Court Says Police Can Install Cameras On Your Property Without Warrant If Your Property Is A 'Field'

from the because-that-won't-be-abused dept

We just heard some good news about the protection of the 4th Amendment with regards to cell phone data. However, we've also learned that some law enforcement officials apparently find getting warrants to read our email to be incredibly annoying. These LEOs shouldn't fret too much as they now have some good news of their own -- they apparently don't need a warrant to turn your property into a movie set if your property resembles an open field.

That's the ruling from Green Bay, Wisconsin, where the fight against the world's mildest drug (marijuana) is apparently worth twisting the 4th Amendment into a giant pretzel.
U.S. District Judge William Griesbach ruled that it was reasonable for Drug Enforcement Administration agents to enter rural property without permission -- and without a warrant -- to install multiple "covert digital surveillance cameras" in hopes of uncovering evidence that 30 to 40 marijuana plants were being grown.
This is in response to the two defendants in the case seeking to have footage from said surveillance cameras thrown out in their court case on unreasonable search and seizure grounds. Judge Griesbach made this ruling on the recommendation of US Magistrate William Callahan, who based his position on a US Supreme Court Case ruling that open fields were not covered under the 4th Amendment and didn't require a warrant. Perhaps ironically, this ruling was made in 1984, a time when the prevalence and sophistication of such surveillance equipment wasn't what it is today.

Still, I'm struck by two problems in this ruling (and the previous Supreme Court ruling as well). First, the two defendants in this case had fences and signs up around their property that said "No Trespassing", so I'm not sure if the definition of "open field" fully applies here. Secondly, even if you argued that it did apply, how is this exception to the 4th Amendment not completely throwing the door wide open for abuse? What, after all, constitutes an "open field"? Is there a certain acreage criteria that needs to be met? A certain number of trees or shrubberies? Rabbit hole count?

And this doorway to abuse has been opened all because police didn't want to bother to get a search warrant to put video equipment on private property.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Me again, Oct 31st, 2012 @ 1:03pm

    Bye bye rights

    "how is this exception to the 4th Amendment not completely throwing the door wide open for abuse? "

    That is its intended purpose. You have no more right to privacy.

    Thanks 9/11.

     

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    Forest_GS (profile), Oct 31st, 2012 @ 1:06pm

    I would of expected a field with "Do Not Trespass" signs would obviously be someone's property.

     

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      Anonymous Coward, Oct 31st, 2012 @ 1:08pm

      Doesn't matter if it's a trespass.

      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.

      http://en.wikipedia.org/wiki/Open_fields_doctrine

       

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        Zos (profile), Oct 31st, 2012 @ 1:23pm

        Re: Doesn't matter if it's a trespass.

        "fences and no trespassing signs" if you have to jump a fence, it's not open. almost by definition.

         

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          Mason Wheeler, Oct 31st, 2012 @ 1:34pm

          Re: Re: Doesn't matter if it's a trespass.

          Nope. From the Wikipedia article:

          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.

           

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            PlagueSD (profile), Oct 31st, 2012 @ 1:40pm

            Open field = we can film cops in public

            And there's our excuse to photograph and film police officers in public. If the cops want to put up cameras in an "open field" then we can use the same excuse to film cops in public as there is "no expectation of privacy" in a public place. Can't wait to see the next time someone gets arrested for filming cops in a public place.

            Oh this is gonna be fun to watch!

             

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            Chosen Reject (profile), Oct 31st, 2012 @ 1:48pm

            Re: Re: Re: Doesn't matter if it's a trespass.

            Keep reading the Wikipedia article:
            Courts make this determination [whether open field or curtillage] by examining "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by."
            I don't know what kind of fences were used in the case linked to, but it sure seems to me that fences make "the area included within an enclosure" and that the defendants have taken steps "to protect the area from observation by people passing by".

            Regardless, am I the only one that gets annoyed at people using the courts as a measuring rod for whether or not rights are being taken away? The accusation here is that the government is taking away our rights, and people will justify it with court decisions that removed those rights. Here we have an accusation that rights have been taken away, and it's justified by saying that courts have never considered those rights to be rights or that it's OK that the rights were taken away. There isn't any discussion of whether the claimed rights are actually rights except an appeal to court authority, the same courts that are a part of the government who is taking away rights. It doesn't make sense to me.

             

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              btr1701, Oct 31st, 2012 @ 3:54pm

              Re: Re: Re: Re: Doesn't matter if it's a trespass.

              > Regardless, am I the only one that gets
              > annoyed at people using the courts as
              > a measuring rod for whether or not
              > rights are being taken away?

              That's a hallmark of this particular AC-- who is really Average Joe in stealth mode. As long as a court says it's okay, he thinks the issue is settled and really shouldn't even be criticized any more.

              Had he been alive at the time, I'm sure Average Joe wouldn't have had a problem with the WWII Japanese internments, either, because, hey, the Supreme Court said it's perfectly fine to rip people from their homes, take everything they have, and imprison them indefinitely merely on the basis of their cultural heritage.

              If the Court said it, it must be true!

               

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              John Fenderson (profile), Oct 31st, 2012 @ 4:06pm

              Re: Re: Re: Re: Doesn't matter if it's a trespass.

              am I the only one that gets annoyed at people using the courts as a measuring rod for whether or not rights are being taken away


              No, you're not the only one.

               

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          Anonymous Coward, Oct 31st, 2012 @ 1:40pm

          Re: Re: Doesn't matter if it's a trespass.

          "Because open fields are accessible to the public and the police in ways that a home, office, or commercial structure would not be, and because fences or 'No Trespassing' signs do not effectively bar the public from viewing open fields, the asserted expectation of privacy in open fields is not one that society recognizes as reasonable." - Oliver v. United States (1984)

           

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            velox (profile), Oct 31st, 2012 @ 3:33pm

            Re: Re: Re: Doesn't matter if it's a trespass.

            " ...fences or 'No Trespassing' signs do not effectively bar the public from viewing open fields"
            The focus of this quote from the previous opinion is that the public can readily view an open field. There is a very clear difference between simply viewing an empty field and trespassing a property to install surveillance equipment. Certainly no court would consider it lawful for a member of the general public to trespass for the purpose of installing surveillance equipment.
            This current decision therefore has serious logical weakness and a successful appeal would seem quite possible.

            Let's also not forget that the chief issue here is not whether the surveillance itself was a problem, but whether this surveillance can be done without a warrant. The mere presence of an illegal plant should have been adequate to establish probable cause, and therefore a warrant should have been easily obtainable. Why was it not sought?

            Perhaps someone in law enforcement can explain to all of us why the use of a warrant is so undesirable, and what is the motivation is to skirt the clear and simple words of the 4th Amendment.
            It would be easy for an outside observer to guess that the reasons are either 1) sheer laziness and paperwork dodging or 2) avoidance of a documentation trail which could allow other wrongful activity to be revealed.
            Perhaps I'm wrong about that, but if so, I'd like to hear why.

             

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        btr1701, Oct 31st, 2012 @ 3:49pm

        Re: Doesn't matter if it's a trespass.

        > 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.

        I wonder what would happen if the property owner(s) came across these government agents in the act of installing their devices-- perhaps having been alerted by some security equipment of their own-- and disarmed them and held them under citizen arrest for trespassing.

        They may not have a legal expectation of privacy, but they sure as hell still have the right to exclude whomever they like from their land and if they catch someone trespassing-- even cops-- they have the right to arrest, detain, and press charges for it.

         

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          Anonymous Coward, Oct 31st, 2012 @ 9:41pm

          Re: Re: Doesn't matter if it's a trespass.

          What's the statute of limitations on a trespassing charge? If the officers in question admit to putting the cameras there, they've admitted to the trespass.

           

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      Joe, Nov 25th, 2012 @ 3:52pm

      Re:

      A better question is why put cameras on an open field? Are those guys reta**ed or something? You can fly a helicopter practically anywhere you please and they can see without any possible warning unlike the small chance that the property owner finding the cameras. Yes, I can that the camera is cheaper than a helicopter, but one helicopter can cover a county... Not to mention that if it's not worth the effort to make a flyby, it's not worth the effort to trespass and risk getting caught.

      'Weed' is a rather visible plant. Common sense says that if they see something that looks like it might be cannabis, then it should be easy to get a warrant to place the camera or take plant samples. Of course, I could also imagine needing THC measurements in places where it's legal to grow. However, we're talking the US which ATM has a legal minefield for hemp growers. ;)

       

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        Tired Desk Clerk, Nov 29th, 2012 @ 3:33am

        Re: Why put cameras on an open field?

        Perhaps they've already seen that the crops are there from the Helicopter, but are unsure of who is growing them. Rather than assume it's the land owners of a large property, they surveil the area to see who exactly is coming and going. This way they would be able to get not just the person who owns the land, but any accomplices as well.

         

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    Chris-Mouse (profile), Oct 31st, 2012 @ 1:07pm

    So the court is saying that either trespassing on private property is not illegal, or else that evidence obtained via illegal means is now acceptable in court.
    Either way, this is bad news.

     

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      Anonymous Coward, Oct 31st, 2012 @ 1:11pm

      Re:

      They're not saying trespass is legal; just that it might not constitute a search within the meaning of the 4th Amendment.

       

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        Yakko Warner (profile), Oct 31st, 2012 @ 1:18pm

        Re: Re:

        If the trespass is illegal, wouldn't that negate any evidence collected during that illegal act?

        And if the evidence isn't thrown out, doesn't that imply the trespass wasn't illegal?

         

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          Anonymous Coward, Oct 31st, 2012 @ 1:53pm

          Re: Re: Re:

          Not if it's still in compliance with the 4th Amendment. SCOTUS said in Oliver that "an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home." Even if they own the land in question and have it fenced off. So clearly a trespass alone does not constitute a search, since fencing off an open field does to by itself create a reasonable expectation of privacy (according to the courts).

           

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            Anonymous Coward, Oct 31st, 2012 @ 1:54pm

            Re: Re: Re: Re:

            does not by itself* (thanks autocorrect)

             

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            DCX2, Oct 31st, 2012 @ 2:02pm

            Re: Re: Re: Re:

            I think GP's point is that if the police gathered evidence through the commission of a crime - in this case, trespassing - then the evidence was collected illegally. It doesn't matter whether there was a 4th amendment search or not, evidence gained by breaking the law is forbidden.

            The only way I see this video being admissible is if the government agents in question did not in fact trespass on the person's property.

             

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            Chronno S. Trigger (profile), Oct 31st, 2012 @ 2:12pm

            Re: Re: Re: Re:

            So an individual has no expectation of privacy in their yard if their yard is an open field. OK, I'll accept that. But the cops weren't watching the property from the road, they jumped a fence with a "No Trespassing" sign and installed surveillance equipment. While a violation of privacy is out of the question, trespassing and vandalism aren't.

            My question is how does that open field law affect me shooting, or otherwise destroying garbage that was abandoned on my property?

             

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              identicon
              Anonymous Coward, Nov 1st, 2012 @ 5:07am

              Re: Re: Re: Re: Re:

              Instead of shooting the cop's cameras ...

              1. set up a montor directly in front of one
              2. play a couple of Disney movies, a bunch of MP3s, and a couple of porn movies.
              3. notify the MPAA, the RIAA, and John Steele of the infringing copies made by the cops.
              4. ????
              5. profit!

              ;-)

               

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    identicon
    Anonymous Coward, Oct 31st, 2012 @ 1:13pm

    First, the two defendants in this case had fences and signs up around their property that said "No Trespassing", so I'm not sure if the definition of "open field" fully applies here. Secondly, even if you argued that it did apply, how is this exception to the 4th Amendment not completely throwing the door wide open for abuse? What, after all, constitutes an "open field"? Is there a certain acreage criteria that needs to be met? A certain number of trees or shrubberies? Rabbit hole count?

    And now you know how any law school criminal procedure class discussion of the open fields doctrine begins.

     

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    Lord Binky, Oct 31st, 2012 @ 1:15pm

    I thought to be a field required no structures with the exception of one road and a black knight.

     

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    Yakko Warner (profile), Oct 31st, 2012 @ 1:17pm

    Isn't there an easier way?

    Seems it would've been easier just to get a drone to fly over the property. You can get those remote-controlled quadcopters for under $50 nowadays; slap a webcam on one and you're done.

     

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      identicon
      Mason Wheeler, Oct 31st, 2012 @ 1:31pm

      Re: Isn't there an easier way?

      And how exactly will you "slap a webcam on one"? If it's not designed to mount a webcam, you'll have to stick it on externally in some way. And this will also require a power source, such as a battery, and a storage device to hold the video you're taking, or a wireless communicator of some sort to transmit it. Either one will add to the power drain, and batteries are *heavy*.

      So not only are you mounting external devices on your toy copter, which will screw up its aerodynamics, you're also adding a non-trivial amount of weight. Both will significantly impact its ability to fly.

      tldr: Turning a $50 toy RC copter into a surveillance drone is not simple, due to problems with those pesky laws of physics.

       

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    identicon
    Anonymous Coward, Oct 31st, 2012 @ 1:24pm

    The whole drug war is a sham, that it can be used as an excuse to violate constitutional rights is even more outrageous.

     

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    identicon
    Anonymous Coward, Oct 31st, 2012 @ 1:26pm

    1a. File patent for long range, high-definition real-time MRI-scope
    1b. Invent long range, high-definition MRI-scope
    2. Target remote location
    3. Record images of magnetic field
    4. ??????????*
    5. PROFIT**















    * (watch people hiding in terror / running from flying ferromagnetic objects)
    ** (you can skip to this step at any point after 1b)

    /trollphysics

     

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    identicon
    Anonymous Coward, Oct 31st, 2012 @ 1:33pm

    End the Patriot act and the NDAA. Vote Gary Johnson 2012
    http://www.garyjohnson2012.com/issues/civil-liberties

     

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    Greevar (profile), Oct 31st, 2012 @ 1:52pm

    I find it disturbing that our police no longer serve to protect the innocent. Maybe they never did? If the primary function of the police is to protect the rights of the innocent, they wouldn't be looking for loopholes to violate the constitution nor disregard it entirely. A police force that first and foremost protects our rights, as they should, would not violate the rights they've sworn to protect.

    It's also a tragedy that we will incarcerate innocent people just to be certain that the guilty ones don't get away. This logic astounds me because if you take two seconds to think about it, the guilty person already got away because you convicted the wrong person and assumed your mission is complete.

    Our entire so-called "justice" system is predicated on doling out punishment rather than solving social inequities that caused the crime to happen in the first place so that it doesn't trigger more crime. We're so absorbed into this penal system that we think it's more important to punish the wicked than it is to protect the innocent. Or worse yet, we believe the innocent can be better protected by violating those rights we hold self-evident.

    This is wrong, very wrong. It is far better to let a criminal go free than it is to convict an innocent person while that criminal still roams free. We're not being "tough on crime", we're being dismissive of our fundamental rights. The police are breaking their oaths in order to make their job easier. I say that's just too bad. Their job should be hard. They should have to adhere to due process because it was put there to protect the rightful liberties of the people.

    Temporary safety should never be a justification to tear down our fundamental liberties. If a guilty person gets away, that's fine. The police are not going to violate my rights just so they don't have to work so hard. These people took on a huge responsibility and they should damn well live up to it in all aspects. And they should be held to a higher standard than the rest of us because they bear that responsibility.

     

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    SuperSparky, Oct 31st, 2012 @ 2:00pm

    Oaths

    Um... The U.S. Constitution specifically does not have exceptions to requiring a warrant; no "except fields" in there. This judge took an oath to uphold the Constitution and this shows he is clearly ignoring his oath and legislating from the bench. If this is an elected judge, then he needs to be voted out.

    The Police officers need training on the U.S. Constitution. In fact, it should be required training. It was written so a twelve year old could understand it. Taking an oath to Protect and Defend the people, does not mean to injure the people by eliminating their rights.

     

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      DCX2, Oct 31st, 2012 @ 2:06pm

      Re: Oaths

      Unfortunately, the 4th amendment does have something along the lines of "except fields", although it is far more vague. The 4th explicitly says _unreasonable_ searches. It then comes down to how you define "unreasonable", which is why the Plain View Doctrine exists.

       

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      Anonymous Coward, Oct 31st, 2012 @ 2:08pm

      Re: Oaths

      You don't need a warrant for a search if the courts don't consider what you're doing to constitute a search. If the courts were saying "it's a search, but you can search fields without a warrant," your point would stand. But they're saying it's not a search at all. Quibble with that, but don't say they're claiming to create an ad hoc exception when they're not.

       

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        John Fenderson (profile), Oct 31st, 2012 @ 4:18pm

        Re: Re: Oaths

        don't say they're claiming to create an ad hoc exception when they're not.


        Yet they have declared something that is obviously a search as not a search at all. On that point, I will absolutely claim that they've created an ad hoc exception.

         

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    identicon
    Anonymous Coward, Oct 31st, 2012 @ 2:06pm

    Since the cameras were put there during an illegal action i.e. trespass the two individuals would have been well within their rights to remove and/or destroy them, at least in my opinion. I have found game cameras on my land at various times which was put there with out permission and that is my normal response. Only once has anybody asked what happened to their camera and that was a game ranger who agreed he did not have permission to place the camera their prior it being put in place.

     

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    Grover (profile), Oct 31st, 2012 @ 2:33pm

    Fences

    What if the fence around a field was a 10-foot-tall, privacy fence? Obviously, such a fence would create the expectation of privacy. I'm not seeing where the 'field' in question was really a field, by definition. A field, by its very nature is an open area, generally surrounded by trees, brush, or fencing. How does one enter an open field and set up multiple cameras? Tripods? Duck blinds?

    I would think the next step for these fellows would be to put up a high voltage containment fence and their own surveillence cameras.

     

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      silverscarcat (profile), Oct 31st, 2012 @ 2:37pm

      Re: Fences

      "I would think the next step for these fellows would be to put up a high voltage containment fence and their own surveillence cameras."

      You forgot the part where there's high powered shotguns pointing at various areas with warnings on said fence "trespassers will be shot"

       

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    identicon
    Anonymous Coward, Oct 31st, 2012 @ 3:09pm

    The real question here is why the hell would your constitutional rights not apply in an open field!? Open field in Mexico, sure, but open field in the US?

    I have no sympathy for pot heads, but I have a deeply rooted love for the constitution. I hope that more judges and LEOs will in the future.

     

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      John Fenderson (profile), Oct 31st, 2012 @ 4:20pm

      Re:

      I think that the original idea is that if you are standing somewhere you are legally allowed to be (a public road, for example) and can see what's happening in a field, then the police can legally do so as well without violating anyone's rights.

      I agree with that, and if the cops had installed their cameras in a public area, I wouldn't have a legal problem with that either.

      Where the court goes wrong is when they say that trespassing to do it is fine and dandy.

       

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    kenichi tanaka, Oct 31st, 2012 @ 3:14pm

    It wouldn't do the police any good because if they are dumb enough to install surveilance cameras on my property and I discovered their cameras, I would tear them down, wave at them via the camera and destroy them with a sledgehammer.

     

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      Anonymous Coward, Nov 1st, 2012 @ 1:36am

      Re:

      This was my exact response when I read that. You put it in my property, you have no expectation of getting it back in one piece. Hey, I'll at least supply the baggy for what's left, though.

       

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    identicon
    Anonymous Coward, Nov 1st, 2012 @ 2:56am

    End the Patriot Act and the National Defense Authorization Act in one step. Vote Libertarian this election and send a clear message. WE THE PEOPLE will not be trespassed!

    Gary Johnson 2012

     

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    Ninja (profile), Nov 1st, 2012 @ 3:53am

    So wait a second, they need to install cameras to film a field of marijuana? I mean, can't you just look, identify that it's marijuana and arrest whoever is growing it?

    Wouldn't it be much easier and cheaper to just allow a light drug that's socially accepted? I personally don't use but contrary to "pot head" arguments I've seen, most people I know that use do so in a very sparse manner and for leisure only. What's the freaking difference between this, tobacco and alcohol? Sure there are the ones who abuse marijuana and end up being drooling vegetables but then again isn't it the same with alcohol? Shouldn't we treat addiction as a health issue rather than a crime?

     

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    Anonymous Coward, Nov 1st, 2012 @ 5:42am

    What were they growing - tomatoes?

     

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    KGWagner (profile), Nov 1st, 2012 @ 10:23am

    These are MY cameras now

    If I saw cameras on my fields that I didn't install, I'd take the little rascals down and sell 'em on eBay. I mean, they're probably low-light capable, high-resolution units with wifi capability. Gotta be worth more than a few bucks.

     

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    smartass, Nov 19th, 2012 @ 2:02pm

    Fences

    What about 15 foot privacy fences around your pot plants? If the cameras can't see the plants....

     

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      Joe, Nov 25th, 2012 @ 6:32pm

      Re: Fences

      1 word: sunlight

      Although in theory, you could have a fogged greenhouse with a (natural) dirt floor, heh. Also in theory, there's ways to detect the compounds they emit besides the obvious 'smell test'.

       

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    identicon
    Anonymous Coward with an AR, Jan 18th, 2013 @ 8:07am

    The real question is, can you legally shoot someone that trespasses on your open field?

     

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