Posted on 3/20/17

An anonymous caller alerts the police that there is drug activity in an open field on the outskirts of the city. Based on the tip, the police immediately rush over to the property with the intent of making a drug bust. The police arrive, ignore the “No Trespassing” sign and slowly enter the property. On the property and standing behind a tree, they observe a man give over a plastic bag containing a white powdered substance to another man. The other man takes the bag and gives the seller five $100 bills. The police then emerge, place the men under arrest, and confiscate the bag. After lab tests, it is determined that the bag contains cocaine and the two arrested men face serious drug charges.

Now, consider a similar scenario, except that the anonymous caller tips the police to drug activity inside an occupied home. The police immediately rush to the scene, climb over the fence, and enter the backyard of the house. From the backyard they are able to observe a similar scene. After the arrest, the men face serious drug charges.

In both cases, the defendants assert their Fourth Amendment rights. They claim that the police performed an illegal search of the property because the police lacked a valid search warrant. The issue is whether the Fourth Amendment provides protection to the defendants in these situations.

The Fourth Amendment

The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In the 1984 case of Oliver v. United States, the U.S. Supreme Court reasoned that the Fourth Amendment does not apply to open fields because the intent behind the Fourth Amendment is to shelter the home, as an intimate place, from government surveillance. This is applicable even if the property contains a no trespassing sign.

Consequently, in the case of the drug bust in the open field, the defendants would not have a claim that the evidence should be suppressed due to a violation of their Fourth Amendment rights. Even if one of the men owned the property, there is no Fourth Amendment protection. As such, the police do not need a search warrant.

On the other hand, in the second scenario, the police violated the defendants’ Fourth Amendment rights by entering the backyard and observing without a valid warrant. The police entered an “intimate place” that falls under Fourth Amendment protection. At a motion hearing, the defendants would move to dismiss the charges because the evidence of wrongdoing was obtained illegally.

If you have been arrested and are facing drug charges, do not fight the system alone. Contact the criminal defense firm of Christopher Abel, a board-certified Texas attorney.

(image courtesy of Christian Koch)


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