Legal Or Illegal Traffic Stop?

[benz182]

My question involves a traffic ticket from the state of: Michigan

This traffic stop didn't involve me, but I did witness it. I was walking home and as I approached a t-section I seen a city police cruiser parked in the driveway of a house. This house wasn't for sale nor was it vacant, there was no garage or carport and there was no other vehicles in the driveway. Appears nobody was home!

A small car drove up to the t-section, the driver made a mistake of not coming to a complete stop and the cop seen it. The driver the car turned out to be a neighbor who lives a few houses down from me, the cop pulled her over down the street a couple houses from her driveway. I'm assuming she got a ticket as the cops in this city never let anyone off the hook!

Question being, is it legal or illegal for a police officer to monitor an intersection, etc. from the driveway of someone's home? Wouldn't that be trespassing? If it was illegal, would a judge toss the ticket out? Where can police officers hide? You see them hiding in the parking lots and driveways of churches, office buildings, grocery stores, etc. I've never seen one in the driveway of a home before.

[aardvarc]

It's entirely possible that the officer had some non-obvious reason to be at that location (doing house checks while owners are away is a commonly provided service) - but even if they didn't, it's not going to have any bearing on the ticket. It's not trespassing because the officer being at that location serves a legitimate law enforcement purpose: monitoring the intersection. It's not trespassing when they chase a bad guy through someone's back yard for the same reason.

[jk]

It's entirely possible that the officer had some non-obvious reason to be at that location (doing house checks while owners are away is a commonly provided service) - but even if they didn't, it's not going to have any bearing on the ticket. It's not trespassing because the officer being at that location serves a legitimate law enforcement purpose: monitoring the intersection. It's not trespassing when they chase a bad guy through someone's back yard for the same reason.

actually parking in a driveway to watch traffic IS trespassing unless they have permission from the owner, but, it will not change the fact the other driver failed to stop and was caught.

"serving a legitimate law enforcement purpose" does not override your rights to control your property but that is something the homeowner can take up with the police. It does not alter the situation with the traffic law violation.

[BOR]

Question being, is it legal or illegal for a police officer to monitor an intersection, etc. from the driveway of someone's home? Wouldn't that be trespassing? If it was illegal, would a judge toss the ticket out? Where can police officers hide? You see them hiding in the parking lots and driveways of churches, office buildings, grocery stores, etc. I've never seen one in the driveway of a home before.

Until the homeowner instructs the officer do NOT sit in my drive and radar cars, etc. the officer has basically implied permission to do it, IMO. Let's assume is it technically trespassing as JK points out, # 1. you will find that prosecutorial discretion will win out an NO charges will be filed, until such time the officer is told directly not to do it and then does again. 2. The witnessing and subsequent charging of a crime has no bearing on the lawful presence of an officer UNLESS evidence such as contraband is moved to be suppressed, etc.



Venues open to vehicular traffic may be another matter, however, even a Mall etc., has a right to tell the police do not enforce laws from my property which do not concern my property, although this is bad PR and serves no business purpose, MOST would welcome a police presence, for any reason.

[jk]

Until the homeowner instructs the officer do NOT sit in my drive and radar cars, etc. the officer has basically implied permission to do it, IMO.

sorry BOR, there is no implied permission for an officer to break the law and unless he is on that property with permission or a legally allowed justification, he is breaking the law. Cops don;t get a free ride just because they are cops.

Picture this; same justification but officer is hiding behind your house. Or, better yet, officer is hiding IN your house. Your property is your property and the officer has no right to trespass on your property.

If it is illegal for a non-police citizen to do it, it is generally illegal for the police to do it. There are some exceptions (failure to follow traffic laws in certain situations) but generally, they are held to the same laws as you or I.

that does not change the fact the person ticketed broke the law though.

as to the mall situation; that varies from state to state. Some states, traffic laws are just as enforcable on such property as on a street. Some states require the property owner to agree or request the traffic laws be enforced. It varies.

[BOR]

sorry BOR, there is no implied permission for an officer to break the law and unless he is on that property with permission or a legally allowed justification, he is breaking the law. Cops don;t get a free ride just because they are cops.

Let's look at the law itself to make a determination:

http://www.legislature.mi.gov/(S(wse...me=mcl-750-552

Which section would you say is being violated?? I don't see any!

Picture this; same justification but officer is hiding behind your house. Or, better yet, officer is hiding IN your house. Your property is your property and the officer has no right to trespass on your property.

Backyard curtilage is a world different from front yard by the public road curtilage to monitor speeders. If a private homeowners driveway is being used to check speeders, it would seem to indicate the homeowner is greatly being benefitted also, as they could get nailed pulling out, so the governmental interest is there, as said, unless the homeonwer has forbidden it.

If it is illegal for a non-police citizen to do it, it is generally illegal for the police to do it. There are some exceptions (failure to follow traffic laws in certain situations) but generally, they are held to the same laws as you or I.

Generally, yes, but when enforcing laws, there is certainly more discretion awarded the police than a neighborhood watch group.

Sometimes it is not always possible to situate a police vehicle on public property, such as a median/berm, and if it is a narrow one way street/alley, where it is darn near impossible to be totally on public property, how is an officer supposed to detect speeders??

I have never heard of a case such as this being tried for trespassing or even a takings clause case!!

[aardvarc]

I can't speak for other states, but here in Florida, the offense of trespass requires elements not present in this scenario.

Notice not to enter must be typically be given by signage, fencing, curtilage cultivation, etc. - so yeah, a driveway WOULD count. BUT, there is also the element of INTENT to commit an offense. Again, can't speak for other states, but Florida statutes are very clear on this (see Chapter 810). Otherwise you'd be expecting police to cite and/or arrest anyone who happened to innocently turn around using your driveway, the Jehovah's Witnesses who walk up your sidewalk to knock on your door (residential battery?), or the dog owner who stands there to let his dog pee on your mailbox post (criminal mischief to a mailbox - a federal offense?). Most state statutes specifically address lawful presence on property that is not posted or enclosed to allow not only law enforcement officers acting within the scope of their employment, but also other civil employees while acting within their scope, and private entities like utility workers, municipally contracted tree trimmers, surveyers, and a host of others. Overall, the missing element for all of these is intent, while the mitigation is lawful purpose.

Would you additionally suggest that the trespassing in the scenario should be upped to felony status, since a peace officer would by default be armed, while committing such offense? Oh, and likely in possession of burglary tools?

[aardvarc]

Good point BOR (and thanks for posting the statute link). Looks like Michigan law is pretty simple compared to ours - no violation for trespassing occurs until AFTER the owner or agent has said "no" (I'm assuming that "no" can come in a variety of ways - verbal, written, posted, etc.).

[jk]

I'll stick by this quote. It is still correct.

sorry BOR, there is no implied permission for an officer to break the law and unless he is on that property with permission or a legally allowed justification, he is breaking the law. Cops don;t get a free ride just because they are cops.

you were claiming that because he is an officer of the law, there were special exemptions. There isn't.

Backyard curtilage is a world different from front yard by the public road curtilage to monitor speeders. If a private homeowners driveway is being used to check speeders, it would seem to indicate the homeowner is greatly being benefitted also, as they could get nailed pulling out, so the governmental interest is there, as said, unless the homeonwer has forbidden it.

BS. the officer would not be restricted from the backyard anymore than he would to the front yard. Now it is time for you to read the laws you quoted. Show me the law that treats the front yard differently than the back yard and don;t go grabbing the "fenced" section. That is changing the situation.

Generally, yes, but when enforcing laws, there is certainly more discretion awarded the police than a neighborhood watch group.

what? There are laws in place and the police are not exempt from those laws. Yes, there are situations that would allow the police to enter your property but unless one of those situations is at hand, they are just as restricted as an average citizen. Actually, there are more restriction in some situations.

Sometimes it is not always possible to situate a police vehicle on public property, such as a median/berm, and if it is a narrow one way street/alley, where it is darn near impossible to be totally on public property, how is an officer supposed to detect speeders??

that is their problem. I don;t care if they want to set on my property to clock folks as it being the only place they can set and do so, if I tell them they cannot do it, then they cannot do it. There is no ambiguity in the trespass laws to allow it "if they need to" unless there is a court order to demand it.

aardvark posts:

Most state statutes specifically address lawful presence on property that is not posted or enclosed to allow not only law enforcement officers acting within the scope of their employment, but also other civil employees while acting within their scope, and private entities like utility workers, municipally contracted tree trimmers, surveyers, and a host of others

you can refuse entrance to anybody, with few exceptions. Utility workers do not enjoy special rights. If you refuse them entrance, they can (and will) simply turn off the utility. They do not have the right to enter your property once they have been told to not enter. Municipaly contracted utility workers do not have the right to enter your property either. They are allowed to maintain an easement but that is where their rights stop.

Surveryors are about the only group that has the legal right to enter your property but that is still only when it is neccessary to do their work (obviously)

I have never heard of a case such as this being tried for trespassing or even a takings clause case!!

neither have I but I have seen an officer told to get the hell off private property and unless they had legal justification to remain, they were, at that monent, trespassing and subject to charges. They do tend to leave.

the officer has basically implied permission to do it, IMO.

No, there is not an implied permission, it is simply the law requires an actual restriction. The lack of that restriction does not imply permission as permission is not needed. It simply fails to place the restriction.

If the homeowner is aware of the stake out and failed to take any action, then, that is implied permission. Up until that point, there is neither permission or restriction and as such, the law allows the entry.

[aaron]

There's a difference between civil trespass and criminal trespass. The criminal statute is not the beginning and end of the story.

In relation to this discussion, the question of whether or not a trespass occurred is irrelevant to the question of whether or not the citation is valid.