What I meant was if the owners of the phone that took the photo were illegally trespassing, are photos they took illegally admissible?
In the broadest sense of the law, not admissible.
The judge could rule it admissible if its admission doesn't bring Justice into disrepute. The standard is along the lines of would a reasonable person find this acceptable and not prejudicial nor bring the act of Justice into disrepute.
The defense can petition in order to give reasons why it should be ruled inadmissible.
There is a definite difference in the way the law and courts view a Police action on evidence gained versus a non police civilian.
As I said before, the Police had a warrant to be on the farm and in a described geographic location(per the description on the sworn warrant).
If they could have photoed the incinerator from that said warranted location or see it from that said location, they could simply get on the phone and swear a warrant to physically approach search, photo, test and seize the incinerator were it was located. The law considers that the eye cannot trespass.
Now, when the judge is asked to rule on the neighbor(s) photo, he would likely allow it into evidence because the police would have found it anyway in this case. If the incinerator had been out of view in an enclosed barn, the judge probably wouldn't allow admission as there is a possibility the Police would have missed it except for the trespassing neighbor(s) bringing it to the Police's attention.
Likely the neighbor photo is not a overly significant piece of evidence as the police have testimony where the incinerator was and they HAVE the incinerator and have searched the surrounding area. So likely they have way better evidence than the photo.
JMO
