From here it looks like the police were searching in a privately owned wooded area or field. They had reason to believe they would find something there…cell phone tower pinging her phone.
Do the police need a search warrant or other permission to send the teams into privately owned fields? What’s the usual procedure? I can see them just basically asking the owner for permission…or maybe just telling the owner they are going to be out there. Do they pay close attention to fences that may be property lines? and if something is found without getting explicit permission from the landowner, is it not admissible in court?
Fourth Amendment search and seizure law is pretty complex. In a nutshell, which lots of important detail and clarification left out:
[ol][li]Police may search anywhere with a search warrant, and can obtain a warrant on “reasonable cause to suspect.” It’s not a freebie gimme for them, but a judge will issue a search warrant whenever they produce a plausible reason for needing one.[/li][li]Police may search without a warrant only in certain circumstances, one of which is having the owner or legal posessor’s permission. (“Legal possessor” as I’m using it means someone having a valid legal reason to have something other than ownership, such as having been loaned a car, renting an apartment, being someone’s legal agent or executor of his estate, etc.)[/li][li]Police may search without a warrant or permission under specific circumstances including reasonable grounds to believe a threat that would preclude taking time to obtain a warrant, if they observe a felony being committed, etc.[/li]Additional details, exceptions, caveats, clarifications, etc., will no doubt be added by the Dopers-at-Law, particularly the two SDSAB who are members of the bar.[/ol]
IANAL, but the cops could possibly make the argument that they didn’t know for sure that she was dead. They had evidence that she was in the field (the cell phone signal), and were providing emergency response, which allows them to enter private property without permission.
Of course, all this only comes into play if it is the owner of the land who gets charged with the crime. If not, then the rights of the suspect weren’t violated by the cops trespassing since it wasn’t his property they searched without a warrant.
This very question was considered in Oliver v. U.S., 466 U.S. 170 (1984), by the United States Supreme Court. In Oliver, Kentucky state police officers investigating a report of marijuana cultivation drove past the house belonging to Oliver and walked around a locked gate with a “No Trespassing” sign, following an open footpath. Over a mile from the house, in open fields owned by Oliver, they found a nice patch of whacky tobaccaky.
Oliver was naturally offended that his “No Trespassing” sign did not deter the police, and sought to suppress the marijuana as fruit of an illegal search.
The trial court agreed, quoting the Katz rationale that Oliver had a “reasonable expectation of privacy.” The Circuit reversed, finding that the “open fields” doctrine established in Hester had not been overruled by Katz.
The Supreme Court went with Hester’s rationale, saying:
For the purposes of this discussion, how is an open field defined? Has it to do with access, or clearing of timber and brush, or something else? Can I fence in a field and have it be no longer be open?
In US v. Dunn, drug agents found a ranch that “…was completely encircled by a perimeter fence, and contained several interior barbed wire fences, including one around the house approximately 50 yards from the barn, and a wooden fence enclosing the front of the barn, which had an open overhang and locked, waist-high gates.” With no warrant, the agents crossed the perimeter fence, the barbed wire fences, and the wooden fence and looked inside (but did not enter) the barn. They saw evidence of drug activity and used that observation to obtain a warrant for the barn; the court ruled that the area near the barn was not within the curtilage of the house (which is protected). However, they did note that the type of fence was “…of the type used to corral livestock, not to ensure privacy.”
In California v. Ciraolo, the police were stymied by a six-foot high outer fence and a ten-foot high inner fence completely enclosing a yard. They got a small plane and flew over the yard, seeing marijuana plants when they did. The Supreme Court permitted this search as well, saying “…the mere fact that an individual has taken measures to restrict some views of his activities does not preclude an officer’s observation from a public vantage point where he has a right to be and which renders the activities clearly visible. The police observations here took place within public navigable airspace, in a physically nonintrusive manner.”
They don’t need a warrant of any kind even if they don’t think she is alive. They can just walk around a privately owned field that is fenced in with “no trespassing” signs looking for evidence.
What happens if a person’s home is the open field?
Consider a homeless person, who has taken up residence in a vacant lot by propping up two sides of a cardboard box that once held a giant-screen TV. Is he entitled to Fourth Amendment protections under his box? Around the area outside his box?
What about public lands? Am I protected in my tent if I’m camping on BLM land? Are hikers protected anyplace they camp? Or are they just SOL for the period they are camping?
Indeed it was. A suspect was living in Central Park and the police searched under the mattress on which he slept, finding a bloody knife. His lawyer argued it was an illegal search because the suspect had done everything he could to establish it as a home under the 4th Amendment but the judge admitted the knife, IIRC stating that making an open space like the park an “open field”-type space for some people while making it a private home for others was untenable.
What protections do you then have as a land owner to prevent trespass from police (ignoring any potential wrongdoing). Say you grew rare wildflowers and don’t want people stepping all over them.
The Fourth Amendment isn’t implicated, true, but that doesn’t mean the police can trample over your flowers at will.
You can still go after the police for trespassing. If their actions were permissible, they’ll be immune from consequences; if they were stepping on your flowers because they thought it was fun, you could prevail.
Just because the Constitution isn’t implicated doesn’t mean that other laws don’t protect you, especially if the police are acting without basis.
Because I had a GPR unit, I once helped the Ohio Highland County Sheriff’s office look for buried bodies at the home of Michael Fogt. We met at the Sheriff’s office at 8:00 AM, but we couldn’t start until noon. We were waiting for the judge to sign the warrant.
To this non-lawyer, this is the heart of the matter. The police were responding to an emergency situation and, in doing so, made some reasonable assumptions.
A similar but slightly different take: Suppose someone calls 911 from a home and says they have been stabbed. The police responding have a right (and responsibility) to search the home to both determine if anyone was in need of emercency medical services and to determine if a crime had taken place. In both the OP’s open field and the home stabbing, the police are making a reasonable assumption that urgent help is needed.