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Can the DEA Hide a Surveillance Camera on Your Land?
Stop the Drug War.com ^ | January 16, 2013 | Clarence Walker

Posted on 01/22/2013 2:25:19 PM PST by Altariel

Acting on a tip, DEA agents went on rural property without a warrant, set up surveillance cameras, and used the evidence obtained to get a search warrant and convict the property owners for growing marijuana. And a US district court judge said that was okay. Is it?

special to Drug War Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com [7]

A case that began with reports of suspicious activity in northeast Wisconsin forest land last spring may be headed for the US Supreme Court. That's because a US district court judge ruled in the case last fall that it was okay for the DEA to enter the rural property without a warrant and install surveillance cameras that were used to help convict five members of a family on charges they were growing marijuana.

http://stopthedrugwar.org/files/dea-camera.jpg
surveillance camera (shutterstock.com)

The ruling last October came in a motion to suppress the evidence [8] obtained by the warrantless video cameras. After that ruling, the defendants, five members of the Magana family, pleaded guilty to possession with intent to distribute marijuana and now face up to life in prison and up to $10 million in fines. But as part of the plea deal, they retained their right to appeal the ruling.

And their attorneys say they are prepared to take the case all the way to the US Supreme Court.

In their motion, they had asked the court to suppress evidence because of the property's locked gate and "No Trespassing" sign. Since the properties were heavily wooded and posted with signs, the owners were entitled to an expectation of privacy, the attorneys say.

"After sentencing, the first round of appeals will go to the Seventh Circuit and if there's no favorable ruling there, the cases will be filed into the US Supreme Court," Wisconsin attorney Stephen Richards told the Chronicle last week.

"That one's action could be recorded on their own property even if the property is not within the curtilage is contrary to society's concept of privacy," said Green Bay attorney Breet Reetz, who represents Marco Magana.

Curtilage is a term of legal art referring to the area of a property immediately surrounding a house or dwelling. Past Supreme Court jurisprudence, particularly US v. Oliver [9], had held under the "open fields" doctrine that areas outside the curtilage are not subject to the same Fourth Amendment protection as a home itself. "An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home…," the court held in Oliver. (Perhaps not coincidentally, Oliver was another marijuana cultivation case, in which Kentucky deputies walked a mile onto the property before spotting a marijuana field. Their search was upheld.)

It all began in rural Marinette County last May, when a fishermen reported to local authorities that he had been run off the land by two men who told him "fishing is closed" and that he had observed trees cut down and power lines running across the property. Authorities investigated and found the property and two more adjacent properties were owned by members of the Magana family, which had purchased them months earlier.

Authorities left it at that until the following month, when a logger reported that when he had gone to check on a timber stand at one of the properties, he stumbled over a marijuana cultivation operation with more than 30 plants in a 50' x 50' clearing. The DEA then was called in and entered the Magana's properties without a warrant. Agents installed video cameras that eventually captured incriminating evidence of vehicles traveling in and out of the properties.

It wasn't until the DEA observed some of the men handling what believed to be marijuana did they go and request a warrant. A warrant was signed and the agents, accompanied by several local sheriff officers, executed the warrant and arrested the men at separate addresses near Green Bay.

The bust was big news in Marinette County.

"You've got thousands of plants, and as healthy as they look, this is a big operation," Sheriff Jerry Suave told local reporters at the time. The grow is probably "the largest I've seen," he added.

Before trial, set for the fall, counsel for the Maganas filed a motion to suppress the evidence [8], informing the court that videos from the surveillance camera showed dates that indicated that the camera had been running for 79 consecutive hours before DEA agent Steven Curran obtained a search warrant for the property.

"It is undisputed that the government trespassed without a warrant upon private property with visible 'No Trespassing' signs" posted," Reetz wrote in the motion, noting that the camera had operated from July 12 to July 15, but the warrant wasn't issued until July 17. Nor were there any "exigent circumstances" that would have allowed officers to enter the property without a warrant.

Federal prosecutors were ready with a response [10].

"Officers entering an 'open field' is not an area enumerated as protected under the Fourth Amendment," countered Assistant US Attorney for Eastern Wisconsin James Santelle. "'Open fields,' woods, and private lands are not 'persons, houses, papers, and effects' protected under the Constitution."

That was good enough for Eastern Wisconsin US District Court Chief Judge William Griesbach, who dismissed the defense motion and ruled that it was legal for the DEA to go onto private property without a warrant to install multiple covert digital cameras, and to use the evidence they obtain that way to obtains warrants and in court. Citing US v. Oliver, Griesbach held that the rural properties were curtilage and not protected by the Fourth Amendment.

But the Maganas' attorneys and other legal experts argue that even though "open fields" are not considered curtilage, if "No Trespassing" or "Private Property" signs are posted on the land, the property owner should still be entitled to an expectation of privacy under the law. And they are willing to take their argument to the highest court in the land.

"We have become a nation of men and not a nation of laws, which, is what our founding fathers didn't want us to become," Reetz said.

After formal sentencing, the case heads for the US 7th Circuit Court of Appeals. If Reetz and Richards don't prevail there, it is on to the Supreme Court. If the court were to take up the case, it would once again have the opportunity to try to untangle the dilemmas that result when the Fourth Amendment runs up against new technologies, for better or worse.

Source URL: http://stopthedrugwar.org/chronicle/2013/jan/16/can_dea_hide_surveillance_camera



TOPICS: Miscellaneous
KEYWORDS: camera; cannabis; dea; donutwatch; drugs; drugwar; marijuana; trespassing; warondrugs; wod; wodlist; wosd

1 posted on 01/22/2013 2:25:28 PM PST by Altariel
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To: Altariel

bttt


2 posted on 01/22/2013 2:30:58 PM PST by TEXOKIE (We must surrender only to our Holy God and never to the evil that has befallen us.)
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To: Altariel

No, they don’t have the right, but they have the full power of federal law enforcement behind them, so they can do what they want.


3 posted on 01/22/2013 2:31:10 PM PST by I want the USA back
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To: Altariel
It's called government of the people, not for the people anymore.
4 posted on 01/22/2013 2:33:41 PM PST by jeffc (The U.S. media are our enemy)
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To: Altariel

Why wouldn’t they need a warrant to come on private property and put the camera up in the first place?


5 posted on 01/22/2013 2:33:54 PM PST by Husker24
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To: Altariel

The better question is...can you shoot it?

I think so.


6 posted on 01/22/2013 2:34:58 PM PST by x1stcav (Man up! We're all going to have to become Samuel Whittemores.)
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To: Altariel

Sending in the drones too expensive or risky?

dope or no dope, Nice to know your gubamint is keeping a close eye on ya, huh?

this is a nation lost to a rudderless agenda that keeps bashing the ship of state on the rocks of time and ‘justice’ and then pretending no harm or foul has occurred.


7 posted on 01/22/2013 2:35:03 PM PST by NormsRevenge (Semper Fi)
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To: I want the USA back; All
No, they don’t have the right, but they have the full power of federal law enforcement behind them, so they can do what they want.

Will you please tell me which of the specific powers delegated by the Founding States to Congress in Section 8 of Article I gave Congress the power to establish the DEA in the first place?

8 posted on 01/22/2013 2:39:26 PM PST by Amendment10
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To: Altariel

George W. Bush 2002 appointee

http://www.fjc.gov/servlet/nGetInfo?jid=2930&cid=999&ctype=na&instate=na

Biographical Directory of Federal Judges
Griesbach, William C.

Born 1954 in Milwaukee, WI

Federal Judicial Service:
Judge, U.S. District Court, Eastern District of Wisconsin
Nominated by George W. Bush on January 23, 2002, to a new seat authorized by 114 Stat. 2762. Confirmed by the Senate on April 25, 2002, and received commission on May 1, 2002. Served as chief judge, 2012-present.

Education:
Marquette University, B.A., 1976
Marquette University Law School, J.D., 1979

Professional Career:
Law clerk, Hon. Bruce Beilfuss, Wisconsin Supreme Court, 1979-1980
Staff attorney, U.S. Court of Appeals for the Seventh Circuit, 1980-1982
Private practice, Wisconsin, 1982-1987
Assistant district attorney, Brown County, Wisconsin, 1987-1995
Judge, Wisconsin Circuit Court, Brown County, 1995-2002


9 posted on 01/22/2013 2:39:58 PM PST by NormsRevenge (Semper Fi)
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To: Altariel

If conservatism-at-large had any concept of what kind of surveillance state monster their support for the War on Drugs will later unleash upon them, the plug would get pulled tomorrow. A few people ODing in alleyways would be vastly preferable to what’s coming next.


10 posted on 01/22/2013 2:45:56 PM PST by Steel Wolf ("Few men desire liberty; most men wish only for a just master." - Gaius Sallustius Crispus)
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To: Altariel

Can the DEA Hide a Surveillance Camera on Your Land?>>>>>>>>>>>>

NO. They have to have a court order absent written consent by the owner.


11 posted on 01/22/2013 2:46:00 PM PST by Candor7 (Obama fascism article:(http://www.americanthinker.com/2009/05/barack_obama_the_quintessentia_1.html))
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To: x1stcav

Agreed. Anything I find on my rural property I’ll do whatever I want with it.


12 posted on 01/22/2013 2:48:54 PM PST by Teotwawki (For a person to get a thing without paying for it, another must pay for it without getting it.)
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To: Altariel

All they needed was a warrant from a federal judge, which isn’t hard to get. They couldn’t be bothered, I guess.


13 posted on 01/22/2013 2:54:46 PM PST by Cicero (Marcus Tullius)
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To: Altariel
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

Doesn't say anything about entire acreages.

Be interesting to see how SCOTUS rules.

14 posted on 01/22/2013 2:56:28 PM PST by Sherman Logan
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To: Altariel

“Curtilage is a term of legal art referring to the area of a property immediately surrounding a house or dwelling. Past Supreme Court jurisprudence, particularly US v. Oliver [9], had held under the “open fields” doctrine that areas outside the curtilage are not subject to the same Fourth Amendment protection as a home itself. “An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home…,” the court held in Oliver. “

I’m not a lawyer but I would think this would only apply to something they could see from adjoining public property or from a neighbor who permits them access. To be able to come on your private property without your permission is wrong any way you look at it.


15 posted on 01/22/2013 2:59:21 PM PST by Lurkina.n.Learnin (Superciliousness is the essence of Obama)
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To: NormsRevenge

One of the judges Ted Kennedy DIDN’T bother to block, I see.


16 posted on 01/22/2013 2:59:34 PM PST by a fool in paradise (America 2013 - STUCK ON STUPID)
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To: Altariel

Does the No Trespassing posting close the “open fields”?

I’d say yes, but who knows what the Nine Robed Lawyers will do.


17 posted on 01/22/2013 3:03:40 PM PST by HiTech RedNeck (How long before all this "fairness" kills everybody, even the poor it was supposed to help???)
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To: Altariel

And people wonder why I want to decriminalize all drugs.


18 posted on 01/22/2013 3:05:38 PM PST by Blood of Tyrants (There is no requirement to show need in order to exercise your rights.)
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To: Sherman Logan

Well, “effects” could mean a lot of stuff.


19 posted on 01/22/2013 3:06:06 PM PST by HiTech RedNeck (How long before all this "fairness" kills everybody, even the poor it was supposed to help???)
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To: Sherman Logan

Doesn’t say anything about entire acreages.


I like to test these sorts of things using absurd examples.

Imagine your house is on one of those postage stamp lots and you come home from work one day to find a video camera attached to a tree in your tiny back yard pointed down at your garden to see what you are growing.

Does that sound legit?

That’s what happened here. The yard was just bigger. And I don’t believe the constitution has any limit on the size of your property.


20 posted on 01/22/2013 3:13:53 PM PST by cuban leaf (Were doomed! Details at eleven.)
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To: Altariel
Since they had witnesses who had seen the plants, why didn't they get the warrant before the set up the cameras?

For me, without a warrant, whatever they learned from the cameras is inadmissible. There is no difference between a covert camera and a wire-tap.

I don't like druggies and I don't like drug dealers. But private property means private property. You have no right to surveil a private citizen without probable cause and if its on his property, a warrant.

21 posted on 01/22/2013 3:14:08 PM PST by marron
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To: Altariel

“Officers entering an ‘open field’ is not an area enumerated as protected under the Fourth Amendment,”

And if this is true, then why the cameras, why not just wander throught their fields openly, searching at will as they claim they have the right to do?


22 posted on 01/22/2013 3:19:07 PM PST by DesertRhino (I was standing with a rifle, waiting for soviet paratroopers, but communists just ran for office.)
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To: Altariel

Jury nullification isn’t just for the left. We need to absolutely refuse to convict on this stuff when the government does these kinds of things.

It’s the only way to stop them. Jury nullification. You don’t have to give a reason, just refuse to vote guilty.


23 posted on 01/22/2013 3:24:50 PM PST by DesertRhino (I was standing with a rifle, waiting for soviet paratroopers, but communists just ran for office.)
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To: HiTech RedNeck
It does to you but not to the po-lice. It is not a get out of jail card.
24 posted on 01/22/2013 3:26:09 PM PST by Domangart
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To: Domangart

Many things have to happen between there and the jail, with the hopeful instruction of the constitution. The popo oughtn’t go in a validly private posted area for just any old thing, with no warrant (there wasn’t one here) and no exigent circumstance. This may be a situation where the libertarian Thomas may get Roberts and Kennedy to go along with the wise Latina and some other liberal for an ideologically mixed narrow split.


25 posted on 01/22/2013 3:31:38 PM PST by HiTech RedNeck (How long before all this "fairness" kills everybody, even the poor it was supposed to help???)
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To: DesertRhino
“Officers entering an ‘open field’ is not an area enumerated as protected under the Fourth Amendment,”

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I see your 4th amendment and raise you my 9th.

Glad to see that somebody is planning to argue this all the way up to SCOTUS. It's time to put a stop to the surveillance state.

26 posted on 01/22/2013 3:39:13 PM PST by Valpal1
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To: HiTech RedNeck
Does the No Trespassing posting close the “open fields”? I’d say yes, but who knows what the Nine Robed Lawyers will do.

The "open fields" exception to the 4th Amendment is unfortunately very old-- it goes back at least as far as Hester v. United States in 1924, which held that the 4th Amendment didn't require a search warrant for a search of open land, even if that search involved a trespass.

27 posted on 01/22/2013 3:40:52 PM PST by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: cuban leaf

I’m not saying the cops were right. Just that the wording in 5A isn’t make it immediately obvious that what they did was wrong. Such ambiguities are exactly the types of interpretation the SCOTUS should provide.


28 posted on 01/22/2013 3:40:54 PM PST by Sherman Logan
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To: Lurking Libertarian

That was before the modern situation of the exclusionary rule; such a situation, even if found to be contrary to the constitution, in that day would not have derailed a criminal prosecution like it does now. Instead, the government could be sued for the allegedly illegal search (and possibly, quite separately, for the trespass). This no longer happens.


29 posted on 01/22/2013 3:45:58 PM PST by HiTech RedNeck (How long before all this "fairness" kills everybody, even the poor it was supposed to help???)
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To: x1stcav

I wouldn’t shoot it. I’d take it down, alter the serial #, paint it and install it on my house or outbuildings for my security system. Unless it was junk then I’d sell it on E-bay. lol


30 posted on 01/22/2013 3:46:16 PM PST by TigersEye (Stupid is a Progressive disease.)
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To: marron
Since they had witnesses who had seen the plants, why didn't they get the warrant before the set up the cameras? For me, without a warrant, whatever they learned from the cameras is inadmissible. There is no difference between a covert camera and a wire-tap.

I don't like druggies and I don't like drug dealers. But private property means private property. You have no right to surveil a private citizen without probable cause and if its on his property, a warrant.

I agree. This is a price of The War On Drugs and freedom and rights wise the cost has now become too great. There was very likely more illicit drugs being used by officials in Washington, DC in the past weekend than all persons living in the entire state of Wisconsin in the past month. The allowance of property forfeitures in the W.O.D. needs to be stopped by federal law. Once that is ended many of the abuses will end as well.

I also believe the time has come for the Judaical Branch of government except the USSC to be elected by We The People and USSC terms limited to one term of twelve years. We need term limits in a three branches of government.

31 posted on 01/22/2013 3:52:49 PM PST by cva66snipe (Two Choices left for U.S. One Nation Under GOD or One Nation Under Judgment? Which one say ye?)
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To: DesertRhino
“Officers entering an ‘open field’ is not an area enumerated as protected under the Fourth Amendment,” ...if this is true, then why the cameras, why not just wander throught their fields openly, searching at will as they claim they have the right to do?

Exactly.

32 posted on 01/22/2013 3:54:14 PM PST by marron
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To: Altariel

This “curtilage” BS is what a local judge cited in giving Weed Nazi Sonny Gohrman a free pass in getting one of our citizens murdered by the police. According to the judge, Daniel Wasilchen didn’t get his civil rights taken away by the weed weasel because they weren’t on the “curtilage” of his property. The weed whacker came back with a Snohomish County deputy and Daniel was killed in the exchange because he refused to back down or put his gun away on his own property.


33 posted on 01/22/2013 3:54:36 PM PST by Rinnwald
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To: cva66snipe

What! The JOOZ have taken over the USSC!

(Seriously that should say “Judicial branch”)

I guess that might make it easier to get a court OUT of an Obama-packed situation, but it would also make it easier to get a court IN it, as well.


34 posted on 01/22/2013 3:56:04 PM PST by HiTech RedNeck (How long before all this "fairness" kills everybody, even the poor it was supposed to help???)
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To: Altariel

If you somehow discovered that the cameras had been installed then much fun could be had.

Enlist some helpers and stage fake clan rallies, bigfoot, aliens and UFOs ...etc ;-)


35 posted on 01/22/2013 3:56:29 PM PST by Bobalu (It is not obama we are fighting, it is the media.)
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To: Lurking Libertarian

I always find it amazing that ‘settled case law’ only goes back to say...1920. Anything older is just....old and forgotten.

I see no emanations from penumbras in my copy of Constitution. Damn, I always get the out-dated stuffs


36 posted on 01/22/2013 3:56:57 PM PST by i_robot73
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To: HiTech RedNeck
That was before the modern situation of the exclusionary rule;

No, the exclusionary rule in federal prosecutions dates back to Weeks v. United States in 1914; Hester was an exclusionary rule case.

37 posted on 01/22/2013 3:59:10 PM PST by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: i_robot73
I always find it amazing that ‘settled case law’ only goes back to say...1920. Anything older is just....old and forgotten.

The Hester case says that the rule that no search warrant is needed for open fields comes from English Common Law, but I never looked to see if that's true.

Another point: the U.S. Supreme Court had almost no jurisdiction over criminal cases until 1889; before then, federal criminal cases were heard only by Circuit Courts, so in the field of criminal law, there really aren't very many SCOTUS cases older than 1920. And search and seizure cases became common only with Prohibition.

38 posted on 01/22/2013 4:08:26 PM PST by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: Altariel

Can Citizens legally Hide a Surveillance Camera on Govt Land?


39 posted on 01/22/2013 4:27:11 PM PST by bunkerhill7 (The Second Amendment has no limits on firepower.)
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To: Altariel
Sounds like fruit of the poisonous tree to me.

Almost literally.

40 posted on 01/22/2013 4:50:47 PM PST by E. Pluribus Unum (TYRANNY: When the people fear the politicians. LIBERTY: When the politicians fear the people.)
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To: bunkerhill7
Can Citizens legally Hide a Surveillance Camera on Govt Land?

As long as they don't mind being "disappeared" if they come up with any evidence.

41 posted on 01/22/2013 4:52:22 PM PST by E. Pluribus Unum (TYRANNY: When the people fear the politicians. LIBERTY: When the politicians fear the people.)
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To: Altariel
Why would anyone think you would need a warrant? "Drugs" is the root passphrase to the Constitution. You can do anything you want as long as you suspect evil drugs are involved.
42 posted on 01/22/2013 6:37:01 PM PST by zeugma (Those of us who work for a living are outnumbered by those who vote for a living.)
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To: x1stcav

“The better question is...can you shoot it?”

You have to find it first...and I doubt it was as obvious as the one in the photo.


43 posted on 01/22/2013 8:10:36 PM PST by BobL
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To: DesertRhino
...why not just wander throught their fields openly, searching at will as they claim they have the right to do?

'Cause that's a good way to get shot?

44 posted on 01/23/2013 9:14:37 AM PST by JimRed (Excise the cancer before it kills us; feed &water the Tree of Liberty! TERM LIMITS, NOW & FOREVER!)
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