Utah Free Press

North Logan Employee Trespass Complaint May Fail.

By Richard Okelberry (Note: This essay was originally published at KVNU’s, For the People Blog.)  

 The other day CacheValleyDaily.com ran an article titled, “Former NoLo Council candidate files trespassing complaint against city” by Amanda Pierce.  The article explained how a man, L. Alan Collins who ran for City council this year in North Logan had filed trespassing charges with police against a city employee who he found on his property taking measurements for the city. Coincidentally, today as I was researching the powers of municipalities in Utah Law for an unrelated topic and came across this Utah State Statute; 10-9a-303 titled “Entrance upon land.”  It states: 

 “The municipality may enter upon any land at reasonable times to make examinations and surveys pertinent to the:
       (1)  preparation of its general plan; or
       (2)  preparation or enforcement of its land use ordinances.” 

 Considering all the discussion over the past many years in Logan regarding property rights and park strip restoration, I thought it might be worth including this incident in a discussion about perceived and real property rights.  

When I first read this story, my initial reaction was to side with Mr. Collins.  After all, don’t we all have a constitutional protection against unreasonable search and seizure under the Fourth Amendment to the U.S. Constitution.  

 This situation begs several legal questions:  Does every arm of the government need to request a search warrant before entering private property without permission, or is that a restriction only levied against the law enforcement arm of the government.  Imagine for a moment that while making a survey of a piece of private property under this state statute that the North Logan employee had come across a small planting of marijuana.  Would the discovery be admissible in court without a warrant?  

 If it is admissible, then what would stop a government authority from using such non-law enforcement employees to essentially act as spies for the law enforcement arms of government as a loop whole around the requirement for a search warrant when there is not enough evidence for a judge to grant one?    

 In at least in one case, State of Idaho vs. Bran L. Brunting, 2006 Court of Appeals of the State of Idaho, the court ruled that evidence of a meth lab was not admissible, mainly because the attending officer instructed the firefighter to open a cooler where the evidence of the crime was discovered.  The court thus vacated the conviction.Still, this does not dismiss the question of what we as a society consider our right to privacy.  Where do we draw the line between the public good, the need of government to act on behalf of the whole and the rights of individuals to feel free from government intrusion in their lives and property? 

While I certainly am no attorney, as I regularly proclaim, and while I have not researched other rulings regarding the application of this statute, read plainly it would appear that Mr. Collins had no right under state statute to order the North Logan City employee to vacate his property and the city had every right, granted by state authority to enter the property and conduct the survey without the permission of the owner.  As such, I imagine the complaint of trespass will be dismissed under this statute.