Trespass / search

[jdkquarterhorse]

What is the name of your state? California

I live in a gated private community. Within the community, each property is also gated and private. Recently, animal control officers have been entering the community by following cars through the gate before the automatic gate can close. They are using our private streets as a "short cut" to other areas. As well, they are entering private gates to site dog owners for failure to license their dogs. I recently refused to allow an animal control officer to enter the main gates and use our streets as a short cut, and was cited for interference with an officer. My question is, are "law enforcement officers" such as animal control allowed to just enter private property at any time? Can they use private property as a short cut (because they do not want to drive an extra 1/2 mile) to another area?

 

[I AM ALWAYS LIABLE]

What is the name of your state? California

I live in a gated private community. Within the community, each property is also gated and private. Recently, animal control officers have been entering the community by following cars through the gate before the automatic gate can close. They are using our private streets as a "short cut" to other areas. As well, they are entering private gates to site dog owners for failure to license their dogs. I recently refused to allow an animal control officer to enter the main gates and use our streets as a short cut, and was cited for interference with an officer. My question is, are "law enforcement officers" such as animal control allowed to just enter private property at any time? Can they use private property as a short cut (because they do not want to drive an extra 1/2 mile) to another area?

My response:

No, they cannot enter without either permission or a warrant. The streets are not public - - they are "private". It's the same as if they just walked into your house. They either need an invitation or a warrant.

Your ticket should get tossed on Fourth Amendment grounds.

IAAL

 

[seniorjudge]

"...My question is, are "law enforcement officers" such as animal control allowed to just enter private property at any time?..."

Yes.

http://caselaw.lp.findlaw.com/data/constitution/amendment04/04.html#4

I should say, yes with exceptions.

But this is not a fourth amendment issue since, although there might be a search, there is no seizure.

 

[I AM ALWAYS LIABLE]

"...My question is, are "law enforcement officers" such as animal control allowed to just enter private property at any time?..."

Yes.

http://caselaw.lp.findlaw.com/data/constitution/amendment04/04.html#4

I should say, yes with exceptions.

But this is not a fourth amendment issue since, although there might be a search, there is no seizure.

My response:

Please qualify your "Yes" answer. I looked at your link, and for the life of me, I can't figure out what you're referring to, or how you came to a "Yes" answer. Please copy and paste that portion of the site you directed us to, telling us that we are not "secure in our homes" or other private grounds with invitation or a warrant.

IAAL

 

[I AM ALWAYS LIABLE]

My further response:

And, since when must a "seizure" be inexorably coupled with a "search" in order to be a violation of a person's 4th Amendment rights?

Do you see the following as being analogous to our writer's situation? Do you see a similarity? Substitute the word "Division" with the words "Police Authority", and substitute "workplace" with the words "private property". Do you see how the penumbra of the following also fits our writer's situation?

Although the Division has "free access to any place of employment to investigate and inspect," inspection (or investigation) of employer worksites is restricted both by other statutes and the reasonable search requirements (didn't say anything about "seizure") of the United States and California Constitutions. In short, the Division must have either employer consent or a warrant to inspect a workplace. (Indeed, the Appeals Board will suppress evidence that was obtained in an unlawful inspection.) [Ca Labor § 6314; Salwasser Mfg. Co. v. Occupational Safety & Health Appeals Bd. (1989) 214 Cal.App.3d 625, 632, 262 Cal.Rptr. 836, 841; In re Beacom Const. Co. (Cal-OSH App.Bd.) 1981 WL 140516; In re General Floors, Inc. (Cal-OSH App.Bd.) 1981 WL 140453; see U.S. Const. 4th Amendment; Ca Const. Art. 1, § 13; Ca Civ Pro § 1822.50 et seq.]

IAAL

 

[seniorjudge]

http://www.gpoaccess.gov/constitution/pdf/con015.pdf

This is a pretty nifty handbook on the fourth amendment.

OP's facts as I read them show that the officers are nowhere near the curtilage so that puts them in the open fields exception.

Obviously, if the Supreme Court of the United States has difficulty interpreting the fourth amendment, I doubt that you and I will come up with any precedents!

Look in the booklet on page 1211ff. It is on warrantless inspections.

 

[I AM ALWAYS LIABLE]

http://www.gpoaccess.gov/constitution/pdf/con015.pdf

This is a pretty nifty handbook on the fourth amendment.

OP's facts as I read them show that the officers are nowhere near the curtilage so that puts them in the open fields exception.

Obviously, if the Supreme Court of the United States has difficulty interpreting the fourth amendment, I doubt that you and I will come up with any precedents!

Look in the booklet on page 1211ff. It is on warrantless inspections.

My response:

Okay, I read your noted section, and quite frankly, I don't see how your view is supported. Perhaps I'm missing a more subtle nuance that you're trying to communicate. But, from my reading, the 4th Amendment is being upheld by the cites in that page. As a matter of fact, it discusses the same Employer / OSHA inspection I detailed earlier.

Therefore, I'll ask you again to PLEASE kindly copy and paste that portion of your "authority" which would tell me that your "yes" response is correct. I'm having trouble locating your authoritative reasoning in the cites.

IAAL

 

[I AM ALWAYS LIABLE]

OP's facts as I read them show that the officers are nowhere near the curtilage so that puts them in the open fields exception.[/QUOTE] My further response: You'll recall, the writer said, "I recently refused to allow an animal control officer to enter the main gates and use our streets." The officers may have been in the curtilage, and they are welcome to look through the gates. However, the gate, itself, takes them out of the "open field" exception. Without a warrant, an "invitation" or "permission" is needed to pass onto the private property. Unless the officers see a crime, or have a call concerning a crime, there is no "right of entry" without a warrant or permission. The "gate" itself, and the "private roadway" are the keys to this 4th Amendment problem. IAAL

 

[seniorjudge]

Obviously, under the Fourth Amendment, every search or seizure by a government agent must be reasonable. The Supreme Court has generally interpreted this requirement to mean that an arrest or search must be based on probable cause and executed pursuant to a warrant. There are, however, many exceptions to the probable cause and warrant requirements, including investigatory detentions, warrantless arrests, searches incident to a valid arrest, seizure of items in plain view, exigent circumstances, consent searches, vehicle searches, container searches, inventory searches, border searches, searches at sea, administrative searches, and searches in which the special needs of law enforcement make the probable cause requirement impracticable.

(I can send you the rest of the article if you need it)

The trial court applied the test from New York v. Burger, 482 US 691, 702-3, 107 SCt 2636, 2644, 96 LEd2d 601, 614 (1987). The Burger test determines the constitutionality of warrantless inspections of “closely regulated” industries. The three prongs of the test are as follows:
First, there must be a “substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made. Second, the warrantless inspections must be “necessary to further [the] regulatory scheme.” . . . Finally, “the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.” In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to law and has a properly defined scope, and it must limit the discretion of the inspecting officers.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=sd&vol=2002_1000&invol=1

http://myfloridalegal.com/pages.nsf/0/23825cd5d8d5693685256cca0055c0f8?OpenDocument

 

[I AM ALWAYS LIABLE]

My response:

You're getting way off base here - - you're going so far afield from the original writer's situation, that it's definitely difficult to see YOUR forest for the trees. The writer simply said:

"They are using our private streets as a "short cut" to other areas."

That's an abuse of authority, and a violation of the 4th Amendment right to privacy of one's home AND property. Unless they have "official business" being there, they simply SHALL NOT enter, and our writer DID NOT have an obligation to allow the officer's entry.

Imagine, if you will, an officer knocks at your door. As you open the door, the officer pushes past you without a word from you into your entryway saying, "Do you have a dog? I want to see if it's licensed." Ridiculous, it's true. Not only that, it's absurd.

I maintain that the ticket will be dismissed on 4th Amendment grounds.

IAAL

 

[CdwJava]

Okay ... if I may interject somethinghere, having worked in a city with a number of such privately funded, gated, and otherwise isolated communities. And while I have no idea of the specifics of the arrangements, or the legal codes cited under CA law, I know that we were allowed to freely access and enforce many laws in these places.

First, as a condition to BE gated and isolated from emergency services they had to provide keys or codes allowing access and regular inspection by government entities into the common areas of the roads, streets, and parks within the community. Obviously, that would not extend into the property of the individual homeowner.

Second, while we were unable to enforce a number of codes - particularly vehicle codes, we WERE able to enforce most on view violations of the law. An unlicensed animal running down the street would have provided cause for our animal control people to have inquired further.

Apartment complexes are also private property - yet most "in public" offenses CAN occur there. The same with hotels, shopping centers, and a host of other restricted properties.

I think the key to this might be the right of access to the Animal Control people. If they were not lawfully able to enter the community, then it might be thrown out. If their entry was tacitly agreed to due to prior arrangement, previous calls, or some other form of approval, then I can see where it might be seen as just fine.

The alternative is, "Sorry, you are on your own."

The Indian Casinos in San Diego found that out years ago when they refused to allow the sheriff's department to enforce the law on their property unless called (DUI drivers and other criminals would just run for the casino parking lot) ... so the sheriff decided that they would not respond to anything. Suddenly, the casino had to wake up the FBI agent on call so that he could drive an hour and a half from San Diego to the casino for a drunk. That caused a quick change of heart.

The same could happen to these private communities ... no enforcement or public services at all.

- Carl

 

[I AM ALWAYS LIABLE]

My response:

They either have authority or not. Am I the only one reading the original writer's post? He said, "animal control officers have been entering the community by following cars through the gate before the automatic gate can close."

That doesn't sound like "tacit" permission or authority. The fact is, the officers don't have keys or the code to the gate. That sounds like they weren't "invited" or had "permission", and that sounds like a 4th Amendment violation.

IAAL

 

[CdwJava]

I read it. But I'm not convinced they did not have the authority (or permission) to enter. I can't imagine any city planning department allowing for a community where government services were NOT permitted free access. I suppose it's possible, but I just can't see it as being an intelligent decision at all.

And all because they followed someone in does not mean they did not have permission or even access keys or codes for entry. I often followed people in to gated neighborhoods or complexes because it was easier than getting out of the car to punch in the code or flip through the alarm key ring ...and some times the Knox Boxes had another key or card that you had to use to get in and THEN had to put it back before the gate closed! Heck, it was usually easier to follow someone in.

EDIT: However, I will agree that failing to open the gate for an officer using it as a shortcut (if that is the true story) would be sufficient to justify an obstruction charge.

I would also be very curious to know specifically what code section he was cited for?

- Carl

 

[jdkquarterhorse]

I would like to add to my original statement that the animal control officer was investigating a complaint that had been made over a month prior and the location was in "another town." The animal control officer was using our private streets and property as a short cut. There were no complaints or calls in our community.

 

[Florid-aise]

Imagine, if you will, an officer knocks at your door. As you open the door, the officer pushes past you without a word from you into your entryway saying, "Do you have a dog? I want to see if it's licensed." Ridiculous, it's true. Not only that, it's absurd.

Using this mindset (above); take a look would you, at this other thread and add your two cents. I am sure the OP there would certainly appreciate it. Your argument needs to be heard.

https://forum.freeadvice.com/showthread.php?t=213722