Trespass / search

[rmet4nzkx]

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.

I know of some communities in California where the city streets stopped at the boundry of the city complete with barriers which prevent all traffic including law enforcement to continue on the road which started up a few feet later causing others to drive around another route. Danville/San Ramon would be an example and where gated communities with gates into both communities exist and city streets end and county animal control has jurisdiciton. These communities over the years have merged for most practical matters with some exceptions causing one to drive great distances to get into or out of or to drive around some areas.

My suggesiton is to speak to the HOA or management first for clarification of the access of law enforcement for non requested or urgent matters, animal control and proceed from there to make complaints to government and agencies as appropriate. If they are allowed access to the community or to use it as a throughway then there may be nothing left to do other than you have an answer to your quesiton. If they have that right an abuse it, that is a different problem.

Because of the logistics of patroling these areas, law enforcement has a duty to remain available for emergencies and the cost of time and fuel it may not be feasible or financially responsible to deny access as a short cut, while at the same time a balance reasonable access and abuse or better planning might be raised as issues. At one itme I had a job which required considerable driving, over several hundren square miles. Sometimes having to range between opposite ends several times a day to make time comitments this meant routing the work in the most efficient manner possible while remaining flexble to change as needed, I also worked as a dispatcher and analyst, so I'm very familiar with the costs associated with even a small detour.

But without OP knowing what exactly law enforcement access is to begin with, what appears to be abuse, may in fact be allowable, we must know that in order to determin the extent of 4 ammendent violations.

A similar example occured in Berkeley California where the City put up street barriers to limit through traffic in many neighborhoods, eventually this was found to be unconstitutional and they were ordered to remove the barriers which had created quite a maze. Eventually they removed a portion, enough to allow fire engines access over a lower barrier without damaging the undercarriage, and some limited through access to residents or those who could memorize the maze

 

[seniorjudge]

...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....

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.

The officers did not arrest, did not go into anyone's house, did not do anything to anyone's effects. The officers were in a public place. (Yes, I know your answer to that: I would respond, if you have public utilities and if a tax supported ambulance has been in your community, then the streets are public.)

There was no search and no seizure.

This is not a fourth amendment problem.

By the way, as I said earlier, a warrant is always preferred. As a former prosecutor, I always tried to pound it into my cops' heads to let me get a search warrant and then we wouldn't have to fight a warrantless search exculsionary hearing.

Which brings me to another point, since there was no search and no seizure, IAAL, what is your remedy here? You can't have an exclusionary hearing since there's nothing to exclude.

Also, by the way, I hope OP wins his case! This is disgraceful behavior and I certainly hope it is illegal!

Somebody give me some good grounds for saying it is illegal....

 

[CdwJava]

I am still curious what the OP was cited for - the specific code section. Refusing to allow someone into a gate so they can cut through is not likely good cause for an interference charge.

So the key to the OP winning may have nothing to do with the 4th, and everything to do with the inappropriate application of the section.

- Carl

 

[Happy Trails]

What's the point of having a gated entrance that is reserved for owners and their visitors only; if anyone can go trucking through there anytime?

I agree Carl. What code is on the ticket?

 

[Florid-aise]

jdkquarterhorse, including this post, would be the third time that the specific code number you were cited for has been requested. Please find that number and post it here. Thank You.

Looking around, an animal control agency is a public agency under CA Code; and an animal control officer is authorized under the Penal Code 830.9
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=27320214092+4+0+0&WAISaction=retrieve

Just because it looks more readable, this link below, is for the city of Ripon, and the local ordinances there. Interesting reading.

http://www.cityofripon.org/RMC/Title-06/6-08_Animal-Control-Officer.pdf


I find it interesting that the entire issue of the OP, is not one where any response to a request for animal control services was made by someone within the gated community. If so, that would substantially change everything.

 

[seniorjudge]

What's the point of having a gated entrance that is reserved for owners and their visitors only; if anyone can go trucking through there anytime?

I have never understood what all this gated entrance stuff has to do with anything anyway.

It's a public street that goes in there: don't they get mail?

Anyway, OP, remember all those delivery trucks you saw in your neighborhood? Every pizza kid the area has the codes to the gate so it's hardly private.

Anyway, OP, we are all dying to know the specifics of this case; please help us.

I love this country...but the government really worries me....

 

[Happy Trails]

You would have a point, if it is a public street. Then as Rmetx stated above they probably will find out that they cannot block it.

I understood the poster to say it was private property. The owners may also have mailboxes outside the gated area or a post office box.

I own private property that we have sub-divided and I plan on the roads that we build and maintain to be for owners use (not public).

We have an easement through the property solely for maintaining utilities. People think it is a passage to get from point A to B, it's not. We have put a sign stating 'private drive'. People went running to the city hall thinking we had posted a public road. After viewing the city map they found out differently.

My suspicion is he was getting used to his short cut and got mad that this guy defied him, maybe not. But it could happen.

 

[rmet4nzkx]

Most of these gated communities have security guards posted at the entrences and call the resident if guests arrive and are not on the approved list, they most definately are private, some even have private security, some use local law enforcement. Until OP finds out specifically the status of access for animal control we can only speculate.

 

[jdkquarterhorse]

My apologies for delay in getting citation, was in glove box of another car. It is 6 sec 08.200c - interfering with an officer.

 

[CdwJava]

My apologies for delay in getting citation, was in glove box of another car. It is 6 sec 08.200c - interfering with an officer.

Well, I CAN tell you that it is NOT a state law violation, so it must be a municipal or county code. If you want to reveal what city and/or county this is, those codes might be on line. if not, you might consider going to your local library and looking up that section and seeing how it might apply.

Refusing to allow entry should NOT (given the circumstances as you've outlined) justify any type of obstruction charge. but then, Animal Control officers do not tend to have anywhere the same type of training as the local police, so they may not be fully aware of the applicable laws.

- Carl

 

[jdkquarterhorse]

As for specifics, I am female, nearly 50 and just an average law abiding citizen. Not radical or inclined to any trouble. My gated community is a middle upper class equine community. Animal control continues to use our streets (privately owned, not public) as a short cut to another town. It has occurred in the past they also enter private property looking for dogs and then citing the residents for not having tags on the dogs. In addition, they drive over our posted speed limit (35mph) like it is a freeway. Keep in mind, there are children on horses on these streets.

I was leaving the main gates when I saw the animal control officer attempting to enter. I drove through the "entrance" gate so that I could speak with her without exiting my vehicle (raining) and advise that she needed to contact property management for the access code. She took immediate offense to this and blocked my truck so I could not exit. She advised that I had to back up and let her in with our without a code. I asked (yes politely) that she let me exit and she could use the call box to contact either a board member or property management, she refused. I then called the Sheriff to advise that she was blocking my exit. Long story short, I got the ticket, not her. And, yes, they still follow cars through our gates and drive too fast on our streets. Please also note that I am aware of the call she states she was on, it was in a town on the other side of our community (not all that far for the officer to drive around), the call had been made a month prior so there was no emergency.

 

[seniorjudge]

Run for the governing council of the jurisdiction that hired that dog person. Political power is wonderful.

 

[Florid-aise]

As I have pointed-out on previous occaision, there need only be a reason to believe standard, rather than a probable cause standard, for certain authorities to fulfill their statutory authority and duties. Please take note of this when doing your research.

Also, I just remembered, when being blocked by the officer, from exiting (thus unable to leave and disengage this consentual encounter with a policing agency, freely and of your own accord) may be sufficient to show a court that you were indeed "in custody" at that moment in time. As such, "custody" is a "seizure" of your physical person. Seizure for the purpose of arrest or for the purpose of citation is permitted. Therein lies the problem. Did the Animal Control officer have sufficient legal authority to detain, and/or restrict, and/or convert your consentual encounter into a "custody" arrangement, and when; specifically, did this occur?

 

[Florid-aise]

Searching for something totally unrelated, I came across this. Because it is a Federal court and because it is near CA and because it is recent, I thought it might be meaningful for discussion.

SEARCH & SEIZURE
United States v. Esparza-Mendoza,
No. 03-4218, ___ F.3d ___ (10th Cir. Oct. 14, 2004)(Utah).

Appeal of district court’s denial of defendant’s motion to suppress evidence supporting conviction for illegal reentry to United States after prior deportation in violation of 8 U.S.C. § 1326.

HELD: Where defendant voluntarily spoke with police officer on porch of girlfriend’s house, officer’s direction to defendant to produce identification did not transform encounter into detention or seizure. Evidence did not indicate that officer used commanding or threatening manner, displayed weapon, touched defendant, or that officer would have arrested defendant if he again refused to produce identification or would have stopped him from simply going back into residence. Thus, reasonable person would have felt free to leave in lieu of responding to direction for identification. Accordingly, no detention or seizure for Fourth Amendment purposes.


NOTE:

(1) The district court in this case found that after the defendant refused to identify himself upon the officer’s initial request, the officer’s additional step of then directing him to answer constituted a detention for Fourth Amendment purposes. However, while the district court found that a Fourth Amendment detention or seizure occurred and the encounter was therefore no longer consensual, it nonetheless reached the novel conclusion that previously deported felons cannot assert Fourth Amendment claims. See United States v. Esparza-Mendoza, 265 F.Supp. 2d 1254, 1271 (D. Utah 2003)(explaining that previously deported alien felons do not have a “sufficient connection to this country” and therefore “stand outside ‘the People’ covered by the Fourth Amendment”). Unlike the district court, the Tenth Circuit found that the encounter remained consensual even after the officer demanded that the defendant identify himself. The Tenth Circuit therefore declined to reach the district court’s first-impression holding that previously deported felons cannot assert Fourth Amendment claims because they are not part of the “People” protected by the Fourth Amendment.

(2) In its analysis of the totality of the circumstances surrounding the front-porch encounter between the defendant and police officer, the Tenth Circuit relied in part on its decision in United States v. Abdenbi, 361 F.3d 1282, 1286, 1291-92 (10th Cir. 2004), where the court held in what might have been an even closer call that a defendant’s responses to questioning were voluntary in a situation where three officers gained entry into his apartment after awakening one roommate at 6:15 a.m., and then after finding defendant asleep in bed, proceeded to question him in bedroom).


Read the opinion here.
russwheeler 10:41 AM - [Link]