The “Fourth Amendment’s Protected Areas” and the Police

The Fourth Amendment guarantees that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

Deciding whether a specific police search was reasonable or unreasonable can be tricky, and a recent opinion by the NC Court of Appeals illustrates some of the reasons why. To understand that opinion, however, one needs to know about two rather obscure legal concepts—curtilage and the implied license to enter. In Florida v. Jardines, a case decided by the US Supreme Court in 2013, Justice Scalia provides a clear and lively explanation of both.

Curtilage

Scalia begins by discussing the important role that curtilage plays in protecting peoples’ homes from unreasonable searches:

When it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.… This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.

We therefore regard the area immediately surrounding and associated with the home—what our cases call the curtilage—as part of the home itself for Fourth Amendment purposes.…

While the boundaries of the curtilage are generally clearly marked, the conception defining the curtilage is at any rate familiar enough that it is easily understood from our daily experience.… The front porch is the classic exemplar of an area adjacent to the home and to which the activity of home life extends.…

While law enforcement officers need not shield their eyes when passing by the home on public thoroughfares, … an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment’s protected areas. (Emphasis added and quotation marks and citations omitted.)

The Implied License to Enter

Does this mean police officers may never enter the curtilage surrounding a home? Certainly not. Scalia goes on to say:

A license [to enter] may be implied from the habits of the country, notwithstanding the strict rule of the English common law as to entry upon a close.… We have accordingly recognized that the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds…. This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do. (Emphasis added and quotation marks and citations omitted.)

Can the Implied License Be Revoked by Posting “No Trespassing” Signs?

Justice Scalia did not address that question in Jardines, but the North Carolina Court of Appeals was forced to do so last month. In State of North Carolina v. Smith a defendant (who had been sentenced to 96 to 128 months in prison for crimes that included discharging a weapon into an occupied vehicle and three counts of possession of a firearm by a felon) argued that the evidence against him should have been suppressed at trial because it was gathered in violation of the Fourth Amendment. While he admitted that he had agreed to let the police search his house when they asked, he claimed that by posting a “no trespassing” sign on his fence he had revoked the license to enter, and that the police therefore had no right to enter his property in the first place.

In the course of considering this claim the Court acknowledged several instances in which “Courts in other jurisdictions … ruled that the implied license was successfully revoked by homeowners”:

See Bainter v. State (license revoked by presence of six foot chain link gate within barbed wire fence, accompanied by “No Trespassing” signs); Brown v. State (license revoked by presence of two concentric chain link fences around property, “No Trespassing” signs on outer fence, and verbal request to leave by owner); Robinson v. State (license revoked by closed chain-link fence bearing both “No Trespassing” and “Beware of Dog” signs).

It emphasized, however, that:

[W] are not aware of any court that has ruled that a sign alone was sufficient to revoke the implied license to approach. See, e.g., United States v. Bearden (“knock and talk” upheld where officers entered property through open driveway gate marked with “No Trespassing” signs); United States v. Denim (six “No Trespassing” signs not sufficient to revoke implied license).  

In view of these precedents, and after reviewing evidence showing that the defendant’s efforts at discouraging visitors were half-hearted at best, it upheld the trial court’s finding that:

The actions of the detectives and deputy were the equivalent of a ‘knock and talk’ encounter…. The driveway served as an access route to the front door.… By entering the gate and driving down the driveway, the detectives and deputy did not deviate from the area where their presence was lawful, and thus, did not violate the Fourth Amendment.

Given the facts in State v. Smith this seems like the right decision, but it doesn’t do much to answer the question of whether a homeowner can revoke the implied license to enter by posting “no trespassing” signs. However, a week or so after the NC Court of Appeals handed down its decision in Smith, the US Court of Appeals for the 10^th Circuit handed down a decision in a similar case that suggests the answer may be, “No.”

In United States of America v. Carloss, the defendant sought relief from a conviction for drug and weapons offenses based on evidence gathered by police officers who had walked up to his front door and asked for permission to search the premises. The Court acknowledged that:

There was a “No Trespassing” sign on an approximately three-foot-high wooden post located beside the driveway, on the side farthest from the house, and another sign tacked to a tree in the side yard, both stating “Private Property No Trespassing.”

There was a sign, on a wooden pole in the front yard along the side of the driveway closest to the house, and a sign on the front door of the house, both stating “Posted Private Property Hunting, Fishing, Trapping or Trespassing for Any Purpose Is Strictly Forbidden Violators Will Be Prosecuted.” (Citations omitted.)

So, not only were there a total of four “no trespassing” signs, one of them was posted in place of “the knocker on the front door” that, according to Justice Scalia, “is treated as an invitation or license to attempt an entry.” Nevertheless, the majority held that:

Under the circumstances presented here, those “No Trespassing” signs would not have conveyed to an objective officer that he could not approach the house and knock on the front door seeking to have a consensual conversation with the occupants.

If four “no trespassing” signs, including one posted on the front door, aren’t sufficient to revoke the police’s right to “knock and talk,” it’s hard to imagine what would be.

The Carloss opinion is notable for a stinging thirty-page dissent by Judge Gorsuch that is worthy of Justice Scalia. After reviewing the common law roots of curtilage, the implied license, and its revocation, as well as the original understanding of these issues at the time the Fourth Amendment was written and ratified, Judge Gorsuch concludes:

The government appears to be moved by the … worry: that if clearly posted No Trespassing signs can revoke the right of officers to enter a home’s curtilage their job of ferreting out crime will become marginally more difficult. But obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits. Neither, of course, is it our job to weigh those costs and benefits but to apply the Amendment according to its terms and in light of its historical meaning. Besides, it is hardly the case that following the Fourth Amendment’s teachings would leave the government as bereft of lawful alternatives as it seems to suppose. The Amendment and the common law from which it was constructed leave ample room for law enforcement to do its job. A warrant will always do. So will emergency circumstances. After-the-fact consent may suffice if freely given. And, of course, there’s no need for consent when officers search only open fields rather than curtilage. Neither is there need for consent when officers enter curtilage for a non-investigative purpose. Our duty of fidelity to the law requires us to respect all these law enforcement tools. But it also requires us to respect the ancient rights of the people when law enforcement exceeds their limits.