We just heard some good news about the protection of the 4th Amendment with regards to cell phone data. However, we’ve also learned that some law enforcement officials apparently find getting warrants to read our email to be incredibly annoying. These LEOs shouldn’t fret too much as they now have some good news of their own — they apparently don’t need a warrant to turn your property into a movie set if your property resembles an open field.
That’s the ruling from Green Bay, Wisconsin, where the fight against the world’s mildest drug (marijuana) is apparently worth twisting the 4th Amendment into a giant pretzel.
U.S. District Judge William Griesbach ruled that it was reasonable for Drug Enforcement Administration agents to enter rural property without permission — and without a warrant — to install multiple “covert digital surveillance cameras” in hopes of uncovering evidence that 30 to 40 marijuana plants were being grown.
This is in response to the two defendants in the case seeking to have footage from said surveillance cameras thrown out in their court case on unreasonable search and seizure grounds. Judge Griesbach made this ruling on the recommendation of US Magistrate William Callahan, who based his position on a US Supreme Court Case ruling that open fields were not covered under the 4th Amendment and didn’t require a warrant. Perhaps ironically, this ruling was made in 1984, a time when the prevalence and sophistication of such surveillance equipment wasn’t what it is today.
Still, I’m struck by two problems in this ruling (and the previous Supreme Court ruling as well). First, the two defendants in this case had fences and signs up around their property that said “No Trespassing”, so I’m not sure if the definition of “open field” fully applies here. Secondly, even if you argued that it did apply, how is this exception to the 4th Amendment not completely throwing the door wide open for abuse? What, after all, constitutes an “open field”? Is there a certain acreage criteria that needs to be met? A certain number of trees or shrubberies? Rabbit hole count?
And this doorway to abuse has been opened all because police didn’t want to bother to get a search warrant to put video equipment on private property.