Posted: May 15th, 2023

Two officers were walking in a neighborhood known

Two officers were walking in a neighborhood known for high volumes of drug deals. They came across the car of an individual whom they had arrested two years prior for drug dealing. The car was parked on a curb in front of a residence.

One officer peeked inside the car, the other walked down the sidewalk to the house and up to the corner of the wooden fence surrounding the house. The second officer noticed a strange looking garden in the yard through the cracks of the fence. He put his foot in a small hole at the bottom of the fence and pulled his head up over the fence looking into the yard and noticed several plants that resembled marijuana growing in the yard.

He informed the other officer and they walked around to the back of the house to see if the owner of the house was home. As they walked around the house, three men in the back of the house noticed the officers through the cracks of the fence and quickly went inside the house. The officers then jumped over the fence and approached the house, ordering all occupants out of the house.

When questioned about the plants, the house owner admitted that it was marijuana. He was arrested.

https://www.oyez.org/cases/1985/84-1513

https://www.oyez.org/cases/2000/99-1132

Were the marijuana plants spotted by the officer in plain view under California v. Ciraolo? Why?
What details could be added to the scenario to increase the likelihood that the marijuana plants were in plain view? Explain. What details could be added to the scenario to decrease the likelihood that the marijuana plants were in plain view?
If the marijuana plants were spotted legally, did the officers then have the right to walk around the house? Explain.
Did the officers have a right to jump the fence and order everyone out of the house? Explain.
Did the officers have a right to make the arrest under Illinois v. McArthur? Explain.
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The marijuana plants spotted by the officer in the scenario were not in plain view under California v. Ciraolo. In Ciraolo, the Supreme Court held that aerial observation of a person’s backyard by police, even if done without a warrant, does not violate the Fourth Amendment to the U.S. Constitution. However, the officer in the scenario did not observe the marijuana plants from an aircraft. Instead, he observed them from the ground, by putting his foot in a hole at the bottom of the fence and pulling his head up over the fence. This is not considered plain view because the officer had to go to some effort to obtain the view.
Details that could be added to the scenario to increase the likelihood that the marijuana plants were in plain view include:
The officer standing on a ladder or other elevated platform.
The officer using binoculars or other optical device to magnify the view.
The marijuana plants being visible from a public right-of-way, such as a sidewalk or street.
The marijuana plants being visible from a place where the officer has a legitimate reason to be, such as the front yard of a neighboring property.
Details that could be added to the scenario to decrease the likelihood that the marijuana plants were in plain view include:
The officer standing on the ground, at ground level, and looking through a hole in the fence.
The officer not using any optical devices to magnify the view.
The marijuana plants being visible only from the backyard of the property, which is not visible from any public right-of-way or from any place where the officer has a legitimate reason to be.
If the marijuana plants were spotted legally, the officers would have had the right to walk around the house. This is because the officers would have been considered to be on public property, and they would have had a right to observe what was visible from that property.
The officers did not have a right to jump the fence and order everyone out of the house. This is because the officers were no longer on public property when they jumped the fence. They were now on private property, and they did not have a warrant to enter that property.
The officers did not have a right to make the arrest under Illinois v. McArthur. In McArthur, the Supreme Court held that an arrest cannot be made based on plain view evidence alone. The officers in the scenario did not have any other evidence that the marijuana plants belonged to the homeowner or that the homeowner was aware of their presence. Therefore, the officers could not have made a valid arrest.