Morning on the Q

Steve and I just finished our call in bit on Q-FM with Wags and Elliott. Always a good time over there, and we never fail to get some interesting calls. And by the way, congratulations to Wags on his 30 years on the Q.

Dan called and was wondering if it was legit for the cops to climb over his fence and pull up his "horticulture project" he had going out by his shed. The answer is "maybe." If it is visible to passers-by, or even from a police helicopter, then the police probably don't need a warrant to come on to your property and seize contraband. The surrounding of your house, which would include most suburban yards, is called the "curtilage" and is considered to be part of the home for privacy purposes. This is as opposed to "open fields" owned by the homeowner that are away from the home on a larger property. The open fields areas are not protected to the same degree by the Fourth Amendment from police intrusion and searches. In Dan's case, the linchpin will be how the officers became aware of the "garden" and on what basis they entered his property. There is an argument to be made that if they were on his property on two separate occassions, then they certainly had the time and the opportunity to obtain a warrant to conduct a search. Since they did not, the question turns to whether or not the evidence obtained (the green, leafy substance) can be used against Dan in any subsequent prosecution. Give us a call Dan, this is an interesting question.