By Karissa Murphy, Executive Editor
The Fourth Amendment to the United States Constitution provides, in relevant part, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]”[1] As far back as 1886, the Supreme Court of the United States has recognized a concern for privacy in the home.[2] The Court has even extended this protection of the home to include the area “immediately surrounding and associated with the home.”[3] This area, known as the curtilage, is “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.”[4]
However, not every entry upon the curtilage is considered a violation of the Fourth Amendment.[5] For instance, officers are generally permitted to enter a property and conduct a “knock-and-talk.” This is because a “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.”[6] Therefore, a law enforcement officer without a warrant may approach a home and knock, “precisely because that is no more than any private citizen might do.”[7]
If law enforcement officers have an implied license to enter one’s premises and conduct a knock-and-talk, is there any way a homeowner can revoke this implied license? For example, can a homeowner revoke it by posting “No Trespassing” signs on their property? Some courts have adopted this principle, reasoning that the license granted to enter property to knock on a person’s door is not unlimited; “[r]ather it extends unless and until the homeowner provides express orders to the contrary.”[8] Other courts, however, have come to the opposite conclusion. For instance, the Tenth Circuit recently held “[a] homeowner may post as many ‘No Trespassing’ signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn’t enough to revoke the state’s right to enter.”[9]
The Supreme Court of the United States now considers this very issue in Christensen v. Tennessee.[10] In August 2013, two law enforcement officers drove down James Christensen’s driveway, parked near his residence, and walked onto his front porch.[11] Christensen came out onto his porch and closed the door behind him.[12] The officers claimed they could smell the odor of methamphetamine being manufactured inside the house.[13] When the officers asked if they could search his home, Christensen refused to give them consent and asked that they leave his property.[14] One of the officers then physically detained Christensen, while the other forced the front door open.[15] Inside, the officer discovered an active methamphetamine lab, various items associated with the manufacture of methamphetamine, and several firearms.[16] Christensen was indicted on one count each of resisting arrest, promoting the manufacture of methamphetamine, initiating the manufacture of methamphetamine, and two counts of possession of a firearm during the commission of a dangerous felony.[17]
Prior to trial, Christensen filed a motion to suppress, arguing that the evidence had been obtained as a result of an illegal search of his home.[18] Christensen claimed that the officers’ entry onto his property required a warrant because he had “No Trespassing” signs posted near his driveway.[19] His motion was denied, and Christensen was ultimately found guilty on all charges at trial.[20] The Court of Appeals affirmed his conviction.[21] However, Judge John Everett Williams filed a separate opinion concurring in part and dissenting in part. Judge Williams reasoned that by posting “No Trespassing” signs, Christensen had revoked any implied consent for the officers to enter his property without a warrant.[22]
On appeal to the Supreme Court of Tennessee, Christensen again challenged the denial of his suppression motion by arguing that the “No Trespassing” signs posted on his property revoked any implied license the officers had to enter without a warrant.[23] The Supreme Court reasoned that under Jardines,[24] as long as the officers’ conduct in approaching Christensen’s home did not “‘objectively reveal[] a purpose to conduct a search,’ such as by bringing a drug-sniffing dog onto the front porch,” then their entrance onto the curtilage of his property did not offend the Fourth Amendment.[25] The court concluded that a person may take steps to revoke or limit an officer’s implied license; however, Christensen’s “No Trespassing” signs were not sufficient to do so. In reaching this conclusion, the court agreed with the reasoning of the Idaho Court of Appeals:
[While] posting “No Trespassing” signs may indicate a desire to restrict unwanted visitors and announce one’s expectations of privacy[,] . . . such signs cannot reasonably be interpreted to exclude normal, legitimate inquiries or visits by mail carriers, newspaper deliverers, census takers, neighbors, friends, utility workers and others who restrict their movements to the areas of one’s property normally used to approach the home.
State v. Rigoulot, 846 P.2d 918, 922 (Idaho App. 1992).
Rather, the Tennessee Supreme Court established that an objective, totality of the circumstances approach would be appropriate in determining whether a reasonable person would conclude that entry onto a particular property is categorically barred.[26] However, there must be more than a simple “No Trespassing” sign posted to be sufficient, because “a homeowner who posts a ‘No Trespassing’ sign is simply making explicit what the law already recognizes: that persons entering onto another person’s land must have a legitimate reason for doing so or risk being held civilly, or perhaps even criminally, liable for trespass.”[27] Although the court does not definitively state what would be enough to revoke the implied license law enforcement officers have to enter a property, the court mentions barriers blocking the driveway, such as a gate, may be one factor considered in the analysis.[28]
It will be interesting to see which side of the debate the Supreme Court of the United States may decide is the correct one; as of this writing, the petition remains pending.[29] In his dissent in Carloss, Justice Neil Gorsuch stated, “[Y]ou can’t help but wonder if millions of homeowners (and solicitors) might be surprised to learn that even a long line of clearly posted No Trespassing signs are insufficient to revoke the implied license to enter a home’s curtilage — that No Trespassing signs have become little more than lawn art.”[30]
Karissa Murphy is a 2018 J.D. candidate, an executive editor for Juris Magazine, and Treasurer on the Moot Court Executive Board.
Sources
[1] U.S. Const. amend. IV.
[2] Boyd v. United States, 116 U.S. 616 (1886).
[3] Florida v. Jardines, 569 U.S. 1, 9 (2013).
[4] Id. (quoting California v. Ciraolo, 476 U.S. 207, 213 (1986)).
[5] Id.
[6] Id.
[7] Id. (quoting Kentucky v. King, 563 U.S. 452, 469 (2011)).
[8] United States v. Holmes, 143 F. Supp. 3d 1252, 1259 (M.D. Fla. 2015).
[9] United States v. Carloss, 818 F.3d 988, 1004 (10th Cir. 2016) (Gorsuch, J., dissenting).
[10] State v. Christensen, 517 S.W.3d 60 (Tenn. 2017).
[11] Id. at 64.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] State v. Christensen, No. W2014-00931-CCA-R3-CD, 2015 WL 2330185, at *1 (Tenn. Crim. App. May 14, 2015), appeal granted (Sept. 22, 2015), aff’d, 517 S.W.3d 60 (Tenn. 2017).
[22] Id.
[23] Christensen, 517 S.W.3d at 64.
[24] Florida v. Jardines, 569 U.S. 1 (2013).
[25] Christensen, 517 S.W.3d at 71 (internal citations omitted).
[26] Christensen, 517 S.W.3d at 75.
[27] Id.
[28] Id.
[29] Christensen v. Tennessee, SCOTUSblog, http://www.scotusblog.com/case-files/cases/christensen-v-tennessee/ (last visited Jan. 4, 2018).
[30] Carloss, 818 F.3d 988 at 1011.
