The Utah Court of Appeals issued an opinion this week upholding the convictions of Jeff Lamb for three counts of theft of lost property, third degree felonies under Utah Code section 76-6-407. State v. Lamb, 2013 UT App 5, Case No. 20111071-CA.
In 2010, Utah Department of Agriculture Theft Inspectors received a tip of possible cattle rustling in Ephraim, Utah and went to a nearby property to investigate. Using binoculars, the inspectors looked at the cattle on Mr. Lamb’s property and found that one of the calves did not have the Lamb branding marks. Based on this observation, the inspectors entered the first and found two other cows with different ownership markings.
Mr. Lamb challenged his convictions, arguing that the three charges should have been tried in separate trials because the charges involved different owners, different kinds of cattle, and different days when Mr. Lamb obtained them. The trial court disagreed and found that the thefts were part of a common plan or scheme because they were all obtained when Mr. Lamb was driving his herd was between ranges and they were all kept in possession for a long time “without taking reasonable measures to return them.” The court of appeals agreed with the trial court.
Mr. Lamb also argued that the inspectors viewing of his field and entry onto field violated his right against unreasonable search and seizure under the Fourth Amendment of the United States Constitution. The court of appeals disagreed with Mr. Lamb and cited the United States Supreme Court cases that have found that “open fields” are not protected by the Fourth Amendment. According to the court, “An ‘open field’ need not actually even be ‘open’ or a ‘field.’ So long as it is not part of the curtilage of a home, an ‘open field’ can be a secluded field surrounded by woods, fences, chicken wire, or embankments, and entirely out of public view or access; it can even be a cave, a still, a shed, a small concrete building, a chicken coop, a hog pen, a good pen, or an open and shared parking area adjacent to or behind an apartment building.” Lamb, 2013 UT App 5, ¶ 16.
Even though you may own a piece of property, it does not mean that there is absolute right to keep the police from entering onto it. Courts looks to whether the owner has a “reasonable expectation of privacy” in the property when considering search challenge.
If you are under investigation or have been arrested, call an experienced criminal defense attorney to help you learn about and protect your rights.