Grimm – Let Your Hair Down

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.”  Sandoval200 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.

III. Conclusion

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.)

20 responses to “Grimm – Let Your Hair Down

  1. The mention of Grimm reminds me, has this site done any of Zenescope’s Grimm Fairy Tales.

    As for this case, what claiming that they had entered to arrest someone who was breaking the law by having the treehouse there and just happened to find this other evidence in the ensuing search?

  2. Okay, so suppose the police wanted to search someone’s house to find evidence against someone else and they didn’t let them in. Is this obstruction of justice or do they still need a warrant (in which case I would assume it would become obstruction of justice once the police had a valid warrant).


    • If you give police permission to search your house, can they then use anything they find as evidence? Or could the homeowner say “you can search my house for evidence against Joe, but you don’t have permission to use any evidence you find against me”?
      If the homeowner cannot put such a limitation on a search, then “we’re only looking for evidence against someone else” seems kind of a moot point.

      • “If you give police permission to search your house, can they then use anything they find as evidence”

        Anything they find legitimately, yes. The most likely source of unexpected evidence is the plain view doctrine: anything they find in plain view is fair game, whether it was related to the original search or not. And of course, once they’ve found any evidence of a crime it’s pretty easy to get a warrant to search the place from top to bottom.

        “An example of the applicability of the “plain view” doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character. … the “plain view” doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.” Coolidge v. New Hampshire, 403 U.S. 443, 465-66 (1971).

    • While there was a common law right to resist an unlawful arrest, in most—if not all—jurisdictions these days, individuals aren’t privileged to resist an arrest or search by the police, even an unlawful one. See, e.g., U.S. v. Ferrone, 438 F.2d 381 (3d Cir. 1971) (“we hold that a person does not have a right to forcibly resist the execution of a search warrant by a peace officer or government agent, even though that warrant may subsequently be held to be invalid.”); State v. Wiegmann, 350 Md. 585 (1998) (citing cases in 14 states and statutes in 27 other states abolishing the common law right to resist).

      What someone can do is immediately, clearly, repeatedly, and in no uncertain terms announce that they do not consent to the search (and never do, say, or imply anything to the contrary). This at least gives something to hang a motion to quash on, if the search is indeed invalid. The remedy is invoking the exclusionary rule after the fact, not resisting the search. This may seem burdensome, but the courts (and legislatures) have made the determination that it is more dangerous to allow people to resist, since that tends to lead to violent escalation.

  3. I’m very interested in answers to the above. ^_^ No pressing personal reasons, but it’s always good to know where the windy side of the law lies. As that one famous lecture on YouTube showed, talking to the police can be a very bad idea, even when you haven’t committed a crime.

  4. It’s been a while since I saw the episode, but when Nick and Monroe found the treehouse, didn’t they already suspect that the girl they were looking for was the missing child from Nick’s partner’s old case? Are the police allowed to enter a property without a warrant/invitation if they have probable cause to believe a missing child is on the premises? And if so, then wouldn’t anything they discovered in plain sight be admissible?

    • Probable cause is a basis for getting a warrant, not for performing a warrantless search. They were looking for a missing girl, true, but the house was hers. What’s more, it was clear that she did not want to be found, at least at that point. And although she was a minor, minors still have privacy interests that are protected by the Fourth Amendment.

      The emergency aid exception could have provided an out for entering the treehouse. After all, the girl was wounded and in need of medical assistance. But as best I can recall they didn’t discover that she was wounded until after they entered. The writers should have had Nick or Eddie discover a blood trail or other evidence that she was hurt.

    • They did discover a bloodstain at the original crime scene so they had reason to think the attacker was injured.

      • Well dang. I missed that detail. In that case, combined with the hair and Eddie’s scenting, they probably had adequate justification for searching the treehouse without a warrant.

  5. So, the search of the treehouse was illegal, but if they used evidence found there against the father, the father could not have it excluded, since his rights were not infringed. However, could the daughter, who is not the subject of the prosecution, but who WAS the one whose rights were infringed, object to the evidence obtained being used in trial?

    • In short, no. She wouldn’t have standing to object, since she wouldn’t be the one harmed by its introduction as evidence. Theoretically her remedy would be a § 1983 suit against Nick.

      Also, the abduction suspect is a former neighbor, I think; the girl’s father is deceased.

  6. If police are searching your house for some specific item, can they ask you to open drawers (or even safes) in order to “look for” that item and then claim “plain view” on items that are inside once it is open?
    And if they would need a specific warrant to, say, open a safe, could they use your reluctance to open it as basis to get the warrant?

    • I’m not sure what you mean. If the police have a search warrant to look for a particular thing in a particular area, they can look anywhere in that area that it could possibly be (e.g. if they’re looking for a stolen car then they can’t open a tiny jewelry box and look inside). See, e.g., United States v. Peterson, 867 F.2d 1110 (8th Cir.1989). They can move objects, open containers, and even dismantle objects as long as they don’t do permanent damage (i.e. they can’t just take a wrecking bar to the place), unless there is no other way to perform the search. See, e.g., United States v. Becker, 929 F.2d 442 (9th Cir.1991) (using a jackhammer to remove portions of a newly-poured concrete slab where police had “ample reason to believe the concrete slab was being utilized to hide the very evidence they were legally on the premises to find”).

      If the warrant is limited to a particular area (e.g. only the yard of a house rather than the inside), then of course they can’t search outside that area, although anything they see in plain view while walking to that area is fair game. See, e.g., U.S. v. King, 227 F.3d 732 (6th Cir. 2000).

      Requiring someone to open a combination safe is tricky. If the act of producing the contents of the safe would provide the government with information regarding the existence, custody, or authenticity of the contents, then the 5th Amendment applies. But if the government already knows what’s in the safe, who owns it, and that it’s authentic, then it doesn’t. See U.S. v. Hubbell, 530 U.S. 27 (2000).

  7. There’s one issue unaddressed. The “treehouse” was not of course built by Holly. It was built by the neighbour. I suspect having abandoned it to Holly for the last 10 or years would be enough to give up his expectation of privacy but originally it was his special funtime place.

    • Oh? I missed that detail as well. I thought Holly built it. Yeah, he would have no expectation of privacy in it any more than someone who once lived in a certain house would 10 years after they moved.

    • Could Holly actually now claim a title to the treehouse on the doctrine of adverse possession?

      • Probably not. Adverse possession in Oregon requires “actual, open, notorious, exclusive, hostile and continuous possession of the property for a period of 10 years.” Holly has the actual, exclusive, hostile, and continuous parts down, and possibly the 10 years as well. The problem is the “open” and “notorious” parts. Holly has kept her use of the treehouse a secret, as far as the state government is concerned. Thus, she can’t claim adverse possession because the true owner never had notice of the adverse claim.

        There are other potential problems with such a claim. For example, claiming adverse possession against state land held in trust for the public is tricky to say the least. “The title to the soil underlying the water, that is to the bed of the river itself, is vested in the state and is held by the state in its sovereign capacity as trustee for the public and the adverse possession of no person however long continued can devest it of its title.” Corvallis Sand & Gravel Co. v. State Land Board, 439 P. 2d 575 (1968) (quoting Gatt v. Hurlburt, 131 Or. 554 (1930)). I’m not sure if state park land qualifies as land held in trust for the public the same way the bed of a navigable river does, but I suspect it does.

  8. “…(e.g. if they’re looking for a stolen car then they can’t open a tiny jewelry box and look inside).”

    Aha! A handy loophole for any supervillain with a miniaturization ray!

    • Brilliant! Although once it became known that the supervillain had such a ray, the police would be justified in going over the entire place with a fine-tooth comb (perhaps literally!).

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