In many marijuana trafficking cases, police will discover marijuana growing in the backyard of a person's home. In the case of a marijuana grow house, the plants will be discovered in a detached building, such as a shed or detached garage on the property.
Now you would think that the constitutional protection against unlawful searches would automatically extend to your own backyard. It's not that black and white. The Supreme Court created the "Open Fields Doctrine," which is an exception to the requirement that the police need a search warrant in order to search your property.
The Open Fields Doctrine states that a person cannot have a reasonable expectation of privacy in open fields surrounding their residence. Since many people in South Florida (namely rural areas such as the Redlands and Southwest Ranches) have more than one acre of property, this doctrine permits police officers to simply walk onto your land without a warrant if they have probable cause to believe that marijuana is being grown on the premises.
For instance, if you live on an acre of unfenced land, you cannot reasonably expect to have privacy on every corner of your land. So if you are growing marijuana on your land in an area that is significantly removed from the residence, the police can very likely access it without having to obtain a search warrant.
Now here's the thing - police officers often think that the Open Fields Doctrine means that as long as they do not enter your house without a warrant, they can do whatever is necessary to access your property if they think you are growing marijuana.
The courts have narrowed the Open Fields Doctrine so that many properties are still protected. Courts typically state that the curtilege of your property - the immediate outlying areas of your home, including nearby outbuildings - is protected under the 4th Amendment. This means that cops cannot come into your backyard and search the area immediately surrounding your house without a warrant.
Also - the courts look to see what measures the owner or occupant of the home has taken to ensure their privacy. Is the property fenced? Are there openings in the fence? Is the fence tall enough so that the public can't see into the yard?
I have seen cases where cops have jumped over large fences and simply walked around a person's fenced-in yard under the guise of the Open Fields Doctrine.
If you are arrested for having a marijuana grow house or for having marijuana plants growing in your backyard, contact a criminal defense attorney to evaluate whether you have a valid motion to suppress based on the officers' violation of your right to be free from an unlawful search. The police may claim that they are allowed to access the property under the Open Fields Doctrine. However, a police officer's misunderstanding of the law should not cost you your freedom. Trafficking in marijuana carries mandatory minimum prison time and fines. If you don't fight your charges, you could end up serving mandatory day-for-day prison time.
Eric Matheny represents clients charged with all marijuana offenses, including possession of marijuana, possession with intent to sell marijuana, trafficking in marijuana, and marijuana grow house related charges. Eric Matheny represents clients in Miami-Dade County and Broward County.