Alleged Pot Growers Can’t Nix Surveillance Photos | Courthouse News Service
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Alleged Pot Growers Can’t Nix Surveillance Photos

(CN) - Two men facing drug charges cannot exclude surveillance images of their marijuana grow site that police captured without a warrant, a federal judge ruled.

Law enforcement installed the cameras without authorization from a judge to monitor a suspected 22-acre grow site in Athelstane, Wisc.

Manuel Mendoza and Marco Magana, two of the defendants charged in July 2012 with conspiring to manufacture and distribute marijuana, filed a motion to suppress the evidence against them collected by the cameras.

In claiming that the evidence violated their Fourth Amendment rights, they noted that there are "no trespassing" signs throughout the mostly wooded property. A third defendant who owns the land in question did not join the motion.

Last week, U.S. District Judge William Griesbach agreed with the recommendation of U.S. Magistrate Judge William Callahan Jr. to uphold the evidence.

The magistrate's five-page report notes that the property includes a single-family residence with a detached garage, a small wood shed, and a locked entrance gate.

Callahan concentrated on cartilage, "the part of one's property, besides the house itself, in which private activities normally take place," in resolving the matter.

"Outside the curtilage, officers observed marijuana plants growing in a small clearing," Callahan wrote. "They then installed surveillance cameras covering the marijuana grow. A few days later, a magistrate judged issued a warrant authorizing the installation of surveillance cameras on the property."

In the 1984 case Oliver v. United States, "the Supreme Court held that open fields, as distinguished from curtilage, are not 'effects' within the meaning of the Fourth Amendment," Callahan added. "The fact that the intrusions at issue were trespasses at common law did not affect the Fourth Amendment analysis."

Though Mendoza and Magana argued that the locked gate and signs gave them an expectation of privacy, Callahan again relied on Oliver to shoot down this defense. "The court rejected this same argument, reasoning that, under a case-by-case approach, 'police officers would have to guess before every search whether landowners had erected fences sufficiently high, posted a sufficient number of warning signs, or located contraband in an area sufficiently secluded to establish a right to privacy,'" Callahan wrote.

Mendoza and Magana are scheduled to face a jury trial on Jan. 22, 2013.

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