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Officers Looking in Your Backyard? Lawful Police Conduct, Court Rules

Posted by Dmitry Gorin | May 27, 2008 | 0 Comments

Another relevant search and seizure case was recently decided by the California Court of Appeal. As discussed in other portions of this Law Blog, a criminal defense attorney brings a motion in court pursuant to Penal Code Section 1538.5 contesting the validity of police conduct. If the defense prevails on the motion, the officer's observation and seizures of evidence are ruled unconstitutional, and the evidence is excluded from court.This decision clearly helps the prosecutors: a police officer who boosted himself up on his toes in order to see over the defendant Tagged as: probation and sentencing laws


Farzad Mashhood on June 1, 2009 at 9:29 p.m. wrote: Looking at the situation here, it seems the judge was trying to protect the defendant's right to privacy. We shouldn't be allowing police officers to look into our backyards as they please, but at the same time, we shouldn't punish the police officer's investigation of a criminal. It's true that an officer cannot (legally) systematically peek into people's backyards. In this case, however, the officer was doing so with some reasonable cause. The man was known to be dangerous and the officer was merely aiming to protect civilians. In his quest in doing so, he may have possibly prevented harm as he saw the defendant with a weapon. This evidence, I believe, should be accepted by the court, despite that it may seem to have been obtained illegally. Throwing out this evidence discounts the officer's good police work. Personally, I'm not a fan of being investigated a lot and I especially don't think it's okay for police to be allowed to search things as they please. In this case, though, the officer was acting on his knowledge that the man who's backyard he was looking into was a harmful man; waiting for a warrant or some higher permission would not prevent immediate harm. Anonymous on September 2, 2008 at 3:07 p.m. wrote: While I agree that our rights as American citizens should not be violated in an abuse of power by law enforcement agents,I understand what the officer did and why he did it, however I truly believe the office did not follow the letter of the law as he is sworn to do so. In this case the judge is correct in the intial case being thrown out due to the illegal search. I think over turning the conviction is in the best interest of the people and the fourth amendment rights. Amanda Hester on June 6, 2008 at 2:25 p.m. wrote: While I agree that our rights as American citizens should not be violated in an abuse of power by law enforcement agents, the intial case being thrown out was absurd. What McElhany stated as justification for a violation of rights sounded as if he was not even listening to the facts of the case. The officer did not trespass in order to see the gun, he merely lifted himself slightly to see if the defendent was home. His intentions were not to search the property, he only wanted to talk with the defendent and ensure the safety of the couple's son. I certainly wouldn't be convicted on the charge of trespassing if i went around the side of my friend's home to see if they were there. The officers going onto the property to take the gun was only for the safety of the child, which is fully reasonable. Too many criminals get off or face lesser charges due to mistakes made by police officers. So when a police officer makes no mistake and does his job to the best of his ability to make the community safer, it is rediculous for a judge to stretch the limit of the law to unneccesarily free a criminal. Lisa Hong (CS 139) on June 2, 2008 at 3:13 a.m. wrote: I agree with the previous comment left by Sally that a lot of the cases listed reveal the fine line between actions that are legal and morally correct. Before reading all of the details of this case and only reading the title of the blog, I prematurely thought that the police officer obviously broke the law and invaded the privacy of the house owner. However, reading the entire case made it very clear that the police officer had enough reasonable evidence and also the moral responsiblity to do what he did. He was also risking his own life when he did this because the house owner and also the owner of the gun could have potentially shot him for invading his privacy. I believe that it was right for the police officer to do what he did especially for the couple's 7-year old's safety. The child could have been playing in the backyard, found the fun and tried to shoot it out of curiosity and seriously hurt himself or someone else. Kristen Fischer on June 1, 2008 at 9:44 p.m. wrote: Most cases on the law blog I tend to agree with the court Peggy Li on May 31, 2008 at 7:59 p.m. wrote: I agree that the officer did not violate the 4th amendment rights of the owner because he did so in protection of the 7-year old child and the woman inside. Being aware that this man had a violent history and that the 'missing car' was in front of the house, the officer could logicaly assume that the man was in the house. therefore when he saw the gun, he feard that this violent man use the gun to possibly hurt the woman and child. also as stated by another one of these commentors, the child was 7-years-old, and quite able to play with the gun himself. Although i feel that he is justified for taking the gun to prevent harm to the child and mother, i question his actions after taking the gun and screening the serial number. i assumed the the officer was there to protect the safety of the mother and child, not looking to arrest this man. i am conflicted because i do see the good that came out of the officer looking over fence, but it seems like an invasion of privacy to have a officer tippie-toe over a fence and use a flashlight to find the weapon. i guess that his invasion of privacy can be justified by the greater good, seeing that he did try to get into the house by knocking on the front door first. And as another person humorously stated, the guy should have made a higher fence if he wanted his privacy :) Kelsey Kernstine on May 29, 2008 at 3:44 p.m. wrote: I also agree with the Court of Appeal Anna Andersen on May 29, 2008 at 1:10 p.m. wrote: I also agree with the Court of Appeals that the officer's actions did not violate the homeowner unknown on May 29, 2008 at 1:10 p.m. wrote: I also agree with the Court of Appeals that the officer's actions did not violate the homeowner Sally Derohanessian on May 29, 2008 at 12:36 p.m. wrote: I can't help but notice how all of the cases posted in the Law Blog have such a fine line between what constitutes as breaking the law and what is morally correct; nevertheless, reading these actual cases makes it all the more interesting to see that even in law, not everything is black and white. There is a grey area, and I believe in this case, Officer Leahy stepped into that grey area when he climbed over the fence; and in doing so, I believe he did the right thing. I disagree with the judge's statements in claiming that Officer Leahy had 'absolutely no purpose'. That is absurd. The purpose was to protect a frightened girlfriend and child. If saving a life or preventing a mother and child from being harmed does not constitute as an officer's purpose for tresspassing to retrieve a gun, then what would be his purpose? I would rather learn that an officer has tresspassed in order to protect a citizen rather than read in the papers that a child and mother were shot because of a violent boyfriend who had a gun in his yard. Tresspass or not, climbing over that fence was the right thing to do; and I'm sure Officer Leahy felt he would rather have a clear conscience even if it meant breaking the law. I don't just agree with what he did; but I salute him for it. Nahal Hamidi on May 29, 2008 at 12:05 p.m. wrote: According to an earlier case, ?the basic rule of law is that to justify a warrantless entry by law enforcement in an emergency situation.? In this case, Officer Leahy observed the gun and was concerned for the safety of Chavez?s girlfriend and so he entered Chavez?s property. I disagree with Judge McElhany because Leahy did have reason to inquire and be suspicious of Chavez. He was only doing his job by inquiring around the house because he knew that Chavez was clearly at home. By leaving that situation, he would left a potentially dangerous situation considering that the fact that Chavez's girlfriend had called the police worried about her safety. I also do not believe that he trespassed as the trial judge ruled. He did not prop himself up or climb over the fence in order to see this gun, he merely stood up on his toes to ensure that no illicit activity was taking place within Chavez?s home. This is not a violation of the Fourth Amendment or a violation of privacy because Officer Leahy was doing job by reporting to the site and observing the gun. Therefore, I completely agree with Robie?s decision. Gabe Rose on May 28, 2008 at 2:52 p.m. wrote: This reminds me of that case that established that searching through someone's garbage is allowable without a warrant- it seems like if something is going to be in plain view, you violate your expectation of privacy and thus constitutional protections. I wonder if they used that case as precedent at all? Cassidy Preston on May 28, 2008 at 12:56 a.m. wrote: I agree with the Court of Appeal's decision to reverse the trial judge's granting of the suppression motion. The conclusions drawn by trial judge McElhany regarding the officer's motives and rights seem to be an inaccurate assessment of the situation at hand. Officer Leahy did not initially trespass Chavez' territory but rather knocked on his front door and then proceeded to search for him further by circling the home. It was never the officer's intention to trespass the home or to take anything from Chavez, but rather was to talk to Chavez and investigate the situation further in order to ensure the safety of the girlfriend and her son. Leahy's eventual trespassing onto Chavez' yard in order to retrieve the gun seems to me like the most logical course of action given the circumstances and appears to be what any person put in that position would have felt compelled to do in order to prevent any potentially undesirable consequences. To claim that Leahy had

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...


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