THE PEOPLE &C., RESPONDENT, v. GUY F. SCOTT, APPELLANT. / THE PEOPLE &C.,
RESPONDENT, v. GEORGE KETA, APPELLANT.
79 N.Y.2d 474, 593 N.E.2d 1328, 583 N.Y.S.2d 920 (1992).
April 2, 1992
3 No. 6
2 No. 27
Decided April 2, 1992
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
No. 6:
Terence L. Kindlon, for Appellant.
James E. Downey, for Respondent.
No. 27:
Stephen R. Mahler, for Appellant.
Barbara D. Underwood, for Respondent.
People v Scott (No. 6)
HANCOCK, J.:
In Oliver v United States (466 US 170) the Supreme Court fully
reaffirmed the doctrine articulated in Hester v United States (265 US
57): that in areas outside the curtilage, an owner of "open fields"
enjoys no Fourth Amendment protection. This is so, the Oliver majority
held, even for secluded lands and notwithstanding efforts of the owner
to exclude the public by erecting fences or posting "No Trespassing"
signs. In this appeal by defendant from a conviction for illegally
growing marihuana on his land, we address the question expressly left
open in People v Reynolds (71 NY2d 552): whether the Supreme Court's
categorical ruling in Oliver should be adopted as the law of this
state under article I, § l2 of the New York State Constitution. For
reasons which follow, we hold that the Oliver ruling does not
adequately protect fundamental constitutional rights (see, People v
P.J. Video, 68 NY2d 296, 303-306) and we decline to adopt it. There
should, therefore, be a reversal.
I
Defendant was convicted on his guilty plea in County Court of criminal
SNIPPETS:
GUY F. SCOTT, APPELLANT.
/ THE PEOPLE &C., RESPONDENT, v. GEORGE KETA, APPELLANT.
In Oliver v United States the Supreme Court fully reaffirmed the doctrine articulated in
In this appeal by defendant from a conviction for illegally growing marihuana on his land, we
For reasons which follow, we hold that the Oliver ruling does not adequately protect
The Appellate Division unanimously affirmed in a memorandum agreeing with County Court's
ticle I, section 12 of the NY Constitution" (People v Scott, 169 AD2d 1023,
In denying the motion to suppress, the hearing court relied on the rationale of Oliver v
The Appellate Division, in its affirmance, concluded that the "open fields doctrine upheld in
The Appellate Division reasoned that inasmuch as the "marijuana * * * was clearly grown in an
at 559, 562-563 (Hancock, Jr., J, dissenting)).
In Oliver, the Court expressly reconfirmed its original "open fields" ruling in Hester v
Thus, under the combined holdings of Hester and Olmstead, a warrantless search of land was
As we have explained, we find no basis for concluding that a police inspection of open fields
Our Legislature has recognized the owner's right to prohibit entry on land in the posting
The test, as the Court now frames it, is not to be found in any settled method of analysis
The Court seems to not comprehend what we are objecting to, which is that there must be some
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