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 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?
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?
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.
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.
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.
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.”
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“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.”
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.”
“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.
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.
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.
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.
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.
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.
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.
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.