Let’s say you and your friends decide to go camping. But instead of a sanctioned camping area, you decide to go to an out of the way place in the woods. Or to an abandoned or unfinished house.
The police come – can they search your things even if they don’t arrest you for trespassing? The answer is yes, they can.
One Ohio case recently discussed this issue – State v. Elmore, 2016-Ohio-129.
Group Sets Up Campsite on Someone Else’s Property
In this case, an officer was on patrol around midnight when he saw a car parked in a wooded area near a river. He also saw what appeared to be a camp fire burning.
He stopped to investigate. As he approached, he saw three people sitting near the fire, and two men standing behind a tent.
He asked the group if they had permission to be on the property, and they responded that they did not. They also said that they didn’t know who owned the property.
On the ground behind the tent, the officer found a 20-ounce plastic bottle containing a clear liquid, a baggie containing a green leafy substance, a joint, and coffee filters stuffed inside a cigarette package. No one claimed ownership of the tent, bag or other items.
He then looked inside the car. Without opening the door or shining a flashlight into the car, he by moonlight observed a clear hose, which he believed could be used to make methamphetamine. He also saw a pipe above the steering wheel, which was similar to the pipes he had seen that were used to cook methamphetamine.
He called a canine unit. The dog, Figo, alerted on the vehicle at the trunk and the passenger door. A search of the vehicle produced the pipe with residue, the clear hose, and a butane torch. (The owner of the car had an outstanding warrant. Thus, the car was properly searched incident to his arrest.)
Back in the tent, he found more drug paraphernalia. The defendants were charged with illegal use or possession of drug paraphernalia among other charges.
No Expectation of Privacy for Trespassers
The pivotal question was whether the defendant had an expectation of privacy in the area searched.
Answer: Because he was trespassing – the area was fair game for a warrantless search.
When you intentionally or voluntarily put your property in a place where you have no legitimate expectation of privacy, such as an abandoned shack or as a trespasser upon another’s property, you have no legitimate reasonable expectation that your stuff will remain undisturbed. So, under the law, there is no standing or right to contest a search.
In fact, if you are trespassing, you have no more expectation of privacy than if you had placed the items in plain view.
As the items were voluntarily left in an area in which the defendant did not have an expectation of privacy, he lacked standing to challenge the seizure and search.