TULSA - The battle over privacy continues in Rogers County after the sheriff admittedly installed a video surveillance system on private land without a warrant.
Sheriff Scott Walton tells KRMG he doesn't need a warrant, because of an "open field" exception to the Fourth Amendment protection against illegal search.
But attorneys consulted by KRMG point to other case law, specifically Oklahoma law, that makes the situation murkier.
The case of Dale v. State (OK CR 1, 2002) seems to favor Kirt Thacker's position.
Thacker, a Rogers County Commissioner, owns the land where the camera was planted and later discovered.
He's the target of an investigation for allegedly using county equipment to make improvements to his property.
After reading the decision on Dale v. State, attorney John Dunn, a former police officer, says Sheriff Walton may have violated Thacker's privacy.
The opinion of the court in that case reads in part:
We begin by restating the fundamental rule that searches conducted outside the judicial process, without prior approval by a magistrate, are presumptively unreasonable under both the Fourth Amendment to the United States Constitution, and Article 2, § 30 of the Oklahoma Constitution. The exceptions to this rule are "jealously and carefully drawn," and there must be a showing by those who seek exemption that the exigencies of the situation made immediate action imperative.
It goes on to say:
When law enforcement has this much time to obtain a search warrant, one should and must be obtained.
In any case, Dunn questioned the decision to place the camera without a warrant.
"There's no harm to getting a warrant, you don't have to file it, it doesn't become a public record or anything of that nature. You know, even wiretaps you don't have to tell the person that they've been wiretapped for 90 days," he said.
"Even when I was a cop I was very conservative about 'if you can get a warrant, do it,'" he added.
He says Thacker may even have a civil case.
"If he can prove that a clearly established right was violated, he could sue the sheriff both professionally and personally," Dunn said.
He said if 10 Rogers County citizens get together, they could also sue under a law known as "qui tam."
They would be able to sue for the misuse of public funds, and if proven, could also recover their attorney fees.
Such cases are not common, but are legal under Oklahoma law.