Illegal search?

What is the name of your state (only U.S. law)? Oregon
Last month I had a helicopter fly over my property, I have 32 acres, and they found two marijuana grow sites. When the chopper was flying over my wife went out to see what was up. While outside she saw an SUV coming up the driveway, and went back inside. An officer knocked on the door and told my wife they had a chopper in the air and found a couple of grow sites. My wife asked if they had a warrant, and the officer said no, but they were going to check them out, and proceeded to pull up the plants. Is this a legal search?

what do you think might not have been legal?

What has your attorney had to say about it? Have you been charged, yet?

I believe that is known as the "open fields" doctrine.

There is NO expectation of privacy in an open field, so entering it, maybe not by the curtilage of the home, but by jumping a fence or such, is not a search, therefore no warrant is required, IMO.

You are probably correct BOR. Personally, I find this exception outrageous but that doesn't change what the courts have accepted.

so, what would one define as curtilage?

this is from http://topics.law.cornell.edu/wex/curtilage

Curtilage includes the area immediately surrounding a dwelling, and it counts as part of the home for many legal purposes, including searches and many self-defense laws. When considering whether something is in a dwelling's curtilage, courts consider four factors:

The proximity of the thing to the dwelling;
Whether the thing is within an enclosure surrounding the home;
Wha the thing is used for.
What steps, if any, the resident took to protect the thing from observation/ access by people passing by.

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so, it would appear something such as a farm field is not curtilage but what about something such as an estate where there may be 32 acres of maintained property? what if it is also fenced? and the tennis court is at the furthest point from the house?

This is a 1988 case from Oregon. The Supreme Court clarified the open fields doctrine in its decision. I couldn't find anything more recent.

State v. Theresa Dixson


So, the tennis court on the fenced property should be safe from scrutiny.

In THIS case, the sites were visible from the air...no illegal search.

The 1988 case involved an aerial search as well.

Perhaps the law has changed regarding aerial searches.

Perky said:

This is a 1988 case from Oregon. The Supreme Court clarified the open fields doctrine in its decision. I couldn't find anything more recent.

State v. Theresa Dixson

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Good citation, very unlikely they overruled or modified themselves.

Often state constitution's provide more protection than the 4th AM.

justalayman said:

You are probably correct BOR. Personally, I find this exception outrageous but that doesn't change what the courts have accepted.

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I don't find it outrageous at all.

Yes, technically it is the owner's "air space", and can consider it "private", but as the SC has ruled, commercial planes are permitted to fly over anyones air space, (emphasis added), so the constitutional Q is of course, when does an expectation of privacy cease?

I think the OR SC decision is very well written legally. It will be decided on a case by case basis.

BOR said:

I don't find it outrageous at all.

Yes, technically it is the owner's "air space", and can consider it "private", but as the SC has ruled, commercial planes are permitted to fly over anyones air space, (emphasis added), so the constitutional Q is of course, when does an expectation of privacy cease?

I think the OR SC decision is very well written legally. It will be decided on a case by case basis.

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I don't have a problem with the air space (well, sort of but based on unrealistic expectations) situation. Based on the interpretation that area outside of the curtilage of a home is exempt from the protection afforded by the 4th is what I see as outrageous. That is what the statements about the fence, maintained yard, and tennis courts were about.

The decision of the court case cited did not discuss the legality of the aerial search but instead revolved around the secondary search by police on the ground. It was during that second search that the police found the defendants with the MJ grow site.

I think that other aerial cases that went before the US Supreme court are more on point:
California v. Ciraolo
California v. Ciraolo - Wikipedia, the free encyclopedia

Florida v. Riley
Florida v. Riley - Significance - Court, Brennan, Privacy, Police, Gell, and Greenhouse

Some Random Guy said:

The decision of the court case cited did not discuss the legality of the aerial search but instead revolved around the secondary search by police on the ground. It was during that second search that the police found the defendants with the MJ grow site.

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Right, I reread it. It does not address an aerial search, good point.

It mentions the open fields doctrine, but they are considering it from entering from a NON curtilage area, supposedly, true.

I read this thread with interest. I'm puzzled by how an aerial search would show a marijuana grow site. Would such a thing really be obvious from 100 ft. up. Apparently it was but how? I am willing to believe that when the ground searchers found the plants they could see them, handle them, smell them, et c. and decide whether this was pot. What can they do from a helicopter.
Assuming that the land is not posted "No Trespassing" I don't see that searching the land violates any laws. Mr. Justalayman mentions curtilage but the OP does not mention that the pot was near the house so I doubt that curtilage applies.
I have lived in a few rural areas and find the wife's behavior strange. Certainly going out to look at a low flying helicopter is normal but going into the house when seeing a car coming up the driveway is most odd. Normal folks would wave, call off the dogs, and walk towards the driveway.

Good luck

Dave1952 said:

I read this thread with interest. I'm puzzled by how an aerial search would show a marijuana grow site. Would such a thing really be obvious from 100 ft. up. Apparently it was but how? I am willing to believe that when the ground searchers found the plants they could see them, handle them, smell them, et c. and decide whether this was pot. What can they do from a helicopter.

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Binoculars can ZOOM in fairly close, MJ has a distinctive leaf shape. Either that or thermal imaging??

Assuming that the land is not posted "No Trespassing" I don't see that searching the land violates any laws. Mr. Justalayman mentions curtilage but the OP does not mention that the pot was near the house so I doubt that curtilage applies.

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Not having "no trespassing" signs does not mean a homeowner has relinquished his 4th AM rights or his state Constitutional parallel.