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Ask The Festival Lawyer: When Do Police Need a Search Warrant at a Festival?

by The Festival Lawyer | @FestivalLawyer Thu June 18, 2015 | 12:00 AM

Dear Festival Lawyer,

My friends and I were excited to attend our 2nd Bonnaroo, but we had the misfortune to encounter several Coffee County Sheriffs on our first night. They entered our campsite under the pretext that they smelled marijuana. They were extremely rude and one officer commented that we shouldn't worry as "you can find any drug in the festival anyway." As my friend came out of the tent they searched her bag and found her stash. My question is, do cops need a search warrant for a tent at a festival?

– Name Withheld

First off, sorry to hear about your unpleasant experience. Coffee County had a new DA this year and there was a lot of speculation on different Bonnaroo social media sites about whether he would “crack down” on Bonnaroovians. I loved last year’s 'Roo and hope that they don’t wreck the experience. Heck, Jack White’s set was my favorite festival moment of the year and I met awesome people there! #pondosarmy

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Bonnaroo campgrounds. Photo by: Jon Elbaz Creative Commons

The issue of whether the police need a search warrant to search a particular festival location (your hotel room, an RV, tent, etc.) comes up a lot. In fact, when I do the Festival Lawyer “Know Your Rights” workshops at festivals, I always start with a general search warrant discussion that I call, “Do you even 4th Amendment, Bro?”

The 4th Amendment reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Supreme Court has interpreted the 4th Amendment to have two parts. The first part – what the Supreme Court calls the “reasonableness” clause – prohibits “unreasonable” searches and seizures. In other words, you have a right to be free from random detentions. The second part of the 4th Amendment is sometimes called the “warrant” clause. It provides that the police may not search you or your property unless they have a search warrant.

Now, the Supreme Court has carved out a number of exceptions to this search warrant requirement. The basic test of whether a warrant is needed is whether or not you have a “reasonable expectation of privacy” in the location to be searched. Let’s go through a quick summary of different possible festival locations.

Homes? YES

Outside Lands 2013 Arrested Art Gimbel

Photo by: Fest300

Yes, I know this is not a festival, (unless you are counting “Homearoo”) but it’s a good place to start the warrant discussion. As you might imagine, your privacy rights are strongest when you are in your own home. In fact this tradition is so strong it is sometimes called the “Castle Doctrine.” This come from the English Common Law phrase “An Englishman’s home is his castle.” (English Common Law is sort of the “Old School” or “Vinyl” version of American law.)

Police must get a search warrant before they are allowed to search your home, unless there is some kind of legal exception like “exigent circumstances.” The most common exception is when the owner gives consent or permission for the cops to search the house. In other words, like vampires, cops can only come into your home (without a warrant) if you invite them in.

Okay, as the Arctic Monkeys song says, “Perhaps vampires is a bit strong,” but you get the point; if an officer wants to search your home you should assume you are a suspect in a criminal investigation. Act accordingly. Remain silent and ask for a lawyer. The only thing you should say is: “Officer, I can’t let you inside without a search warrant.” Don’t worry if you can’t remember this phrase, you can get a doormat to remind you.

Automobiles? NO

Because cars can easily be moved to destroy evidence and are usually in public places, the Supreme Court has ruled that you don’t have a "reasonable expectation of privacy” that would require a search warrant. Certain states (especially those on the gulf coast) have mandated the requirement of cops getting a search warrant for cars in their state constitution. But in general, the persistent belief that cops need a warrant to search a car is a legal urban myth.

RVs and Motor Homes? NO

In California v. Carney 471 U.S. 386 (1985), the U.S. Supreme Court ruled that motorhomes are to be treated like cars and that the “automobile exception” applies. Therefore, police DON'T normally need a search warrant to search your RV. In other words, after this Supreme Court ruling your privacy rights in a motor home are “NO MORE!” (yes, that’s a “Winnebago Man” reference.)

Hotel Room Searches? YES

“Our hotel room looked like the site of some disastrous zoological experiment involving whiskey and gorillas.” –Hunter S. Thompson, Fear and Loathing in Las Vegas

I mentioned in last week’s column how I had Phish fans tweet me to say that they were staying together at a hotel for a concert. Cops were basically going up and down the hallways of the hotel banging on doors and saying “Police, open up” and randomly searching rooms. They asked whether cops can do that without a warrant. As long as you have not checked out, been kicked out, returned the key without paying or otherwise given up the room, you generally have an expectation of privacy in that room. That means that the police can’t ask hotel staff to open or search the hotel room without a warrant.

There is a MAJOR exception to this rule. If the hotel can show that you are using your hotel room like Dr. Gonzo (i.e. openly engaging in illegal activity or destroying the room), management has the right to enter and search your room without your permission.

Tents at Festival Campgrounds? YES

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In People v. Hughston 168 Cal. App. 4th 1062 (2008), a California court was asked to rule on whether the police needed a warrant to search a tent at the Sierra Nevada World Music Festival at the Mendocino County fairgrounds. The tent was put up within a designated site on land specifically set aside for camping during a music festival. The court found that the defendant was at the festival lawfully and had established some level of privacy at the tent. Therefore, he did have a “reasonable expectation of privacy” in the tent and therefore a warrant was needed under the Fourth Amendment.

In its opinion, the Hughston court talks about various structures where you don’t have a reasonable expectation of privacy. "The tent structure was erected on land specifically set aside for camping during the music festival. Appellant's occupancy is clearly distinguishable from the squatter in a private residence (Sandoval), or the occupant of a cardboard box (Thomas) or a cave (Ruckman)." The court added, “One should be free to depart the campsite for the day’s adventure without fear of this expectation of privacy being violated.” (Hughston, at p. 1070)

I talked to my friend, Robert Bragdon who is an attorney in the Nashville area and a fellow festie. I asked him about the issue of warrantless tent searches in Tennessee. He informed me that in a typical “tent” case like this, a DA would probably argue one of three potential exceptions to the warrant requirement.

First, the State could likely argue there was no “expectation of privacy” in the tent and that therefore there was no need for a search warrant. Second, the State could argue that the cops had no time to get a warrant and that if they didn’t act quickly, the drugs might be destroyed. This is the legal doctrine of “exigent circumstances.” Finally, another potential argument by the DA could be “plain view,” in the event that the tent flaps were not zipped shut or if tent windows were left open, thus leaving the inside visible to anyone who wished to peer inside.

While there is a lack of cases in Tennessee on the subject of tents and privacy interests created, Robert points out that other state courts have indicated that an individual has a privacy interest in a tent when legally on private land and even have extended this privacy interest to public campgrounds.

Got a question for the Festival Lawyer? Email him at askthefestivallawyer@fest300.com

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Disclaimer: Although the Festival Lawyer is a lawyer he is not YOUR lawyer. The ATFL column gives general information about legal topics, NOT legal advice. The law is complex, varies a great deal from state to state, and each factual situation is different. Also, “The Festival Lawyer” is a fictional character. Think of the Festival Lawyer more like a legal spirit guide, encouraging you to educate and inform yourself.