Date: Wed Aug 25 04:32:24 1999
From: lawecon@SWLINK.NET ("Craig J. Bolton")
Subject: Re: Police searches
To: LIBERTARIANS@LISTSERV.ARIZONA.EDU
Reply-To: LIBERTARIANS@LISTSERV.ARIZONA.EDU (Libertarian Students at the University of Arizona)
At 01:36 AM 8/25/99 EDT, you wrote:
>In a message dated 8/24/99 11:06:25 AM US Mountain Standard Time,
>mccoyj@U.ARIZONA.EDU writes:
>
>> I think that's only with parties, Scott. :)
>>
>> Seriously, though, if the cops ring your doorbell and you answer the
>> door, they still have to ask to enter (provided they don't have a
>> warrant).
>
>I think you missed my point... or maybe you got the point and just dismissed
>it. I think that if you just leave your door wide open, ANYONE can legally
>enter. I don't just mean the police, but I thought that a wide open door was
>considered a legal invitation for whoever just happens to be walking by to
>come on in. Has anyone else heard of this? It was a long time ago, so I
>could have gotten it wrong.
>
I know nothing about this from my practice, but I did have to write this absurd article on the "right of privacy" in law school in order to "get on law journal". The theory at that time about search warrants and their necessity was, I believe, that if you "break the curtilage [sp?]" you need a search warrant for a valid search and in order for whatever you stumble over not to be excluded from evidence in a subsequent trial. [The other issue of whether the cops can just come into your house whenever they want was, I believe, resolved a long long time ago - they can, since they are immune from tresspass actions by case law in most jurisdictions. However, I suppose that it is still an interesting question of whether they can be liable for assault and battery by pushing you out of the way in order to gain entrance.]
The curtilage was defined as someone's residence, plus, if it was a free standing residence, the yard immediately around the residence. The facts of the particular Supreme Court case that defined the law at that time were that the cops had wandered about on some poor farmer's back 40 acres [after going through several locked gates to get there] and had discovered a patch of pot without a search warrant. The issue was, again, should the pot be excluded from evidence on the basis of a breach of the farmer's "legitimate expectation of privacy" when the farmer had, after all, put up several locked gates between his acreage and the outside world. The issue was not whether the cops had "a right to nter."
The Court held that such evidence shouldn't be excluded since there was no legitimate expectation of privacy outside the curtilage of one's residence. [There were, however, other cases that said you had a legitimate expectation of privacy while speaking on a public telephone, so long as the telephone was in a telephone booth and you deliberately closed the door of the booth.]
However, that was 16 years ago, so things are probably a lot worse now.
Craig Bolton