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Old 04-04-2020, 11:53 PM
UltraVires is offline
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Trespassing and Undercover Investigations


After studying for a pending case, I have hit a road block in my argument that would likely thwart undercover investigations if taken to be true, but I cannot in my own mind find a plausible argument against it. It is like this:

The Supreme Court has resurrected the "trespass" theory of the Fourth Amendment and added it in addition to the Katz "reasonable expectation of privacy" test. https://supreme.justia.com/cases/federal/us/569/1/

The theory goes that the police violate your rights when they trespass upon an area protected by the Fourth Amendment, particularly your house. The case I cited goes to great lengths to say that a police officer may do what any private citizen may do, which is walk up to your front door, knock on it and ask to speak with you.

The fact that you have a pathway to your front door and social custom dictates that any person, or the police, have an implied license to walk up and attempt to speak to you. But that line of analysis stops there.

Like any implied license, it can be revoked by express communication. What if every drug dealer and/or everyone who was doing something illegal in his or her home (or just someone who wanted to keep the cops out for anti-government reasons) posted a sign at the entrance to their property which stated something to the effect of:

"No persons who are working for law enforcement in any capacity, or have the intention of reporting what they see or hear inside these premises, are permitted entry on these premises. Any implied license to enter for these purposes is hereby expressly revoked"?

Would such a simple sign be enough to make entry by police or family/friends/associates who are working with the police a trespass which would exclude anything they find from being used in a criminal trial?

The quick answer is to say "No, of course not. That would be absurd. Ultravires, it sounds like you need to read Snopes or go back to law school." But how does one square that answer with recent case law?
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Old 04-05-2020, 12:21 AM
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To add, although my question is general, the specific facts of the case are that the defendant, in the prior six months had told all of his friends that if they were ever "snitches" they were not welcome in his home.

Well, one of those people got popped and started working for the police. That person then entered his home and allegedly bought drugs from him in his home. That person will testify that the defendant stated that snitches were not welcome in his home.

Consistent with current case law, did the defendant's admonition that no "snitches" were welcome in his home give notice to that person that entry was unauthorized and make it a trespass, one directed by the state?
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Old 04-05-2020, 01:23 AM
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IANAL, but aren't there rules about definiteness and specificity? (For example IIUC, certain contracts require a date definite rather than "when I sell my harvest.")

A No Trespassing sign directed at "people who might become snitches" is unenforceable, I would guess. But even "already are snitches" might be treated as indefinite or insufficiently specific since their snitchiness is a secret. But I'm just musing: IA definitely NAL.
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Old 04-05-2020, 08:24 AM
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IANAL , but it seems to me that if the defendant's statement meant that the snitch was trespassing, then Macy's could simply put up a sign saying that no one who was ever arrested for/accused of shoplifting had permission to be in the store rather than what they actually do in my city - which is give each individual person a "trepass notice". What do department stores do where you live? It would also mean that when someone ignores a "No solicitors" sign, they could be arrested. I'm not so sure a court would go along with that "in between" - you might be able to put up a sign prohibiting all people from walking up your steps to the front door* , and you could certainly prohibit an individual, specific person by telling him "you aren't allowed in my house" but I don't know about " members of X group don't have permission to enter".



But even leaving that aside, it doesn't make sense to me one person could keep the police from knocking on the front door with a sign at the entrance to the property while another, whose door you knock on while standing on the public sidewalk couldn't.




* usually , the way people in my area accomplish this is by putting a fence and gate around the property, with a doorbell next to the gate. It never occurred to me until now that this might be done to keep the police a certain distance from the house.
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Old 04-05-2020, 10:56 AM
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My admittedly cursory reading suggests the decision made a distinction based on the purpose of the visit. The reasoning seems to be that a property owner grants some public access to his property so there is a reasonable expectation that people might walk up to your front door. This reasonable expectation includes the police walking up to your front door. So physical presence alone does not violate your right to privacy.

The distinction seems to be what the visitor's purpose is. A normal visitor walks up to your front door in order to speak with you. But the police in this case brought a drug-sniffing dog up to the front door in order for it to sniff for the presence of drugs. The court appears to have ruled that a visitor can come on to your property for the purpose of talking to you but cannot come on to your property for the purpose of having a dog sniff for the presence of drugs. The purpose of the visit determines whether it is a reasonable exception to your right to privacy.
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Old 04-05-2020, 01:21 PM
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State v. Christensen has a long discussion with many cases cited about this very issue.

"The question before us in this case is whether posting “No Trespassing” signs near an unobstructed driveway is an express order sufficient to revoke or limit the invitation/license such that a police officer may not legitimately approach the residence via the driveway in order to conduct a warrantless knock-and-talk encounter."

...

"Most jurisdictions that have considered the issue, however, appear to hold that “No Trespassing” signs, in and of themselves, will not invalidate a knock-and-talk."

...

"We agree with the lead opinion below that the Defendant‟s signs “would not have prevented the casual visitor or the reasonably respectful citizen from approaching [the Defendant‟s] residence.” Christensen, 2015 WL 2330185, at *8. Accordingly, we hold that, under the totality of the circumstances, the Defendant‟s “No Trespassing” signs posted near his unobstructed driveway were not sufficient to revoke the implied license referred to in Jardines. The Defendant is not entitled to relief on this basis."

Last edited by Hamlet; 04-05-2020 at 01:21 PM.
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Old 04-05-2020, 02:13 PM
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Accordingly, we hold that, under the totality of the circumstances, the Defendant‟s “No Trespassing” signs posted near his unobstructed driveway were not sufficient to revoke the implied license referred to in Jardines.
I wonder what would’ve happened if he’d posted a sign that said “No Trespassing; and I hereby explicitly revoke the implied license referred to in Jardines.”
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Old 04-05-2020, 03:49 PM
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I wonder what would’ve happened if he’d posted a sign that said “No Trespassing; and I hereby explicitly revoke the implied license referred to in Jardines.”
I doubt that would make any difference. Individuals are not allowed to unilaterally declare that they are not subject to a law or a court decision.
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Old 04-05-2020, 04:42 PM
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I wonder what would’ve happened if he’d posted a sign that said “No Trespassing; and I hereby explicitly revoke the implied license referred to in Jardines.”
From a footnote in the opinion I cited earlier:

"We emphasize that this approach recognizes the possibility that a sign, under the right circumstances, could be sufficient to revoke the implied license. Accordingly, we also emphasize that we are not adopting a per se rule in this case."

I would think that the specific reference to Jardines may not help, because, as a general rule, police are not required to know the names and specific holdings of all Supreme Court rulings. However, a sign that specifically said it was excluding all law enforcement from the implied license on any of their property, including their curtilage for any purpose whatsoever may be "sufficient to revoke the implied license". Such a sign might also raise a law enforcement officers' eyebrows and bring about unwanted investigation, however.

Last edited by Hamlet; 04-05-2020 at 04:45 PM.
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Old 04-05-2020, 06:32 PM
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Originally Posted by Hamlet View Post
State v. Christensen has a long discussion with many cases cited about this very issue.

"The question before us in this case is whether posting “No Trespassing” signs near an unobstructed driveway is an express order sufficient to revoke or limit the invitation/license such that a police officer may not legitimately approach the residence via the driveway in order to conduct a warrantless knock-and-talk encounter."

...

"Most jurisdictions that have considered the issue, however, appear to hold that “No Trespassing” signs, in and of themselves, will not invalidate a knock-and-talk."

...

"We agree with the lead opinion below that the Defendant‟s signs “would not have prevented the casual visitor or the reasonably respectful citizen from approaching [the Defendant‟s] residence.” Christensen, 2015 WL 2330185, at *8. Accordingly, we hold that, under the totality of the circumstances, the Defendant‟s “No Trespassing” signs posted near his unobstructed driveway were not sufficient to revoke the implied license referred to in Jardines. The Defendant is not entitled to relief on this basis."
Interesting. I my state and AFAIK most states signs stating "No Trespassing" for hunting purposes, so long as they are posted in compliance with the statute (more more than 100 feet apart, on trees and of a sufficient height to make them eye level) would subject a person to arrest if he or she violated the directive of the sign.

If a person wanted to revoke the implied license to approach his door, how could he do it sufficiently? You could argue that he could put up a fence with a locked gate, but other cases would hold that is discriminatory against the poor who cannot afford fences.
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Old 04-05-2020, 06:37 PM
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My admittedly cursory reading suggests the decision made a distinction based on the purpose of the visit. The reasoning seems to be that a property owner grants some public access to his property so there is a reasonable expectation that people might walk up to your front door. This reasonable expectation includes the police walking up to your front door. So physical presence alone does not violate your right to privacy.

The distinction seems to be what the visitor's purpose is. A normal visitor walks up to your front door in order to speak with you. But the police in this case brought a drug-sniffing dog up to the front door in order for it to sniff for the presence of drugs. The court appears to have ruled that a visitor can come on to your property for the purpose of talking to you but cannot come on to your property for the purpose of having a dog sniff for the presence of drugs. The purpose of the visit determines whether it is a reasonable exception to your right to privacy.
And that is an excellent point. It would seem that no sign is required because although I allow solicitors to come to the front door, knock on it or ring the doorbell, and attempt to communicate with me, and I allow friends to come into my house because they are friends, this implied license does not extend to "people who are pretending to be friends but have the ultimate purpose of reporting what they see and hear to law enforcement." Even if I invite them in, they are gaining entrance through fraud which activates the doctrine of trespass ab initio.

Just as the implied license does not extend to police with a drug sniffing dog, it should equally not extend to people who are coming to my house with the intent to gather evidence in a criminal trial.

Last edited by UltraVires; 04-05-2020 at 06:38 PM.
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Old 04-05-2020, 06:46 PM
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Sorry for the triple post.


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Originally Posted by Little Nemo View Post
I doubt that would make any difference. Individuals are not allowed to unilaterally declare that they are not subject to a law or a court decision.
I agree, but that is not the case here. The individual would not be saying that the case law doesn't apply to him. He would be attempting to revoke the implicit consent that was discussed in Jardines. Jardines doesn't stand for the proposition that this implicit consent survives at all times.

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From a footnote in the opinion I cited earlier:

"We emphasize that this approach recognizes the possibility that a sign, under the right circumstances, could be sufficient to revoke the implied license. Accordingly, we also emphasize that we are not adopting a per se rule in this case."

I would think that the specific reference to Jardines may not help, because, as a general rule, police are not required to know the names and specific holdings of all Supreme Court rulings. However, a sign that specifically said it was excluding all law enforcement from the implied license on any of their property, including their curtilage for any purpose whatsoever may be "sufficient to revoke the implied license". Such a sign might also raise a law enforcement officers' eyebrows and bring about unwanted investigation, however.
Yes and no. Police are generally required to be up to date on controlling law. Any officer who took a drug sniffing dog to the front door, for example, would be on notice that such activity is prohibited.

Further, although it might make the police suspicious, an assertion of your constitutional rights cannot be a basis for probable cause. Under that theory, the police could ask to search your house, and then if you said "no" they could go to court and argue for a warrant under the basis that you must have something to hide since you refused the search.
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Old 04-06-2020, 01:36 PM
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..
The fact that you have a pathway to your front door and social custom dictates that any person, or the police, have an implied license to walk up and attempt to speak to you. But that line of analysis stops there.
...?

Just have a fence, with a gate (doesnt have to be locked) and a No Trespassing sign. Let friends, etc know that they can come in.

This would make police visits problematic.

But also- what can the cops do and see from the outside of the house? I mean, in line of what a ordinary person might see. The police cant walk around the house and peep under the shades, no more than a ordinary citizen can.

They can look into a open or unshaded window as they come up.

Last edited by DrDeth; 04-06-2020 at 01:38 PM.
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Old 04-07-2020, 12:32 AM
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Just have a fence, with a gate (doesnt have to be locked) and a No Trespassing sign. Let friends, etc know that they can come in.

This would make police visits problematic.

But also- what can the cops do and see from the outside of the house? I mean, in line of what a ordinary person might see. The police cant walk around the house and peep under the shades, no more than a ordinary citizen can.

They can look into a open or unshaded window as they come up.
Well, as I said earlier, prior case law seems to indicate that the poor as well as the rich should be able to protect their privacy. If the law would require a fence and a gate to effectuate the revocation of the implied license, you would have an equal protection problem because the poor would not be able to revoke it.

But yes, under case law, the police can act as any citizen might. When they are legally in a place, they do not have to shield their eyes. If while they are walking up to the front door they look through an windows and see bags of cocaine, then that is all fair and good.

Hamlet was kind enough to provide an excellent case which discusses much of the post-Jardines case law. In the case he cited, the Court held that a "No Trespassing" sign, without more was not enough to revoke the implied license as it is somewhat ambiguous. For example, if I walk up to a house and see a "No Trespassing" sign, I might not think that applies to me if I am trying to make him accept Jesus as his Lord and Savior.

Why? Because generally people view "No Trespassing" signs as simply reasserting what is already the law: Don't come on this property to steal stuff, but I am double telling you by putting up this sign.

But Jardines poses a larger query that is not discussed in the case law. It held that the implied license for religious advocates, girl scout cookie sellers, etc. implicitly does not apply to the police coming with a drug dog to sniff for drugs. That's fair enough, but couldn't you equally say that this implied license is not an invitation for people to come to your house with the express intent of harming you in a criminal case? I mean, that seems to be undisputed that no ordinary person would agree to such a visit.

If so, that should cover snitches and even police officers who suspect you of a crime and want to do a knock and talk. Yes, I have a sidewalk and a doorbell, but that is for social visitors, not people wanting to lock me up.
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Old 04-07-2020, 12:48 AM
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Well, as I said earlier, prior case law seems to indicate that the poor as well as the rich should be able to protect their privacy. If the law would require a fence and a gate to effectuate the revocation of the implied license, you would have an equal protection problem because the poor would not be able to revoke it.
...
If you can afford a house, you can afford a crappy little fence. Doesnt need to be secure.
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Old 04-07-2020, 12:51 AM
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But I missed your larger point. What can they see from the outside of the house? That isn't so much the question of what can they ask you to do once they have knocked on the door. They can ask to come in "just for five minutes" so that they can "clear all of this up" and by the time my client gets done talking to the officer he has admitted to killing JFK and intentionally releasing the coronavirus.

If they had not violated his privacy in the first instance, they would never have been in a position to subtly coerce him to talk, or pose as a friend and buy drugs from him inside the house.
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Old 04-07-2020, 12:53 AM
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If you can afford a house, you can afford a crappy little fence. Doesnt need to be secure.
Respectfully, I think that is a little dismissive. Most poor people rent and couldn't put up a fence if they wanted to, and we all have bills to pay. The fence building fund might be a little light that month, but the person still should have a way to protect his privacy.
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Old 04-07-2020, 01:06 AM
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Many communities also ban fences from coming any farther than the front plane of the house.
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Old 04-07-2020, 11:34 AM
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If you can afford a house, you can afford a crappy little fence. Doesnt need to be secure.
Many poor people can't afford a house. They rent. And the owner of the property they're renting might not want to pay for a fence.
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Old 04-07-2020, 01:59 PM
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Respectfully, I think that is a little dismissive. Most poor people rent and couldn't put up a fence if they wanted to, and we all have bills to pay. The fence building fund might be a little light that month, but the person still should have a way to protect his privacy.
I can build a fence from scrap wood and wire, cost= zero.

And no, people dont need a way to hide their meth labs from the police.
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Old 04-07-2020, 03:43 PM
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I can build a fence from scrap wood and wire, cost= zero.

And no, people dont need a way to hide their meth labs from the police.
?? Unless the police have probable cause to search my house, I have ever right to hide stuff from the police, nosy neighbors, or anyone else.
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Old 04-07-2020, 04:35 PM
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I agree, but that is not the case here. The individual would not be saying that the case law doesn't apply to him. He would be attempting to revoke the implicit consent that was discussed in Jardines. Jardines doesn't stand for the proposition that this implicit consent survives at all times.
IANAL but my understanding of Jardines is that it's saying the police can enter your property as long as they are doing so for the same reasons that you allow other visitors to enter your property. In other words, if you allow people in general to walk up to your front door, you cannot create a special exemption forbidding police officers (or "snitches") to do the same.

So I feel that if somebody put a sign up specifically saying “No Trespassing; and I hereby explicitly revoke the implied license referred to in Jardines.” they would be declaring that they are asserting they have the right to make special exemptions like specifically forbidding the police. The fact that they specifically refer to the Jardines decision seems to imply they are trying to claim the Jardines decision doesn't apply to them.

To make an analogy, if a town put up a sign that said “Speed limit 35mph; and we hereby explicitly revoke the implied limits referred to in Knowles” I think it would be clear they were going beyond merely setting a speed limit. They appear to be declaring that if you get a speeding ticket, the police officer would be allowed to conduct a full search of your vehicle.
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Old 04-07-2020, 05:15 PM
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IANAL but my understanding of Jardines is that it's saying the police can enter your property as long as they are doing so for the same reasons that you allow other visitors to enter your property. In other words, if you allow people in general to walk up to your front door, you cannot create a special exemption forbidding police officers (or "snitches") to do the same.

So I feel that if somebody put a sign up specifically saying “No Trespassing; and I hereby explicitly revoke the implied license referred to in Jardines.” they would be declaring that they are asserting they have the right to make special exemptions like specifically forbidding the police. The fact that they specifically refer to the Jardines decision seems to imply they are trying to claim the Jardines decision doesn't apply to them.

To make an analogy, if a town put up a sign that said “Speed limit 35mph; and we hereby explicitly revoke the implied limits referred to in Knowles” I think it would be clear they were going beyond merely setting a speed limit. They appear to be declaring that if you get a speeding ticket, the police officer would be allowed to conduct a full search of your vehicle.
I disagree. As a property owner, I can have whatever rules I want regarding who is permitted access. I can say that Little Nemo is allowed, but that scofflaw Dr. Deth is not. Because it is purely private property, I can say that no blacks or Jews are allowed, or I can ban white males. Public accommodations laws do not apply.

What Jardines was discussing is the general law of trespass. To what extent can you or Dr. Deth enter my property absent any indication that I have disallowed your entry? And what is clear from centuries of case law is that if you come to my house, see a sidewalk and steps up to the front door, that creates an implied license to walk up, knock on the door and attempt to speak with me for normal purposes.

But nobody disputes that I am able to revoke that implied license, but to be effective I have to communicate that in some way. Placing a fence and an armed guard who tells anyone who comes (that is not on my approved list) that they are not permitted to enter, is an undisputedly effective way to do that.

My point of discussion in this thread, given that armed guards are impractical for most people, is what else acts as notification that such implied consent is revoked? And I would think that if I have expressly told Dr. Deth that if he is simply coming to my house to find criminal activity (a snitch) and he does so with the intent of being a snitch, then he has been put on notice that his implied license to come has been revoked.

This is not like your hypothetical speed limit sign. Knowles places limits on government behavior which cannot be revoked with a sign. Jardines discusses private property owners' general expectations without further action. It does not state that those owners must always and forever extend the implied license, either to all or to any individual.
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Old 04-07-2020, 05:54 PM
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..
My point of discussion in this thread, given that armed guards are impractical for most people, is what else acts as notification that such implied consent is revoked? And I would think that if I have expressly told Dr. Deth that if he is simply coming to my house to find criminal activity (a snitch) and he does so with the intent of being a snitch, then he has been put on notice that his implied license to come has been revoked....
No, just a sign doesnt do it. Generally, a HOA cant arrest solicitors, nor does a NO Soliciting sing on your property mean a salesman is trespassing.

Read this letter from the Police on that:

https://nextdoor.com/agency-post/nc/...igns-24485108/

Now, in some areas, yes, just a sign will keep Solicitors out, due to local regulations. But those are special cases. And in fact, even so, they wont keep Religious Solicitors out- the Adventist or Mormons have a right to proselytize. You have a right to tell them to fuck off and go to hell, if that's what you wish.

In Jardines, the Police brought in a special tool (a dog) which is what caused SCOTUS to burp. If the police had just seen the hemp thru a window, it would have been fine. Of course we also now know that the drug sniffing dog is worthless for probable cause as the handler can have the dog signal anytime the handler chooses.

So, it's pretty much ALL or none, and ALL means- as has been explained- some sort of barrier, and a Sign. Neither holds water by themselves.

If you are poor or renting, perhaps you should not use your house as a meth lab. You dont have the right to use your house as a meth lab.
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Old 04-09-2020, 10:53 PM
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And that is an excellent point. It would seem that no sign is required because although I allow solicitors to come to the front door, knock on it or ring the doorbell, and attempt to communicate with me, and I allow friends to come into my house because they are friends, this implied license does not extend to "people who are pretending to be friends but have the ultimate purpose of reporting what they see and hear to law enforcement." Even if I invite them in, they are gaining entrance through fraud which activates the doctrine of trespass ab initio.

Just as the implied license does not extend to police with a drug sniffing dog, it should equally not extend to people who are coming to my house with the intent to gather evidence in a criminal trial.
The fact is that in spite of saying clearly that you didn't want to, you did sell the drugs in your home to a snitch. Those were actions you took, and aren't mistakes you make in a different class to things that happen to you without your involvement?
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Old 04-10-2020, 05:49 AM
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No, just a sign doesnt do it. Generally, a HOA cant arrest solicitors, nor does a NO Soliciting sing on your property mean a salesman is trespassing.

Read this letter from the Police on that:

https://nextdoor.com/agency-post/nc/...igns-24485108/

Now, in some areas, yes, just a sign will keep Solicitors out, due to local regulations. But those are special cases. And in fact, even so, they wont keep Religious Solicitors out- the Adventist or Mormons have a right to proselytize. You have a right to tell them to fuck off and go to hell, if that's what you wish.

In Jardines, the Police brought in a special tool (a dog) which is what caused SCOTUS to burp. If the police had just seen the hemp thru a window, it would have been fine. Of course we also now know that the drug sniffing dog is worthless for probable cause as the handler can have the dog signal anytime the handler chooses.

So, it's pretty much ALL or none, and ALL means- as has been explained- some sort of barrier, and a Sign. Neither holds water by themselves.

If you are poor or renting, perhaps you should not use your house as a meth lab. You dont have the right to use your house as a meth lab.
Whether the police will arrest someone for trespassing does not answer the question of whether they are trespassing. Trespassing is generally a civil tort backed up in limited circumstances by criminal laws.

And again, this isn't about a strawman right to sell drugs in my house. Everyone agrees you cannot do that. What is the legal right is the basic right of private property ownership: the right to exclude others. To stop drug selling in homes, we do what we do in a free society, we have the police get probable cause and a search warrant, not trespass onto peoples' property to gather evidence. That applies to both poor and rich people.

And if you are on a jury and a person testifies that they saw a "No Solicitors" sign and decided "Fuck it, I am going to go solicit anyways" would you not find that they entered the property against the owner's wishes, i.e. trespassed?
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Old 04-10-2020, 11:43 AM
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To add, although my question is general, the specific facts of the case are that the defendant, in the prior six months had told all of his friends that if they were ever "snitches" they were not welcome in his home.

Well, one of those people got popped and started working for the police. That person then entered his home and allegedly bought drugs from him in his home. That person will testify that the defendant stated that snitches were not welcome in his home.

Consistent with current case law, did the defendant's admonition that no "snitches" were welcome in his home give notice to that person that entry was unauthorized and make it a trespass, one directed by the state?
First, I’m hoping this is a theoretical discussion and that you don’t intend to actually go into court and make this argument in front of a judge. If you are, please send me the date, time and other details. I’d really like to see that.

First, it sounds like “he said , he said”. We have only the word of your client, and possibly his criminal associates, that your client put everyone on notice that snitches weren’t welcome in his home. That does not rise to the level of a sign. Maybe your client should’ve put up a sign on the porch that said “People that are going to rat me out to the cops for dealing drugs are not welcome on these premises.” That might hold more legal weight, but it would probably cause more problems than it solves.

Let’s say I tell my boyfriend that if he ever comes near that skank that used to be his side piece again he isn’t welcome in my home. He comes home one night, I smell her dollar store perfume on him and I shoot him. Could I make a legal argument that I shot a trespasser?

So, I don’t think a casual statement like “snitches aren’t welcome in my home” ( which should go without saying, anyway) has any force as legal notice, especially in a criminal matter.

Second, I think there might be some sort of “clean hands” doctrine that negates any legal force your argument might have. I don’t think you can require a person to agree to do something illegal, like perjure themselves to the cops, in exchange for the legal right to be on your property.
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Old 04-10-2020, 11:47 AM
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...

And if you are on a jury and a person testifies that they saw a "No Solicitors" sign and decided "Fuck it, I am going to go solicit anyways" would you not find that they entered the property against the owner's wishes, i.e. trespassed?
Nope. Not unless that salesperson went over a fence or some other barrier.

Look, signs like "Cops are not allowed" would be just as useful as asking a undercover narc "Are you a cop?".
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Old 04-11-2020, 02:17 AM
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First, I’m hoping this is a theoretical discussion and that you don’t intend to actually go into court and make this argument in front of a judge. If you are, please send me the date, time and other details. I’d really like to see that.

First, it sounds like “he said , he said”. We have only the word of your client, and possibly his criminal associates, that your client put everyone on notice that snitches weren’t welcome in his home. That does not rise to the level of a sign. Maybe your client should’ve put up a sign on the porch that said “People that are going to rat me out to the cops for dealing drugs are not welcome on these premises.” That might hold more legal weight, but it would probably cause more problems than it solves.

Let’s say I tell my boyfriend that if he ever comes near that skank that used to be his side piece again he isn’t welcome in my home. He comes home one night, I smell her dollar store perfume on him and I shoot him. Could I make a legal argument that I shot a trespasser?

So, I don’t think a casual statement like “snitches aren’t welcome in my home” ( which should go without saying, anyway) has any force as legal notice, especially in a criminal matter.

Second, I think there might be some sort of “clean hands” doctrine that negates any legal force your argument might have. I don’t think you can require a person to agree to do something illegal, like perjure themselves to the cops, in exchange for the legal right to be on your property.
1) The snitch will testify that my client said that.

2) You cannot shoot any trespasser unless you are in reasonable fear of death or bodily harm. Your boyfriend cheating, although emotionally harmful, does not put you in fear of death or bodily harm. Although if you told him that, I would think he is trespassing. Please cite a case where you believe he is not. You gave him conditional admission to your property, he refused the condition, and entered anyways. It is not criminal trespass, but certainly civil.

3) You are not requiring a person to do something illegal in exchange for entry to your property. There is nothing illegal about not reporting a crime, especially one that they engaged in as a ruse to incriminate you. The person is free to disavow themself of the previously enjoyed privilege to enter your property. And you are right. "It goes without saying." So why would the snitch believe that you would consent to entry upon your property for that purpose?

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Originally Posted by DrDeth View Post
Nope. Not unless that salesperson went over a fence or some other barrier.

Look, signs like "Cops are not allowed" would be just as useful as asking a undercover narc "Are you a cop?".
1) You are all about fences. Trespass law in tort does not require a fence. Just notice that the entry on your property is forbidden. You think a guy that got caught shoplifting at WalMart and given a trespass notice could go back and say, "But there is no fence here!"

2) Asking a person "Are you a cop?" and have them lie to you by saying "No" is not a trespass upon your "persons, papers, houses, and effects" as stated in the Fourth Amendment. A person trespassing on your property after you have given express directives that they not enter your property is a violation of that Amendment.
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Old 04-11-2020, 07:51 AM
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Isn't there something known as "The Judas Exception" when it comes to expectation of privacy? In other words, if you trusted someone who betrays you, too bad. You shouldn't have trusted them.
  #31  
Old 04-11-2020, 08:21 AM
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Originally Posted by UltraVires View Post
1) The snitch will testify that my client said that.

2) You cannot shoot any trespasser unless you are in reasonable fear of death or bodily harm. Your boyfriend cheating, although emotionally harmful, does not put you in fear of death or bodily harm. Although if you told him that, I would think he is trespassing. Please cite a case where you believe he is not. You gave him conditional admission to your property, he refused the condition, and entered anyways. It is not criminal trespass, but certainly civil.
Of course she can't shoot him - but if you believe it's civil trespass, why isn't it criminal trespass? If telling him he's only welcome under certain conditions is sufficient notice to make it civil trespass, why isn't it enough for a criminal charge?




Quote:
1) You are all about fences. Trespass law in tort does not require a fence. Just notice that the entry on your property is forbidden. You think a guy that got caught shoplifting at WalMart and given a trespass notice could go back and say, "But there is no fence here!"
Why does Walmart (or any other place) have to issue a trespass notice to begin with? Why can't they post a sign simply saying shoplifters aren't permitted to enter ? And once Walmart posts such a sign, why can't the police charge shoplifters with criminal trespass in addition to whatever charge covers the shoplifting?
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Old 04-11-2020, 12:24 PM
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Originally Posted by UltraVires View Post
...


1) You are all about fences. Trespass law in tort does not require a fence. Just notice that the entry on your property is forbidden. You think a guy that got caught shoplifting at WalMart and given a trespass notice could go back and say, "But there is no fence here!"

2) Asking a person "Are you a cop?" and have them lie to you by saying "No" is not a trespass upon your "persons, papers, houses, and effects" as stated in the Fourth Amendment. A person trespassing on your property after you have given express directives that they not enter your property is a violation of that Amendment.
It requires a notice- and a clear line. In your Walmart case, you have a "fence"- they have a door. Also he was personally given notice. Just a sign generally isnt good enough. and it certainly wouldn't stop a police officer if it said "No cops can trespass".

So, no, a sign saying "No cops allowed" wouldnt protect you.
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Old 04-11-2020, 12:27 PM
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...



Why does Walmart (or any other place) have to issue a trespass notice to begin with? Why can't they post a sign simply saying shoplifters aren't permitted to enter ? And once Walmart posts such a sign, why can't the police charge shoplifters with criminal trespass in addition to whatever charge covers the shoplifting?
Yep. That's why such signs wont work.
  #34  
Old 04-11-2020, 02:14 PM
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Originally Posted by doreen View Post
Why does Walmart (or any other place) have to issue a trespass notice to begin with? Why can't they post a sign simply saying shoplifters aren't permitted to enter ? And once Walmart posts such a sign, why can't the police charge shoplifters with criminal trespass in addition to whatever charge covers the shoplifting?
The problem with that is that the shoplifter will argue that they did not have the intent to shoplift when they entered, that they did it on an impulse, and there is no evidence to prove otherwise.

But, yes, when they can prove it, they do charge it. There is a Supreme Court case around here where a shoplifter left the store, took items to his car, went back in and shoplifted again and got caught. As it was pretty clear that he entered the second time with intent, he got nailed for daytime burglary.

However, my larger point still stands. You have an implied license to go into Wal Mart to browse the items that they have for sale and to buy one or more of them if you agree with the posted price. That's it. Of course it is trespassing if you enter their store when it is closed or for the purposes of stealing their items. That is outside of your implied license to enter.

Would a reasonable person believe that Wal Mart would allow them on their property to steal? If not, the person is trespassing. Why wouldn't it be trespassing, with or without a sign?
  #35  
Old 04-11-2020, 02:28 PM
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It requires a notice- and a clear line. In your Walmart case, you have a "fence"- they have a door. Also he was personally given notice. Just a sign generally isnt good enough. and it certainly wouldn't stop a police officer if it said "No cops can trespass".

So, no, a sign saying "No cops allowed" wouldnt protect you.
You agree that as a private property owner I have the ability to exclude anyone I want to, correct? I can exclude cops if I want to--assuming that they do not have a valid search warrant or meet one of the several exceptions to the warrant requirement.

If I have that ability to exclude then there must be some meaningful way to assert that ability, and there must be an equally valid way for the poor to assert that ability. And further, I do not see how a giant sign that says "No Cops Allowed" fails to put any police officer on notice that I am excluding him.

And even with a fence, if a "snitch" gains entrance to my house through fraud, e.g. he is pretending to be my friend yet secretly working for law enforcement, then that is also a trespass even though I opened the door and invited him in. No fence in the world will keep him out.
  #36  
Old 04-11-2020, 04:06 PM
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Of course she can't shoot him - but if you believe it's civil trespass, why isn't it criminal trespass? If telling him he's only welcome under certain conditions is sufficient notice to make it civil trespass, why isn't it enough for a criminal charge?
Sorry, I failed to respond to this one. There are several reasons. Criminal trespass is defined by law and is much more lenient that the civil tort. It generally requires a written notice to be formally served on a party with a follow up entry and creates many safeguards, or it requires an entry in unmistakeable situations (e.g. I beat down a stranger's door and sit on their couch and claim that I didn't know the owner didn't want me to do that).

Further, did can she prove she told the boyfriend that? And was it stated in an absolute way? If my wife tells me I will be in the doghouse if I don't clean the gutters, do I actually think that she will make me literally sleep in the doghouse?

Also, for as much as I bitch about prosecutors, they are not tyrants. There is no interest in the state arresting people over a relationship dispute because one party cheated. If you want him out of your house, we will serve him with this formal trespass notice and if he comes back he will be arrested, but we simply are not going to arrest him because he came over to your house after he violated a condition of entry, even if it does literally comply with the law. We aren't filling up our jails with cheating boyfriends.

But my main point is that it is a false comparison to say that because the police will not arrest you for X that means that X is not trespassing.
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Old 04-11-2020, 05:09 PM
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You agree that as a private property owner I have the ability to exclude anyone I want to, correct? I can exclude cops if I want to--assuming that they do not have a valid search warrant or meet one of the several exceptions to the warrant requirement.

If I have that ability to exclude then there must be some meaningful way to assert that ability, and there must be an equally valid way for the poor to assert that ability. And further, I do not see how a giant sign that says "No Cops Allowed" fails to put any police officer on notice that I am excluding him.....
Sure, by a fence. Or gate.

or telling individuals in person and giving them notice.

But sorry, try asking a cop or a lawyer about your "no cops allowed" sign- they need a good laugh.
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Old 04-11-2020, 05:46 PM
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Sure, by a fence. Or gate.

or telling individuals in person and giving them notice.

But sorry, try asking a cop or a lawyer about your "no cops allowed" sign- they need a good laugh.
I am a criminal defense lawyer and I fail to see why a police officer would not be trespassing if he sees a "No Cops Allowed" sign on my driveway yet continues past it anyways (again assuming no warrant or exception to the warrant requirement). I could see there being an argument if he didn't see it because it was obscured by a tree or by brush, but assuming he saw it, why is that not good notice to him that he is not welcome?

You keep asserting how silly it is, but I have seen no case law that says why. And Jardines seems to hold that the implied license does not extend to police investigations in general. If the implied license does not extend to a police officer with a drug sniffing dog, because it can be assumed that a homeowner would not allow that, then why couldn't it be assumed that a homeowner would equally object to a knock and talk when the homeowner is a suspect?

What Hamlet provided above was a summary of cases that said a simple "No Trespassing" sign did not put the police or other casual visitors on notice because it is ambiguous. It is not clear if I am a Mormon and approaching the house that I would be trespassing if I came on the property, so that court held that a simple No Trespassing sign was not enough. However, the converse of the holding seems to imply that if the sign was more definite, that it would be effective notice to the police.
  #39  
Old 04-11-2020, 11:08 PM
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You keep asserting how silly it is, but I have seen no case law that says why. And Jardines seems to hold that the implied license does not extend to police investigations in general. If the implied license does not extend to a police officer with a drug sniffing dog, because it can be assumed that a homeowner would not allow that, then why couldn't it be assumed that a homeowner would equally object to a knock and talk when the homeowner is a suspect?
That's not the interpretation I had. My understanding is that Jardines allows police officers to approach a person's house for the purpose of conducting a "knock and talk" because most homeowners allow the average person to approach their house for similar purposes. The Jardines decision ruled the police using a drug-sniffing dog on your property was no allowed because that's not a purpose for which an average person would approach your house.

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“A license may be implied from the habits of the country,” notwithstanding the “strict rule of the English common law as to entry upon a close.” McKee v. Gratz, 260 U. S. 127, 136 (1922) (Holmes, J.). 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.” Breard v. Alexandria, 341 U. S. 622, 626 (1951) . 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. [ 2 ] 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.” Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 16).

But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. [ 3 ] To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.

Last edited by Little Nemo; 04-11-2020 at 11:11 PM.
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Old 04-12-2020, 08:08 AM
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"No persons who are working for law enforcement in any capacity, or have the intention of reporting what they see or hear inside these premises, are permitted entry on these premises. Any implied license to enter for these purposes is hereby expressly revoked"?
If I'm the prosecutor, I might take a different approach. I would argue that the informant was not "working for law enforcement in any capacity". The informant was a volunteer working for himself, and solely for his own interests. I would dig up case law in your jurisdiction to show how volunteers and private contractors are not workers. I would explicitly call attention to the differences between "working for" and "working with".
The informant did not report what he saw, and did not report what he heard. He merely reported what he did. Reporting that he exchanged money for drugs inside the house does not involve reporting on sights and sounds. I'll have to figure out an argument to counter the fact that you will no doubt bring up the question of identifying who he actually bought the drugs from, since that entails reporting what he "saw". That's going to depend on how many people were also there. If it was just the informant and your defendant in the home, then that will be easy for me. Especially if he is the only resident of the home, and/or he invited him over for the deal at a particular time. He can report on what he heard prior to being in the home. So if the defendant said "Come over right now for a drug deal", and then the informant goes to the home to do the deal, I think that should be sufficient bona fides without being able to say, "I saw him specifically hand me the drugs".
Also, was the informant wearing a wire? If so, that makes the whole thing moot because he doesn't neat to report on what he heard. The recording will do that.

Last edited by Bear_Nenno; 04-12-2020 at 08:12 AM.
  #41  
Old 04-13-2020, 12:27 PM
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To add, although my question is general, the specific facts of the case are that the defendant, in the prior six months had told all of his friends that if they were ever "snitches" they were not welcome in his home.

Well, one of those people got popped and started working for the police. That person then entered his home and allegedly bought drugs from him in his home. That person will testify that the defendant stated that snitches were not welcome in his home.

Consistent with current case law, did the defendant's admonition that no "snitches" were welcome in his home give notice to that person that entry was unauthorized and make it a trespass, one directed by the state?
Trespess ab initio applies to civil tort law and cannot sustain the exclusion of evidence in a criminal setting. On Lee v. United States, 343 U.S. 747, 752 (1952); see also McGuire v. United States, 273 U.S. 95 (1926). There's plenty of other cites: Hoffa v. United States, 385 U.S. 293 (1966); Lewis v. United States, 385 U.S. 206 (1966); United States v. White, 401 U.S. 745 (1971); etc.

Now, if your client had already been indicted on drug trafficking and retained you as an attorney, you might be able to raise a sixth amendment defense. Massiah v. United States, 377 U.S. 201 (1964); United States v. Henry, 447 U.S. 264 (1980).

You might have better luck with a standard entrapment defense...

~Max
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Old 04-13-2020, 01:01 PM
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Trespess ab initio applies to civil tort law and cannot sustain the exclusion of evidence in a criminal setting.
Also, I don't see why this would change in light of Jardines. The use of a trained narcotics detection dog to sustain probable cause is analogous to the use of a radio tranceiver to sustain probable cause. If Jardines had invited the dog into the house, he would be waiving his Fourth Amendment rights, even if unaware of the dog's nature. Likewise, if your client invited an informer into his house, the government may use evidence gathered from a radio tranceiver on said informer.

~Max
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Old 04-16-2020, 12:28 PM
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To add, although my question is general, the specific facts of the case are that the defendant, in the prior six months had told all of his friends that if they were ever "snitches" they were not welcome in his home.

Well, one of those people got popped and started working for the police. That person then entered his home and allegedly bought drugs from him in his home. That person will testify that the defendant stated that snitches were not welcome in his home.

Consistent with current case law, did the defendant's admonition that no "snitches" were welcome in his home give notice to that person that entry was unauthorized and make it a trespass, one directed by the state?
You would think that among the thousands of lawyers employed by organized crime throughout the decades, one would have used this defense if it was in any conceivable way valid.
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Old 04-16-2020, 12:58 PM
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That's not the interpretation I had. My understanding is that Jardines allows police officers to approach a person's house for the purpose of conducting a "knock and talk" because most homeowners allow the average person to approach their house for similar purposes. The Jardines decision ruled the police using a drug-sniffing dog on your property was no allowed because that's not a purpose for which an average person would approach your house.
This is basically how I've understood Jardines.

That is, the idea is not that there is a (revocable) implied license for police officers to approach our homes. But that there is (in some abstract sense) an implied license for "the public" (whether girl scouts or mailmen or vacuum salespeople) to walk up to our door and knock. And, we say, it's not a "search" for Fourth Amendment purposes when the police do that which the public may do.

It isn't really a question of trespass (presumably if you have a sign that says "no police, girls scouts, or roofers," then you've removed a subset of the public from the general license), it's a question of Fourth Amendment protections and what we're willing to tolerate from government agents.

To me, Jardines is an extension of the cases that recognize, for example, that you can't walk up to the front door after running around the the backyard first or that you can't look under tarps, etc., on your way there. It's not that the police cannot do it, so much as the general "public license" (that we allow the police to take advantage of) doesn't extend to those actions -- no girl scouts in the backyard. Apparently a dog falls within that rule.

To be sure, there is some weird language in Jardines (for example: "that depends upon whether the officers had an implied license to enter the porch, which in turn depends upon the purpose for which they entered"). I would read that in light of the scope of the public license ("the background social norms that invite a visitor to the front door do not invite him there to conduct a search") rather than the idea that you can limit the license to omit law enforcement obligations. (Footnote 4 seems to say that as well).
  #45  
Old 04-26-2020, 01:11 AM
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How's this? The owner excludes or welcomes people, not characteristics. Thinking about the sign cases, if the owner of a house had a big scary sign that said No Trespassers, but when the police showed up he said 'C,mon in, fellas', the sign would be of no consequence - he would have waived its effect.

There is no doubt that your client actually allowed snitch on client's premises at all relevant times. Let us accept that there can be no such thing as ex post facto trespass/refusal of entry. I welcome my son-in-law into my home on Saturday, but when I find out on Monday he is cheating on my daughter, I purport to revoke his welcome on Saturday, and try to prosecute him for trespass. Obviously, such a claim will fail. If we accept that there is no such thing as ex post facto refusal of permission to enter, then the test for who does not have permission must be determinable 1) at the time of entry, 2)by the property owner. Your error is in thinking that because the snitch knew of his characteristic, that triggers a exclusion. But it can't if the owner did not know about it, and actually welcomed him in.

Shortly put, you can't set up a rule for exclusion on the part of the owner that can only be actioned by the owner after the event. It's not a valid 'rule', because the person who needs to action it, at the time he needs to do so (the time of entry) can't. Such a 'rule' is not bad for vagueness, as others have accepted, but bad for indeterminability. Such a rule would be impossibly contradictory. I could purport to happily welcome someone into my home (indeed, actually welcome them), and simultaneously refuse them entry. Since permission to enter must come from the owner, then the owner must decide at the time of entry whether someone is welcome. Any other rule is impossible of operation.

The case is quite different from the sign cases, like Sullivan. They do not deal with the situation you are positing, that is the simultaneous approval/disapproval of entry you are trying to conjure here.
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