In what circumstances will police officers be permitted to enter a private marijuana garden?

California, United States of America


The following excerpt is from Phelan v. Superior Court of Mariposa County, 151 Cal.Rptr. 599, 88 Cal.App.3d 189 (Cal. App. 1979):

In the present case, petitioners clearly entertained a subjective expectation of privacy in the cultivation of their marijuana garden. Furthermore, under all of the circumstances we conclude that their expectation of privacy was objectively reasonable. The garden was located in an isolated narrow ravine on petitioners' foothill property which they apparently used as a residence, at least part of the time. The garden was protected by trees and a four-foot wire fence covered with brush and branches from oak trees. The officers acknowledged that the person who maintained the garden had intended to conceal it from view. There were no footpaths, roads or other indicia of common or public ownership or use in the immediate area where the officers located themselves (cf. Dean v. Superior Court, supra, 35 Cal.App.3d 112, 110 Cal.Rptr. 585). Assuming it did not have a locked gate at its entrance, the road onto petitioners' property would imply an invitation to visit the premises, but it cannot be deemed to have constituted an open invitation to police officers to explore the mountainous, rocky terrain not immediately adjacent to the road.

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