Anthony Bandiero, Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

A roadside chat on seizing evidence that is in plain view but behind a locked gate. An officer responds to a fenced, locked property with a theft victim whose GPS tracker is pinging to his stolen box trailer, which he can see from the fence. Is that enough to go in and check the serial number, or do you need a search warrant?

Let’s talk about seizing evidence in plain view, but the evidence is actually behind a locked gate.

The officer says: officers respond to a property that is fenced in and gated with a lock. The victim is on scene with a GPS device pinging to the stolen property. The property was a small box trailer. Based on the victim seeing and describing the property, as well as the GPS pinging the location, is that enough probable cause to enter the property to further inspect for a serial number, or is a search warrant needed?

Is a victim’s description plus a GPS ping probable cause?

Let’s lay some foundations here. First of all, this is probable cause all day, twice on Sunday. This is clearly a fair probability that that utility trailer that you’re looking at is his trailer. Especially the pinging, of course, is really, really good. He probably has some other evidence. Maybe it’s registered to him and so forth. But you believe the witness, the victim. He has that evidence. We have probable cause.

We know that a judge, based on these facts, is going to give you a search warrant to go in there and recover that trailer, if you ask for it. You don’t have to read the VIN. That’s called certainty. Yes, you’ll have certainty after you recover it, but you don’t need certainty to go get a search warrant.

Do you have lawful access for a plain view seizure if the trailer is on curtilage?

Now, do you even need a search warrant? Well, we have plain view. Right to be, right to see. Plain view seizure requires lawful access. Do we have lawful access here? The answer is probably no.

This sounds like this may be curtilage. Curtilage is an area around the home that is protected like the home itself, and we cannot enter curtilage with the sole intent, basically, to go there and recover stolen property. That is Collins v. Virginia, U.S. Supreme Court, where officers entered curtilage to recover a stolen motorcycle.

So if this is curtilage, which it may be because of the fence and everything, then no, you cannot do it. You will lose the Fourth Amendment case on that. In other words, that trailer will likely be suppressed as a fruit of the poisonous tree, because the entry would be unlawful.

What if the fenced lot is a business, not a home?

But Anthony, it’s actually not curtilage. It’s almost like a business lot. It’s a company lot, it’s closed, there’s no homes on it and so forth.

Okay, well, I got the good news and the bad news. The good news is that I don’t think constitutionally the evidence would be suppressed if you actually broke the lock and recovered it, because it’s not a Fourth Amendment violation at this point. That area is not a structure. I don’t think the courts are going to look at it as that highly protected. It’s probably an open field. And just because there’s a fence around it does not necessarily mean that what’s within it is not an open field.

That case is Dunn, where the Supreme Court said that the cops hopped like four fences and saw evidence in plain view. They didn’t recover anything, but according to the U.S. Supreme Court they were lawfully present under the Constitution, and there was no Fourth Amendment violation by them looking at the evidence inside a barn, and then that led them to go get a search warrant. That’s kind of probably what’s going on here. It’s probably not protected by the Constitution.

Is cutting the lock a crime even if it is not a Fourth Amendment violation?

However, in the vast majority of states, breaking that lock and entering that fenced yard would absolutely, absolutely be a crime. It would, at least in most states, be a criminal trespass, maybe even a burglary. Some courts may struggle with how can you be charged with burglary by stealing your own stuff back. But I’ve seen cases, by the way, I’ve seen courts say that you have no right to go enter a structure. And some laws include gated lots. You don’t have the lawful authority to re-enter a locked, gated area to recover your own property. That still would be burglary under the law. So you have to look at your state law and so forth.

But the point is, no matter what, in every state, in every state, it’s going to be a crime to some degree. Why would officers commit a crime to recover evidence for the victim? We don’t commit crimes. We catch criminals. We don’t become criminals. So this is not going to work.

If I’m on scene with this case, I am absolutely not letting my cops cut this guy’s lock in order to recover the evidence. A, I want a good case, and B, I don’t let my cops commit crimes while we enforce the law.

Is there exigency to recover the trailer right now?

The last thing is, maybe you have exigency. There’s nothing here to say we have exigency. But maybe you can give me some facts where, Anthony, if we don’t get this trailer right now, we’re going to lose it. I don’t know. Whatever I say after that would be making up facts, which I don’t want to make up. Give me some facts that you maybe have exigency. But the point is, you probably don’t.

So at the end of the day, tell the victim, hey, we’re gonna get a warrant. It’s going to take a while. Have a seat, and we’ll get your property the right way.

The short version

  • A victim’s description plus a GPS ping is probable cause all day, twice on Sunday. A judge is going to give you a search warrant on these facts.
  • Plain view seizure requires lawful access. If the fenced lot is curtilage, you cannot enter it with the sole intent to recover stolen property. That is Collins v. Virginia.
  • If it is a business lot with no home, it’s probably an open field, and a fence around it does not necessarily change that. That is Dunn.
  • But in every state, cutting the lock and entering is going to be a crime to some degree. We don’t commit crimes. We catch criminals.
  • There’s nothing here to say we have exigency. Tell the victim we’re gonna get a warrant, and we’ll get your property the right way.

I hope this discussion helped you. Until next time, my friends, you stay safe.

Related from Blue to Gold

This article is a lightly edited transcript of a Blue to Gold roadside chat and is for training purposes only. It is not legal advice. Check your own state law and your prosecutor before acting. Source video: EP#789