Obligatory disclaimer: I am not a legal professional. The information, opinions, and analysis in this post and any others should not be taken as legal advice. I welcome any professional input; this would be greatly appreciated.
From the Blue Hill Legal Files….rural New Yorkers take their property rights very seriously. Recently, I heard yet again the oft-repeated statement that law enforcement officials in New York State cannot enter property that is marked “No Trespassing”. The person who said it heard it from others, who heard it from others, and so on. I’ve taken a few days to research the topic and hopefully settle the issue.
I’ve had a chance to read through enough of the related material to arrive at an informed, albeit non-expert conclusion. And there are some legal gray areas that you should be aware of. I’ll share all of this in Part II.
Let us begin. In 1987, Mr. Guy F. Scott was growing a large amount of pot in a remote area of his 165-acre property, located near County Route 19 in the Town of Preston in Chenango County¹. The property was clearly marked with No Trespassing signs. A bow hunter chased a wounded deer onto Scott’s property and stumbled upon a portable marijuana crop, an irrigation system, and aerial camouflage netting. The crop was located out of sight of a mobile home on the property, about 300-400 yards away.
The next summer, the same hunter entered the property again (reasons unknown) and saw a large number of plants under cultivation, along with an armed guard. He tipped off the State Police, who asked him to re-enter the property and collect a sample. He did so. Later that summer, the same hunter and a State Police Investigator entered the property to get a first-hand look at the crop. They did so without a warrant or Scott’s knowledge or permission. They were chased away by an unidentified, armed individual. The day after this visit, the NY State Police and the Chenango County Sheriff’s Department executed a search warrant. I assume they did this to confiscate the plants and arrest the defendant. Brilliant deduction, I know. Chenango County has not digitized their court records previous to 1997, so unless I personally visit the Clerk, I can’t read them.
In County Court, Scott’s attorney motioned to suppress the evidence gathered on the search warrant. He reasoned that the “No Trespassing” signs established an expectation of privacy under the 4th Amendment of the U.S. Constitution. The County Court denied the motion, stating that they were following Oliver v United States (466 US 170).
Oliver is a U.S. Supreme Court decision from 1984 that held that a warrantless search of land is constitutionally prohibited only if it involves a physical trespass by a government agent into the residence itself or its curtilage. In other words, the judges in the Oliver case took the wording of the 4th Amendment literally, so it applied to actual people in their ‘persons, houses, papers, and effects’. (Oliver is in turn based on two other Supreme Court Cases dating from the Civil Rights and Prohibition Eras.)² The defendant appealed.‡ In its ruling, the NY State Appellate Court affirmed the County Court’s ruling that “the open fields doctrine upheld in Oliver is followed in New York”. They affirmed this based on two of their own previous cases.† The Court then abruptly reversed the County Court’s decision to deny suppression of the evidence gathered at Scott’s property. In other words, it abandoned its own past precedents (not a huge deal) and rejected a U.S. Supreme Court decision (a really big deal).
This is remarkable to say the least, especially in today’s political climate. In the Court’s own words:
There is nothing in People v Reynolds (supra) which inhibits our rejection of Oliver if we are persuaded that the proper safeguarding of fundamental constitutional rights requires that we do so (see, e.g., People v P.J. Video, supra, at 303-306).
I will post the second part hopefully tomorrow, when I can get into the “how” and “why”.
Footnotes:
¹Chenango County currently requires a $275 annual subscription to access their online tax map database, so I can’t find the exact parcel, if it even exists any more. A search of the 2016 Town of Preston Tax Roll does not show that Guy F. Scott still owns land in the Town of Preston. This doesn’t mean he left New York State or passed away. He may have sold it or transferred ownership.
² If you’re interested in checking them out, they are Katz v. United States 389 U.S. 347 (1967) and Hester v. United States 267 U.S. 57 (1924).)
† People v. Joeger (111 AD2nd 944) and People v Reynolds (71 N.Y.2d 552).
‡ People v. Scott, 79 N.Y.2d 474.
Further reading on the subject:
Austin, Carolyn (2012) “New York Court of Appeals Declares an Open Field Posted with “No Trespassing” Signs Protected from Warrentless Searches and Seizures under the New York State Constitution,” St. John’s Law Review: Vol. 67: Iss. 2, Article 8. Available at: http://scholarship.law.stjohns.edu/lawreview/vol67/iss2/8
Sack, Kevin. “New York Court Voids Searches Allowed by U.S.” The New York Times, 3 Apr. 1992, http://www.nytimes.com/1992/04/03/nyregion/new-york-court-voids-searches-allowed-by-us.html.
The Blue Hill Files 