The question came up in Rogers County when the office of Sheriff Scott Walton apparently placed a camera somewhere on 400 acres of farmland owned by county commissioner Kirt Thaker. Walton said he did not need a warrant.
“It’s not intrusive of anybody’s privacy,” Walton told a KJRH news reporter.
Expectations of Privacy and Open Fields
Strange as it may seem to some who consider the doctrine that one’s home is a castle would extend to one’s privately held fields and forests, the law is not so clear.
U.S. courts have carved out something now known as the “Open Fields Doctrine” that claims a person has no reasonable expectation of privacy on private lands beyond their curtilage, which for practical purposes is whatever parcel might reasonably be considered part of the yard around the residince.
As anyone who has closely followed recent debate about electronic surveillance might know, courts have determined that an expectation of privacy is the deciding factor in whether law enforcement agencies need a warrant to snoop on electronic communication. If your Internet service provider can see your emails, you have lost your expectation of privacy.
Law enforcement may obtain your email from cooperative communications companies or issue a subpoena without the court oversight involved in a warrant. Likewise, federal courts have held that it is your expectation of privacy on private lands that is unreasonable when it comes to Fourth Amendment protections against unreasonable searches and seizures.
The U.S. Supreme Court stated in Oliver v United States, 466 U.S. 170, (1984):
“Nor is the government’s intrusion upon an open field a ‘search’ in the constitutional sense because the intrusion is a trespass at common law.” … “The premise that property interests control the right of the Government to search and seize has been discredited.” … “Since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) the touchstone of Amendment analysis has been the question of whether a person has a “constitutionally protected reasonable expectation of privacy.’”
Does the Open Fields Doctrine Apply in Oklahoma?
Twice in 2002, the Oklahoma Court of Criminal Appeals decided the state constitution does not provide police the right to search private land without a warrant. Those cases seem to indicate Oklahoman jurisprudence differs from federal jurisprudence with regard to unwarranted searches of open fields.
Oklahoma’s constitutional protections against unreasonable searches and seizures are worded almost identically to the U.S. Constitution’s Fourth Amendment. The Oklahoma court’s 2002 decisions, however, interpreted the state constitution to provide better protection against government searches of open fields.
One case, unpublished, involved a man convicted of growing marijuana. Police acting on a tip found marijuana after crossing three fences and ignoring a no trespassing sign. That case cited as precedent another case, Dale v. State 2002 OK CR 1, in which police crossed a locked gate to arrest a man for growing marijuana they had spotted from an aircraft.
“[C]limbing over the locked driveway gate, which was part of a secure perimeter fence, and proceeding between the two residential structures in order to confront Appellant was an unlawful entry onto the curtilage of the home, and as such, violated Appellant’s constitutional protection from unreasonable intrusion,” the Oklahoma Court of Criminal Appeals concluded in Dale v. State.
In dissenting to the court’s second, unpublished 2002 opinion, Judge Gary L. Lumpkin said the cases differ because the second case did not involve the issue of consent. In Dale v. State, the defendant had consented to a search after heavily armed police swarmed his property.
Lumpkin noted, however, that the appellant’s land had been posted with no trespassing signs. The appellant in the unpublished case had argued that he had exhibited a subjective expectation of privacy in the area searched.
Does Oklahoma Law Allow Warrantless Searches of Farmland?
A 2006 statute further complicates the question. The trespass statute applies to private land that is primarily devoted to farming, ranching, or forestry purposes. Okla. Stat. tit 21 § 1835.2 grants an exception for peace officers and others engaged in performance of their duties. But the scope of their duties would be governed by Oklahoma’s constitution, and the precedent set by courts that interpret the constitution.
Would Oklahoma courts allow covert searches that would be prohibited under Dale v State if instead police acting without a warrant surrounded a house and sought permission to conduct an open-field search? It would seem not, but one never knows without examining the facts and law as it relates to a particular case, then trying those facts before whatever court is seated at the time.
Free Consultation: Tulsa Criminal Attorney
If you have been arrested, charged or convicted of a crime based on a warrantless search of your private property in Oklahoma, contact an Oklahoma criminal defense attorney. For a free consultation with a Tulsa criminal lawyer, call Wirth Law Office at (918) 879-1681 or send a question using the form at the top of this page.