Illegal Search and Seizure. What is it? 4th Amendment Rights Explained.
What happens if an officer trespasses onto a property with a fence and privacy sign without obtaining a warrant, and finds something illegal?
The Fourth Amendment which states that, “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.”
A recent case dealing with police officers’ right to enter the property of someone who has
a privacy fence and either a no trespassing or private property sign posted without first
obtaining a warrant has important implications on our Fourth Amendment rights.
The case, State of Arizona v. Cody Mitchell Lohse, focused on whether or not police
officers had the right to enter Lohse’s property without a warrant, where they discovered
drugs, guns, and drug paraphernalia. Lohse argued that since the officers passed through
two fences, one of which had a private property sign posted on it, the officers “trespassed
into the curtilage of [his] home.” The trespass violated the defendant’s Fourth
Amendment right to be free of unwarranted searches and seizures.
Lohse was initially convicted of a number of drug-related offenses, but upon appeal of
that initial decision, the court unanimously found that the officers, if there was in fact a
privacy fence and no trespassing sign in place at the time of the incident, did not have the
right to enter Lohse’s property.
“Thus, because law enforcement officers without a warrant are no more privileged to
enter the curtilage of a home than the general public… entry under such circumstances
would constitute an unreasonable search under the Fourth Amendment,” wrote Chief
Judge Peter Eckerstrom.