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Re: Sneaky Game warden
[Re: cdcrosshunt]
#426779
10/17/12 11:18 PM
10/17/12 11:18 PM
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Joined: Oct 2005
Posts: 10,997 Warrior River Country
49er
Booner
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Booner
Joined: Oct 2005
Posts: 10,997
Warrior River Country
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but with them being able to wander around on your private property with no reason other than fishing for something to charge you with, they should have to follow the same rules as any other LE agency. This is what allows GW's to go on to your private property and look for something to charge you with as you say. Open fields doctrine: The open fields doctrine is a U.S. legal doctrine created judicially for purposes of evaluating claims of an unreasonable search by the government in violation of the Fourth Amendment of the U.S. Constitution, The open fields doctrine was first articulated by the U.S. Supreme Court in Hester v. United States,[1] which stated that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields."[2] This opinion appears to be decided on the basis that "open fields are not a "constitutionally protected area" because they cannot be construed as "persons, houses, papers, [or] effects." This method of reasoning gave way with the arrival of the landmark case Katz v. U.S.,[3] which established a two-part test for what constitutes a search within the meaning of the Fourth Amendment. The relevant criteria are "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable'."[4] Under this new analysis of the Fourth Amendment, a search of an object or area where a person has no reasonable expectation of privacy is, in a legal sense, not a search at all. That search, therefore, does not trigger the protections of the Fourth Amendment. In Oliver v. United States,[5] the Supreme Court held that a privacy expectation regarding an open field is unreasonable: …open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.[6] Courts have continuously held that entry into an open field—whether trespass or not—is not a search within the meaning of the Fourth Amendment. No matter what steps a person takes, he or she cannot create a reasonable privacy expectation in an open field, because it is an area incapable of supporting an expectation of privacy as a matter of constitutional law. In situations where the police allege that what was searched was an open field, this has the practical effect of shifting the argument from whether any given expectation of privacy is reasonable, to whether the given place is actually an open field or some other type of area like curtilage. This is because a person can have a reasonable expectation of privacy in areas classed as such. Here's what the Code of Alabama says: Section 1-3-1 Common law of England adopted.
The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the Legislature.
(Code 1907, §12; Code 1923, §14; Code 1940, T. 1, §3.) Section 13A-7-1 Definitions. The following definitions are applicable to this article:
(4) ENTER OR REMAIN UNLAWFULLY. ... A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privileges unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner. Section 13A-7-3 Criminal trespass in the second degree.
(a) A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in a building or upon real property which is fenced or enclosed in a manner designed to exclude intruders.
(b) Criminal trespass in the second degree is a Class C misdemeanor.
(Acts 1977, No. 607, p. 812, §2606.) I sure looks to me like the common law doctrine of "open fields" has been "altered or repealed by the Legislature". Alabama was once a common law "open range" state too. We changed that. Here's some of what our courts had to say about that doctrine of the common law: Our research reveals that prior to 1941 Alabama was an open range state where it was lawful for one to allow his livestock to go at large on the lands of another. Under Alabama's open range laws, the owner of livestock was not liable for damages for intrusions of stock on the lands of another. 1201*1201 The burden was upon the crop growing landowner to fence livestock out. Glover v. Pugh, supra; Randle v. Payne, 39 Ala.App. 652, 107 So.2d 907 (1958), cert. denied, 268 Ala. 697, 107 So.2d 913 (1959). In 1939, the legislature enacted a comprehensive stock law. Under its provisions, which include our present Code sections 3-5-2 and 3-5-3, Alabama was declared a closed range state. See, § 3-5-2(c), Code of Ala.1975. There were, however, provisions whereby a county could elect to become open range. Act No. 368, Acts of Alabama 1939, p. 487. In 1951, the legislature declared it unlawful to permit livestock to run at large in any county; abolished all open range counties; and repealed the Code sections providing for the creation of open range counties along with "all other laws or parts of laws in conflict herewith." Act No. 53, Acts of Alabama 1951, p. 266. In other words, the legislature worked a complete change in Alabama's stock laws and in doing so repealed all laws that were in harmony with the concept of an open range. Whereas under prior law the burden was on the landowner to fence stock out, Hurd v. Lacy, 93 Ala. 427, 9 So. 378 (1890); Rowe v. Baber, 93 Ala. 422, 8 So. 865 (1890), the burden is now on the stock owner to fence his stock in. Glover v. Pugh, supra; Randle v. Payne, supra; Revel v. Prince, 37 Ala.App. 457, 69 So.2d 470 (1954); §§ 3-5-2(a) and 3-5-3(a), Code of Ala.1975. We find § 3-4-6(a) to be in harmony with the concept of open range and in conflict with present law inasmuch as § 3-4-6(a) in effect requires a landowner to erect a lawful fence to protect his crops and shields a stock owner from liability when the landowner has failed to do so. Code section 3-4-6(a) has, therefore, been repealed by the 1951 Act and it is no longer the law of this state. For this reason, we find the trial court did not err in refusing plaintiff's requested written charges. Monfee v. Seymore, 392 So. 2d 1198 - Ala: Court of Civil Appeals 1980
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