plain view” I meant it as in, the pot can only be seen by him using his telescope. For instance, you live on a wood edge and the only way he can see into the BACK of your house (absent walking up to your house and peeping Tom’ing into your windows) is to use his telescope. Let’s also say that, his house is the only one around yours for miles. The plants are only in plain view within his telescope when he spots them and there is no other way to say he was using his telescope and accidentally saw them because your house is behind his view of the sky, so he would have to literally turn the telescope around and look into YOUR house illegally. I know I should have said that, because as always with this site, every thing and every aspect of every question is nitpicked to death on here. The majority of you got what I was asking and I appreciate it. For the smart asses, why didn’t I say that to begin with? Well, I should not have to write a book and cover every single base to suit you. 🙂 ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [December 25, 2008, 1:27am UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/23 "2008-12-25T01:27:29Z")
It’s not clear that that matters. If the cop wasn’t trespassing anything he can see with a telescope (or binoculars) appears to be fair game. I don’t think he needs to come up with much of a reason, but of course, IANAL. From the same link below: > [@](#): > > In Horton v. California 496 U.S. 128 (1990), the court eliminated the requirement that the discovery of evidence in plain view be inadvertent. Previously, “inadvertent discovery” was required leading to difficulties in defining “inadvertent discovery.” The three-prong Horton test requires the officer to be (1) lawfully present at the place where the evidence can be plainly viewed, (2) the officer must have a lawful right of access to the object, and (3) the incriminating character of the object must be “immediately apparent.”[2] ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 25, 2008, 10:50am UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/24 "2008-12-25T10:50:44Z")
> [@diggleblop](#): > > Let’s also say that, his house is the only one around yours for miles. The plants are only in plain view within his telescope when he spots them and there is no other way to say he was using his telescope and accidentally saw them because your house is behind his view of the sky, so he would have to literally turn the telescope around and look into YOUR house illegally. But you’re assuming that this is illegal. What’s the basis for saying this is illegal conduct by the officer? ---
**Author:** ![Melkor28](https://avatars.discourse-cdn.com/v4/letter/m/d26b3c/32.png) [@Melkor28](https://boards.straightdope.com/u/Melkor28)\ **Post date:** [December 25, 2008, 1:05pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/25 "2008-12-25T13:05:14Z")
I don’t know if I agree with the general consensus of the posters. There is a slim chancer your going to “accidentally” look into a house while stargazing with a Telescope. You would have to be snooping, which seems like invading a persons privacy. I think it would depend on the judge issuing the warrent; and the judge hearing the case might turn it over if issued. I think it is definatly inveading a person’s privacey. I have a telescope, and have used it now and again. Even if your stargazing at a low object, say Venus; while focusing, if you came across a house, you would clear away, and re- acquire your target. If you see the house and decide to look in anyway, that is snooping, and an invasion of privacy IMOHO. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 25, 2008, 2:26pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/26 "2008-12-25T14:26:07Z")
it may be snooping, but is it illegal? that has to be the initial stage of the legal analysis to answer the OP’s question. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [December 25, 2008, 2:48pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/27 "2008-12-25T14:48:32Z")
Something can be illegal because it violates international law, the Constitution, a federal law, a state constitution, a state or local law, or because it makes the actor subject to civil liability. Most posters have addressed themselves to the US Constitution, since this is a hypothetical not about any particular jurisdiction. Using a telescope to look for evidence of illegal activity in a person’s house from an area where the officer is legally allowed to be is entirely constitutional under the US Constitution. That’s not opinion; it is clear from the case law. It could in theory violate one of the other sources of law mentioned–most likely a state constitution or a state privacy law. Some states have invasion of privacy laws that can be used against people like paparazzi, but usually not in this kind of scenario, and I would guess that they all contain exceptions for law enforcement. Alaska’s constitution has a privacy section, so there may be additional protections in that state as well. In states without medical marijuana laws, he most certainly could get a warrant upon this information. In a state where growing was legal under some circumstances, it could conceivably be more complicated. In California, there’s a sort of dual regime. If you’re properly registered, you’re supposed to be free from arrest or seizure, which presumably also means freedom from searches based on belief that you’re growing. You can also avoid conviction (but not arrest/seizure) even if you’re not registered if you have the proper documents from a doctor. I would guess that a cop has to check the registration database before obtaining a warrant upon seeing a marijuana plant, but I’m not sure. ---
**Author:** ![greatshakes](https://avatars.discourse-cdn.com/v4/letter/g/58956e/32.png) [@greatshakes](https://boards.straightdope.com/u/greatshakes)\ **Post date:** [December 25, 2008, 3:23pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/28 "2008-12-25T15:23:56Z")
IANAL, but I think that what he was doing was not illegal. The cop, that is. I read somewhere, don’t remember, but if anybody has binoculars, they can look through any windows, and not get into trouble, as long as they are within the confines of their own house (property?). Don’t know how this ties into the ‘without technology’ biz, tho. greatshakes ---
**Author:** ![mmmiiikkkeee](https://avatars.discourse-cdn.com/v4/letter/m/edb3f5/32.png) [@mmmiiikkkeee](https://boards.straightdope.com/u/mmmiiikkkeee)\ **Post date:** [December 25, 2008, 3:33pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/29 "2008-12-25T15:33:08Z")
I’m pretty sure he could get the warrant. I’d go so far as to say that he **could** even sneek into your back yard and peek in through the windows to spot the plants. I recently caught a neighbor - who had an extensive criminal background for petty theft/trespassing and was well known to the police - sneaking around my back yard peeking in the windows (he ran back to his house when he saw me). I called the cops, told them what he was doing, where he was, and was sure they’d take him away for tresspassing/prowling. Instead they shrugged their shoulders and said they couldn’t do anything. Their reasoning was that they couldn’t prove criminal intent and therefore couldn’t get him for trespassing on private property. They also couldn’t get him for prowling because they said that law was intended to stop peeping toms/sex offenders. So apparently you can sneak around private property all you want as long as you can come up with a reasonable story as to why you are there. So, the cop could simply claim he’d been tipped by someone that there was a drug dealer living nearby him, that he was concerned for the safety of his family and went in for a quick look… maybe he knocked on the door and no one answered, took a walk around back, and low and behold he saw all this illegal stuff through the window. Maybe his actions weren’t the best options available, but they were still reasonable. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 25, 2008, 4:05pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/30 "2008-12-25T16:05:50Z")
> [@IAmNotSpartacus](#): > > 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](http://www.law.cornell.edu/supct/html/99-8508.ZS.html) > > 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. It’s not actually clear that the ruling “hinged” on the technology not being publicly available. What the court said was, “We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U. S., at 512, constitutes a search–**at least where (as here) the technology in question is not in general public use.** This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” They left open the question of whether use of publicly available technology is a different story. Of course, the Court had already suggested in \*dicta \* way back in 1952 “The use of bifocals, field glasses or the telescope to magnify the object of a witness’ vision is not a forbidden search or seizure, even if they focus without his knowledge or consent upon what one supposes to be private indiscretions.” _On Lee v. United States_, 343 U.S. 747, 754, 72 S.Ct. 967, 972, 96 L.Ed. 1270, 1276 (1952). Here is part of a New Jersey case that tries to harmonize the pre-\*kyllo \*cases: > [@](#): > > The warrantless use of vision enhancement equipment to make observations not visible with the naked eye was upheld in United States v. Ward, 546 F.Supp. 300 (W.D.Ark.1982), [\*\*\*12] United States v. Christensen, 524 F.Supp. 344 (N.D.Ill.1981), Saylor v. State, 185 Ga.App. 634, 365 S.E.2d 493 (1988), and U.S. v. Allen, 633 F.2d 1282 (9th Cir.1980), but was disallowed in U.S. v. Taborda, 635 F.2d 131 (2d Cir.1980); State v. Barnes, 390 So.2d 1243 (Fla.App.1980); State v. Kender, 60 Haw. 301, 588 P.2d 447 (1979); and U.S. v. Kim, 415 F.Supp. 1252 [\*\*1166] (D.Haw.1976). However, Taborda and Kim are distinguishable; Taborda because it involved observations made with a high-power telescope through a window into the interior of a private residence, and Kim because although it held that observations of both the interior of an apartment and an outside balcony with a telescope and high-powered binoculars were illegal under the Fourth Amendment, it did state that the activity on the outside balcony, “if standing alone, might very well not have invaded Kim’s privacy”. (at 1257). > > The cases rejecting the use of evidence obtained with the use of binoculars or telescopes did not have the benefit [\*\*\*13] of Ciraolo, Dow Chemical, and Riley and relied heavily on Katz which they read as prohibiting the use of sophisticated scientific devices to spy on citizens. Presumably those courts believed that binoculars and high power telescopes are sophisticated scientific devices. We do not share that view, especially as to binoculars, and agree with U.S. v. Allen, supra at 1290-1291, that “[t]he use of aids to the senses such as binoculars does not convert unobjectionable surveillance into a prohibited search”. We believe that unlike the interior of one’s home, society has a considerably reduced expectation of privacy with regard to objects or activities in a backyard. There is no sound reason to expect the police to patrol or conduct surveillances with blinkers on and not observe objects “visible to any curious passerby” who uses binoculars. James v. United States, 418 F.2d 1150, 1151 (App.D.C.1969). As said in Fullbright [\*217] v. United States, 392 F.2d 432 (10th Cir.1968), cert. den., 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 101 (1968) which sustained the admissibility of evidence obtained [\*\*\*14] by looking into defendant’s backyard shed with binoculars: > > ``` > observations from outside the curtilage of activities within are not generally interdicted by the Constitution. Indeed, to so hold might require passing officers to close their eyes to the commission of felonies on front door steps. (at 434). > > ``` > > These police officers were entitled to be in the roadway and were not violating the law when they made their observations, factors emphasized in Florida v. Riley, supra 488 U.S. at 451, 109 S.Ct. at 697 which said: > > ``` > it is of obvious importance that the helicopter in this case was not violating the law, and there is nothing in the record or before us to suggest that helicopters flying at 400 feet are sufficiently rare in this country to lend substance to respondent's claim that he reasonably anticipated that his greenhouse would not be subject to observation in that altitude. > > ``` > > We find nothing inherently objectionable to a person looking into someone else’s backyard provided, of course, there is no physical trespass upon the property. _State v. Citta_, 265 N.J. Super. 208; 625 A.2d 1162; 1990 N.J. Super. LEXIS 520 (N.J. Super. Ct. 1990) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 25, 2008, 4:46pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/31 "2008-12-25T16:46:24Z")
Assuming the cop goes to a magistrate and says, “I spotted pot plants in this guy’s house with my telescope, can I have a warrant?” and assuming that it’s actually illegal, the magistrate shouldn’t issue the warrant.\* E.g., \*[http://www.state.ok.us/~oids/coca/CannonWP-KuenstlerGC.pdf](http://www.state.ok.us/~oids/coca/CannonWP-KuenstlerGC.pdf) If the magistrate knew the facts and issued the warrant anyway, evidence seized in good faith reliance on the warrant, though the warrant was invalid, would probably be admissible. E.g., United States v. Leon, 468 U.S. 897 (1984) [http://www.law.cornell.edu/supct/html/historics/USSC\_CR\_0468\_0897\_ZO.html](http://www.law.cornell.edu/supct/html/historics/USSC_CR_0468_0897_ZO.html) Of course some jurisdictions do not apply Leon’s good faith exception: [http://74.125.95.132/search?q=cache:20e8dhhjQa8J:caselaw.findlaw.com/data2/indianastatecases/app/04110003.mgr.doc+warrant+issued+based+on+illegally+seized+evidence&hl=en&ct=clnk&cd=2&gl=us&client=firefox-a](http://74.125.95.132/search?q=cache:20e8dhhjQa8J:caselaw.findlaw.com/data2/indianastatecases/app/04110003.mgr.doc+warrant+issued+based+on+illegally+seized+evidence&hl=en&ct=clnk&cd=2&gl=us&client=firefox-a) _And see_, [http://www.courts.state.va.us/opinions/opncavtx/2990983.txt](http://www.courts.state.va.us/opinions/opncavtx/2990983.txt) ---
**Author:** ![Melkor28](https://avatars.discourse-cdn.com/v4/letter/m/d26b3c/32.png) [@Melkor28](https://boards.straightdope.com/u/Melkor28)\ **Post date:** [December 25, 2008, 5:09pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/32 "2008-12-25T17:09:21Z")
> [@](#): > > Originally posted by **Gfactor** : > > As per: State v. Citta, 265 N.J. Super. 208; 625 A.2d 1162; 1990 N.J. Super. LEXIS 520 (N.J. Super. Ct. 1990) > > _We believe that unlike the interior of one’s home, society has a considerably reduced expectation of privacy with regard to objects or activities in a backyard._ From the example you provide, the court seems to be is saying back yards are ok, not the interior of one’s home; as in the OP’s scenario. And: > [@](#): > > _We find nothing inherently objectionable to a person looking into someone else’s backyard provided, of course, there is no physical trespass upon the property_ I sumit a telescope into the interior of a house, will probaly be ruled an invasion of privacy. ---
**Author:** ![IAmNotSpartacus](https://avatars.discourse-cdn.com/v4/letter/i/cc9497/32.png) [@IAmNotSpartacus](https://boards.straightdope.com/u/IAmNotSpartacus)\ **Post date:** [December 25, 2008, 8:00pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/33 "2008-12-25T20:00:23Z")
> [@Gfactor](#): > > It’s not actually clear that the ruling “hinged” on the technology not being publicly available. What the court said was, "We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” A telescope from a public location would not constitute an intrusion into a constitutionally protected area…Would it? OP indicates the marijuana plants are in view from the windows, as is the guy smoking pot from his couch. ETA: By definition it seems to me anything in view from the window could be obtained by a means other than a physical intrusion into the constitutionally protected area. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 25, 2008, 8:08pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/34 "2008-12-25T20:08:37Z")
> [@Melkor28](#): > > From the example you provide, the court seems to be is saying back yards are ok, not the interior of one’s home; as in the OP’s scenario. > > And: > I sumit a telescope into the interior of a house, will probaly be ruled an invasion of privacy. All of which would be relevant if “invasion of privacy” was a constitutionally impermissible conduct. :smack: The issue is whether the search is unreasonable. There is no case on point, and despite **Richard Parker** ’s bland assurance that the holding in _Kyllo_ is controlling, that is not necessarily the case. Indeed, I would argue that _Kyllo_ is entirely inapposite to the case posited by the OP. While relying on headnotes and summaries is always fraught with danger, I will quote here the official holding from the summary page of the decision in _Kyllo_: > [@](#): > > Held: Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search,” and is presumptively unreasonable without a warrant. The key difference is the part about “unknowable without physical intrusion.” Something you can see through a window is not “unknowable without physical intrusion.” So the issue of whether or not a telescope is “in general use” is a red herring. As **Gfactor** pointed out, the Court has yet to address whether or not the _Kyllo_ rule would apply if you weren’t using fancy-dancy technical equipment, but rather something plain and ordinary like anyone has (say, laying your hand against the wall, or using an ordinary temperature probe like you have to test meat doneness). But who cares? We are looking through windows, not trying to see through walls. We start with a simple basic scenario. A police officer, legally where he is, looks through your window with his plain eyes, and sees on your windowsill, a pot plant. Clearly, this is good enough. Now, move the pot plant back into the interior of the house. The officer, still legally where he is, sees it on the dining room table, some 12 feet inside the house. Still good enough? Now move the officer back. He can’t see into the house with his unaided eye any more, he needs binoculars or a telescope. He uses them. Still good enough? The New Jersey court that **Gfactor** cites rejects the attempt to distinguish searches aided by technology from those which are not so aided. But it should be noted that some circuits of the federal bench were making that distinction, possibly (see, for example, the description of the _Taborda_ case in the New Jersey opinion). I say possibly because we don’t have the actual exerpt from _Taborda_, and it may be the case that the court there was relying not on the use of a high-powered telescope, but rather the fact that this was used to peer into the interior of the house not otherwise seeable without physical intrusion. See how fun this gets? The Supreme Court of the United States has suggested in _dicta_ that using binoculars or a telescope to view into a home was not an “unreasonable search,” according to the cite offered by **Gfactor**. It is not apparent that the Court has since addressed this precise issue. We do not, therefore, have a conclusive answer on the subject, the assertion of Mr. Parker notwithstanding. And please be careful not to read too much into a state court decision, **Melkor28**. ---
**Author:** ![Melkor28](https://avatars.discourse-cdn.com/v4/letter/m/d26b3c/32.png) [@Melkor28](https://boards.straightdope.com/u/Melkor28)\ **Post date:** [December 26, 2008, 12:53am UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/35 "2008-12-26T00:53:35Z")
Understood: According to the cite offered by **Gfactor** , a ruleing against useing a Telescope through a window. > [@](#): > > but was disallowed in U.S. v. Taborda, 635 F.2d 131 (2d Cir.1980); > Taborda because it involved observations made with a high-power telescope through a window into the interior of a private residence And a ruleing for using a helo, looking into a back yard. > [@](#): > > nothing in the record or before us to suggest that helicopters flying at 400 feet are sufficiently rare in this country to lend substance to respondent’s claim that he reasonably anticipated that his greenhouse would not be subject to observation in that altitude. I understand presedent dosn’t always rule. > [@](#): > > Presumably those courts believed that binoculars and high power telescopes are sophisticated scientific devices. We do not share that view But so far all examples cited show a telescope through a window is an unreasonable search. Let me give you an example: Your house is in a very rual neighborhood; the nearest house is 1/2 a mile away. You don’t bother too draw the blinds while having sex whith your wife, on a Sunday afternoon. Your neighbor sues for public lewednes, and corupting a minor; because his son saw you through a window faceing the back yard, with a Telescope. Will your neighbor win? Again I say depending on the judge isuing the warrent, and the judge hearing the case you might have different ruleings. It’s just MOHOP that it will be a violation; in the OP’s scenario. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 26, 2008, 1:29am UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/36 "2008-12-26T01:29:37Z")
> [@DSYoungEsq](#): > > I say possibly because we don’t have the actual exerpt from _Taborda_, and it may be the case that the court there was relying not on the use of a high-powered telescope, but rather the fact that this was used to peer into the interior of the house not otherwise seeable without physical intrusion. \*Taborda \*is an interesting case. In that case, the authorities got a search warrant based on two kinds of evidence: unaided visual surveillance and enhanced visual surveillance (using a “high-powered” telecscope). > [@](#): > > ``` > After reciting that surveillance of Apartment 1G had been conducted from Apartment 3G “at times” by means of “a Monolux # 4352 telescope with a 20 mm viewer,” the affidavit stated as follows: > > 3) At approximately 8:00 p. m. on October 4, 1979 Detective Robert Bisbee observed on a table in the kitchen of the PREMISES KNOWN AS 139-55 35th AVENUE, APARTMENT 1G, FLUSHING, NEW YORK a quantity of baggies and two jars labelled “Inositol”. > 4) Based upon his experience, your deponent knows that Inositol is a substance used to dilute cocaine. > 5) Detective Bisbee and other DEA agents observed two males and a female seated at the kitchen table. The two males were cutting off the ends of small black objects (about 4 inches tall) which resembled chess pieces and emptying white powder from these objects into a plastic bag. (A total of over 100 of these black objects was opened in this manner.) In addition to this plastic bag Detective Bisbee and other Drug Enforcement Administration agents observed a second clear plastic bag containing white powder on the window sill. > 6) During the procedure described in paragraph 5, the two males sat next to the open kitchen window. They would occasionally draw their heads back, grimace and wave their hands in front of their faces as if to disperse an offensive odor. > 7) Based upon experience your deponent is aware that cocaine is frequently diluted with substances having offensive odors. > 8) During the procedure described in paragraph 5, the two males touched their faces only with the backs of their hands. > 9) Following the aforesaid procedure, the two males washed their hands with a honey-colored liquid which was contained in a large jar further contained in a paper bag on the kitchen floor. > 10) At approximately 10:00 p. m., after the aforesaid procedure was completed, the aforesaid individuals left the apartment. One of the males who had been seated at the table appeared to be carrying an object inside his jacket. > 11) At approximately 6:55 p. m. on October 10, 1979 Detective Bisbee observed (by the same means described above) one of the individuals described above sitting at the kitchen table of the PREMISES KNOWN AS 139-55 35th AVENUE, APARTMENT 1G, FLUSHING, NEW YORK. Dective (sic) Bisbee observed the individual open several bags containing white powder, sift them through a strainer and place the white powder in smaller clear plastic bags. Upon completion of this procedure the individual put the bags of white powder and other paraphernalia away. > 12) At approximately 4:50 p. m. on October 23, 1979 Police Officer Berk and Detective Gerald Kieran observed (by the same means described above) two of the individuals described above at the kitchen table of the PREMISES KNOWN AS 139-55 35th AVENUE, APARTMENT 1G, FLUSHING, NEW YORK. The officers observed the individuals empty a quantity of white powder into a clear plastic bag which they sealed with a tie. Surveillance was conducted until midnight and neither of these individuals was observed to leave the apartment. No surveillance was conducted on 10/24 prior to the issuance of this search warrant. > WHEREFORE, your deponent respectfully requests that a search warrant issue to your deponent or any Special Agent of the Drug Enforcement Administration authorizing him to enter with the proper assistance and to search the PREMISES KNOWN AS 139-55 35th AVENUE, APARTMENT 1G, FLUSHING, NEW YORK and there to seize any cocaine found therein and any strainers, baggies, diluant, (sic) and other narcotics parapharnalia (sic) which constitute evidence and fruits or instrumentalities of the crime of illegal possession of a controlled substance. > > ``` > > The affidavit recounted that the agents had observed, inter alia, a quantity of baggies and two jars labelled “Inositol”-a substance Deignan knew to be a diluent for cocaine; a clear plastic bag containing white powder on the kitchen window sill of Apartment 1G; two men cutting the ends off of more than 100 small black objects and emptying white powder from those objects into a plastic bag; the two men occasionally drawing their heads back and grimacing, and waving their hands in front of their faces as if to dispel an odor (Deignan noted that cocaine is frequently diluted with substances having offensive odors); and one or more persons sifting white powder through a strainer and transferring white powder from larger bags to smaller bags. There was no indication in the affidavit as to what observations were made by means of the telescope and what observations were made without its assistance. 635 F.2d 131, 134. > [@](#): > > The principal witness for the government was New York Police Detective Robert Bisbee who was assigned to the DEA Task Force. Bisbee, who had made most of the October 4 and 10 observations described in Deignan’s affidavit, testified that on those dates the weather was clear, Apartment 1G was well lit, and its kitchen window was open with its blinds up and its curtains open. Bisbee stated that most of his observations, including the following were made without the aid of the telescope: he observed Taborda and another man seated at the kitchen table in Apartment 1G, opening packages of white powder and transferring the powder to bags of a different size, opening small (3-4 inches) dark cylindrical objects and dumping white powder from them into plastic bags; he saw one of the men place a plastic bag containing white powder on the window sill; he saw Taborda stick his head out of the window as if to get fresh air, and saw both men wipe their eyes frequently with the backs of their hands as if their eyes were tearing. Bisbee testified that he used the telescope only to help him count the small dark objects from which white powder was being removed (thus aided he counted four rows of 26, or 104-106 altogether), and to allow him to read the legends on containers and implements he had observed but could not read without the aid of the telescope to see what was happening in Apartment 1G. > > New York Police officers Gerald Kieran and Stephen Berk, who also were assigned to DEA, testified, inter alia, that they made observations of activity in Apartment 1G on October 23. Kieran stated that on that date he conducted surveillance from Apartment 3G for nearly six hours, making no use of the telescope. He saw two persons sitting at the kitchen table in Apartment 1G transferring white powder from one clear plastic bag into another. Berk testified that he made the same observation, with and without use of the telescope. > > As to the configuration of 139-55 35th Avenue and the distances involved, Bisbee testified that Apartment 1G is above the street level, although less than a full story above it. The entrance to Number 139-55 is topped by a slanting roof which partially obscures windows in Apartment 1G. Thus, much of the interior of Apartment 1G is not visible from the street. The building is set back from the street and its base is approximately 189 feet from the base of Number 139-50. Apartment 3G is on the third floor of Number 139-50 and is about one and one-half stories higher than Apartment 1G. The two apartments are thus about 190 feet apart. > > The defense called as a witness Kenneth Bynoe, a private investigator who had been a police sergeant for sixteen years. Bynoe and Taborda’s attorney had taken photographs of Number 139-55 from its driveway and from the sidewalk in front; these photographs were received in evidence. Bynoe testified that if a person were sitting at the window-end of the kitchen table in Apartment 1G, it would not be possible from the street to see into the kitchen beyond that person. Bynoe had also been inside Apartment 3G and had attempted to take photographs from there, but those photographs did not “come out.” He did not offer testimony as to the visibility of the interior of Apartment 1G from Apartment 3G. Id. at 134 The court recognized the early Supreme Court \*dicta \*, but noted that it was pre-_Katz_. > [@](#): > > Warrantless searches are, “subject only to a few specifically established and well-delineated exceptions,” per se unreasonable and are therefore prohibited by the Fourth Amendment. Katz v. United States, supra, 389 U.S. at 357, 88 S.Ct. at 514; Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971). The threshold question in the present case is whether observation by means of a high-powered telescope constitutes the type of intrusion against which the Fourth Amendment protects. The answer depends on whether such surveillance violated reasonable expectations of privacy. > > The only Supreme Court discussions of the constitutional implications of surveillance with optical devices are dicta in two elderly cases, in which, as the government puts it, the Court accepted it “as a given” that use of such devices did not constitute an unreasonable search and seizure. See On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927). In Lee, the Court considered the use of a search light by Coast Guard officers to observe the deck of a vessel at sea. The use of the light was upheld with the observation that “(s)uch use of a search light is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.” 274 U.S. at 563, 47 S.Ct. at 748. In On Lee, the Court dealt with the use of a radio transmitter to overhear a conversation between the defendant and an undercover agent. The Court observed that the defendant was talking “indiscreetly” with someone he trusted, who was lawfully on his premises; and the fact that he was overheard by means of the transmitter and a receiver rather than by an agent simply standing outside an open window was held immaterial to Fourth Amendment analysis. Again the Court analogized to visual aids: > > The use of bifocals, field glasses or the telescope to magnify the object of a witness’ vision is not a forbidden search or seizure, even if they focus without his knowledge or consent upon what one supposes to be private indiscretions. > > 343 U.S. at 754, 72 S.Ct. at 972. > > While these statements were dicta, they were entirely consistent with Fourth Amendment analysis then prevailing, which depended heavily on common law concepts of trespass. Under those precepts, emphasis was laid on such questions as whether or not the agents had physically penetrated the subject’s property, see, e. g., Silverman v. United States, 365 U.S. 505, 512, 81 S.Ct. 679, 683, 5 L.Ed.2d 734 (1961); Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), or were otherwise within the curtilage, see Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). See generally 1 La Fave, Search and Seizure: A Treatise on the Fourth Amendment 257 (1978); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 357 (1974). > > In 1967, however, with the decision in Katz v. United States, supra, Fourth Amendment analysis entered a new era as the Court held that trespass concepts were no longer controlling. Katz ruled that the government’s listening to one side of a telephone conversation by means of electronic equipment placed on the outside of a telephone booth located in a public place was a search in violation of the Fourth Amendment. Justice Stewart, writing for the Court, stated that notions of protected areas were no longer necessarily useful, observing that > > (w)hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection… But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. > > 389 U.S. at 351-52, 88 S.Ct. at 511-12. The Court held that the evidence gleaned from the agents’ electronic eavesdropping at the booth could not be used against Katz at his trial because the use of the device “violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.” Id. at 353, 88 S.Ct. at 512. Justice Harlan, concurring, distilled from Katz and its antecedents “a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” Id. at 361, 88 S.Ct. at 516. And then applied \*Katz \* to the visual surveillance: > [@](#): > > Analysis of telescopic surveillance pursuant to the Katz tests means that the fact that the area observed by the agents is the interior of a residence is significant, for “a man’s home is, for most purposes, a place where he expects privacy …” Id. at 361, 88 S.Ct. at 516 (Harlan, J., concurring). The very fact that a person is in his own home raises a reasonable inference that he intends to have privacy, and if that inference is borne out by his actions, society is prepared to respect his privacy. But the inference may be rebutted by the person’s own actions. If in his home he conducts activities or places objects in such a way that the activities or objects are seen by the unenhanced viewing of persons outside the home, located where they may properly be, such observations transgress no Fourth Amendment protection because “no intention … has been exhibited” by the householder to prevent the unenhanced viewing of others. Id. (Harlan, J., concurring); id. at 351, 88 S.Ct. at 511 (opinion of the Court). Absent exposure to such unenhanced viewing, however, we do not believe the inference of intended privacy at home is rebutted by a failure to obstruct telescopic viewing by closing the curtains. See United States v. Kim, supra; cf. People v. Arno, 90 Cal.App.3d 505, 153 Cal.Rptr. 624 (1979) (office building). The vice of telescopic viewing into the interior of a home is that it risks observation not only of what the householder should realize might be seen by unenhanced viewing, but also of intimate details of a person’s private life, which he legitimately expects will not be observed either by naked eye or enhanced vision. See United States v. Agapito, 620 F.2d 324, 330 (2d Cir. 1980), drawing a sharp distinction between permissible listening with the naked ear and impermissible enhanced listening with artificial devices. > > * * * > > In short, we reject both Taborda’s suggestion that all activities conducted in his home were automatically entitled to Fourth Amendment protection, and the government’s suggestion that every object or activity viewable through a telescope because Taborda failed to close the curtains was beyond Fourth Amendment protection. We conclude that observation of objects and activities inside a person’s home by unenhanced vision from a location where the observer may properly be does not impair a legitimate expectation of privacy. However, any enhanced viewing of the interior of a home does impair a legitimate expectation of privacy and encounters the Fourth Amendment’s warrant requirement, unless circumstances create a traditional exception to that requirement. Because the warrant was issued based on both kinds of evidence the court remanded the the case to permit the District Judge to determine whether the unaided visual evidence was sufficient to support a warrant. The decision was 2-1, with Senior District Judge Dumbauld, who was sitting by designation, dissenting. His dissent: > [@](#): > > In my judgment there can be no reasonable expectation of privacy with respect to what can be seen by means of a long-familiar and generally used optical instrument. > > I would reverse simpliciter. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 26, 2008, 1:36am UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/37 "2008-12-26T01:36:03Z")
See generally, _Observation through binoculars as constituting unreasonable search_, 59 A.L.R.5th 615 (1998): > [@](#): > > In conducting surveillance of a suspect or of an area, law-enforcement officers sometimes employ vision-enhancing devices such as binoculars or telescopes, either to enable them to see things not otherwise visible from that distance or to see in greater detail what is already visible to the naked eye. Most courts evaluate the use of such methods in terms of whether, under the circumstances presented, the particular defendant manifested a reasonable expectation of privacy from vision-enhanced observation. In People v. Oynes (Colo. Ct. App. 1996) 920 P.2d 880, 59 A.L.R.5th 873, a deputy standing in an open field used binoculars to view marijuana plants growing under a halide lamp in an upstairs window of the defendant’s rural home. The deputy testified that it was the unusually bright light that had initially attracted his attention to the house. Reasoning that the display of so bright a light in a window indicated an absence of a subjective expectation of privacy, the court affirmed the lower court’s ruling that the deputy’s observations did not constitute a search under the Fourth Amendment. Other courts have reached varying results depending on the facts and circumstances involved, as the following annotation shows. ---
**Author:** ![Washoe](https://avatars.discourse-cdn.com/v4/letter/w/ecae2f/32.png) [@Washoe](https://boards.straightdope.com/u/Washoe)\ **Post date:** [December 26, 2008, 2:06am UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/38 "2008-12-26T02:06:16Z")
Interesting anecdote, and one that’s been stuck in my memory for a long time. Sometime in the very early 70’s, my aunt, uncle, and their two children were in Petrified Forest National Park in Arizona. They were hiking in an area about five miles away from a Ranger station, but in direct line-of-sight of it. My cousin, who was maybe fourteen years old or so at the time, picked up a piece of petrified wood about the size of a golf ball and stuck it in his pocket. A few minutes later, his consciousness got the better of him and he decided to return it to the place he took it from. When they got back to the Ranger station, a commissioned Ranger with a pair of binoculars around his neck approached them and said “your son is very fortunate that he put that rock back.” ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 26, 2008, 5:13am UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/39 "2008-12-26T05:13:00Z")
> [@Melkor28](#): > > Understood: According to the cite offered by **Gfactor** , a ruleing against useing a Telescope through a window. > And a ruleing for using a helo, looking into a back yard. > > I understand presedent dosn’t always rule. But so far all examples cited show a telescope through a window is an unreasonable search. > Let me give you an example: Your house is in a very rual neighborhood; the nearest house is 1/2 a mile away. You don’t bother too draw the blinds while having sex whith your wife, on a Sunday afternoon. Your neighbor sues for public lewednes, and corupting a minor; because his son saw you through a window faceing the back yard, with a Telescope. Will your neighbor win? > > Again I say depending on the judge isuing the warrent, and the judge hearing the case you might have different ruleings. It’s just MOHOP that it will be a violation; in the OP’s scenario. Observation #1: Your argument will carry more weight if you utilize correct spelling. Observation #2: Your argument will carry more weight if you offer analogies that are relevant, not to mention ones that offer a correct understanding of law. Observation #3: I don’t necessarily disagree with you. But other than the Circuit Court of Appeals case in _Taborda_, it doesn’t look like we have much directly on point (possibly the Colorado case mentioned in the digest cited by **Gfactor** in his last post is on point, but it’s not abundantly clear that it is, since the digest says the case found that no actual “search” took place, a totally different issue). And I can almost guarantee you that an absolutist approach, such as taken by the two judges in _Taborda_, will not see the light of day at the Supreme Court, were the case to make it that far. 😛 To my way of thinking it may well come down to this: why the telescope? is it being used to see into the dim, dark recesses of the house, which would normally not be visible? or is it being used to overcome being somewhat obvious about what one is doing by watching from close range? or is there some other factor involved? ---
**Author:** ![threemae](https://avatars.discourse-cdn.com/v4/letter/t/5f9b8f/32.png) [@threemae](https://boards.straightdope.com/u/threemae)\ **Post date:** [December 26, 2008, 6:15am UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/40 "2008-12-26T06:15:49Z")
Sorry to hijack, but how in the heck do the rulings cited by **Gfactor** square with the use of drug sniffing dogs, particularly in a situation where a person is pulled over and there’s nothing immediately observable by police to suggest something illegal. Am I wrong in understanding that when the police have a hunch they can detain that person for a vaguely defined “reasonable period of time,” until a drug-sniffing dog arrives, and if that dog arrives and alerts (according to the police handler) on the car, then they have probable cause to execute a search? It seems obvious to me that a drug sniffing dog is an extraordinary technology or technique that certainly didn’t exist at the time of the writing of the Constitution that far surpasses the ability of “ordinary senses.” The vague scent of drugs detectable to drug-sniffing dogs seems no more a part of casual observation than the IR emissions being a part of normal vision by virtue of being a part of the electromagnetic spectrum. Also, if I really wanted to I know I could have an IR scanner by next Friday, but I’ll be damned if I know how to buy or borrow a drug-sniffing dog. [Previous page](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516.md?page=1) [Next page](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516.md?page=3)