The past couple of episodes of Grimm have not been especially fertile grounds for legal issues, but the most recent one did raise a couple of interesting questions related to warrantless searches, which seems to be a running theme in the series. Spoilers below.
I. Warrantless Searches and Temporary or Makeshift Housing
In the episode, Nick and Eddie search for a missing girl, who has apparently been living alone in the woods for several years. In an obvious reference to Rapunzel, they come across a treehouse high in a tree and decide to search it….without a warrant. This raises the question: does the Fourth Amendment apply to something like a treehouse in a state forest? Could the girl, Holly, move to exclude any evidence found in her treehouse in violation of the Fourth Amendment? I think the answer is yes, although it may be moot because Holly likely hasn’t committed any crimes.
Although Holly did kill a man earlier in the episode (and indeed she does so again, later in the episode), both killings were done in defense of others. The subsequent theft of the first victim’s sleeping bag and other possessions would be harder to justify, although she would probably have defenses of necessity and lack of capacity, since she had been living alone in the woods since she was seven. However, there was also a piece of evidence in the treehouse pointing to the man who left her in the woods, and more on that later.
Anyway, back to the Fourth Amendment. As it turns out, the Ninth Circuit (which includes Oregon, where the show takes place) has held that “We have already established that a person can have an objectively reasonable expectation of privacy in a tent on private property. This reasonable expectation is not destroyed when a person’s tent is pitched instead on a public campground where one is legally permitted to camp. The Fourth Amendment protects people, not places.” U.S. v. Gooch, 6 F.3d 673, 677 (9th Cir. 1993).
But wait: isn’t building a treehouse in a state forest illegal? Or doesn’t she at least need a permit to camp there? This is true: camping overnight in Tillamook Forest requires a fee of at least $5 / night (Holly presumably counts as a “walk-in”), building structures without permission is prohibited, and camping for more than 60 days in a year is also prohibited. Surely she doesn’t have a Fourth Amendment privacy right if her treehouse if she doesn’t have the right to be there in the first place, right?
Maybe not. In U.S. v. Sandoval, the 9th Circuit again ruled that the expectation of privacy in a tent is not destroyed by committing a crime, including unauthorized camping on government land: “[W]e do not believe the reasonableness of Sandoval’s expectation of privacy turns on whether he had permission to camp on public land.” Sandoval, 200 F.3d 659, 661 (9th Cir. 2000).
Further evidence that Holly had an expectation of privacy comes from the facts of the Sandoval case: “In this case, several factors indicate that Sandoval had a subjective expectation of privacy. First, the tent was located in an area that was heavily covered by vegetation and virtually impenetrable. Second, the makeshift tent was closed on all four sides … ” Id. at 660. Holly’s treehouse was similarly located in a remote area, closed in on all sides, and difficult to access, being about 25 feet up a tree.
So, even though Holly likely wouldn’t need to exclude any evidence, she probably could have.
II. What About the Other Guy?
The person accused of leaving Holly in the woods isn’t so lucky. A camp stove belonging to him was found in Holly’s treehouse, and he’d probably very much like to exclude that evidence at trial. Unfortunately for him, he can’t, even if the warrantless search of Holly treehouse was a violation of Holly’s Fourth Amendment rights.
The exclusionary rule can only be invoked by the person whose rights were violated (i.e. Holly), even if the express purpose of the violation was to illegally obtain evidence to use against another person. See Rakas v. Illinois, 439 U.S. 128 (1978) (no “target” standing for invoking the exclusionary rule); United States v. Payner, 447 U.S. 727 (1980) (no target standing even when the IRS deliberately abused the rule knowing that the target would be unable to object to the Fourth Amendment violation). Since the man who allegedly abandoned Holly, Addison, wasn’t even the target of the investigation, he absolutely wouldn’t have standing to object to the use of the camp stove as evidence against him.
Grimm continues to be a pretty good series, and we’ll keep covering it as we find interesting legal issues in the stories.
(As a final sidenote: it was technically Eddie Munroe, who is not a cop, who first peeked into the treehouse and discovered Holly, but at this point he works so closely with Nick, who was at the scene, that he would probably be considered a state actor in this case, which would trigger the Fourth Amendment.)