OH5: Knock-and-talk doesn’t permit entry into backyard, too

Knock-and-talk is a legitimate law enforcement technique, but other officers fanning out to enter the backyard, the curtilage, at the same time is not. The observations in the backyard lead to suppression of the search. State v. Morgan, 2014-Ohio-1900, 2014 Ohio App. LEXIS 1854 (5th Dist. May 1, 2014):

[*P31] In the instant case, while the knock and talk was taking place, other members of the SCRAP Unit entered onto the curtilage of appellant’s property. It was this entry which allowed officers to observe the marijuana and from which the rest of their investigative steps arose, including entry into appellant’s residence and request for a search warrant.

[*P32] The question, therefore, is whether the officers were lawfully in a position to view the marijuana plants on the rear elevated deck, thus setting into motion the remaining events resulting ultimately in the execution of a search warrant. We conclude they were not.

[*P33] The state is prohibited from making unreasonable intrusions into areas where people have legitimate expectations of privacy without a search warrant, including a person’s home and the curtilage surrounding it. State v. Vondenhuevel, 3rd Dist. Logan 8-04-15, 2004-Ohio-5348, ¶ 10. The curtilage is considered part of the home itself for Fourth Amendment purposes.

[*P34] The elevated rear deck is in the curtilage of the property.”The curtilage is an area around a person’s home upon which he or she may reasonably expect the sanctity and privacy of the home. For Fourth Amendment purposes, the curtilage is considered part of the home itself.” Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The only areas of the curtilage where officers may lawfully go are those impliedly open to the public, including walkways, driveways, or access routes to the residence. State v. Cook, 5th Dist. Muskingum Nos. 2010-CA-40, 2010-CA-41, 2011-Ohio-1776, ¶ 65, citing State v. Birdsall, 6th Dist. Williams No. WM-09-016, 2010-Ohio-2382, ¶ 13.

[*P35] Because the curtilage of a property is considered to be part of a person’s home, the right of the police to come into the curtilage is highly circumscribed. State v. Woljevach, 160 Ohio App.3d 757, 2005-Ohio-2085, 828 N.E.2d 1015, at ¶ 29. Absent a warrant, police have no greater rights on another’s property than any other visitor has. Id.

[*P36] The photos in this case are dispositive; the officers could not have seen the marijuana had they not entered appellant’s back yard, an area which is part of the curtilage of the residence. This is not a case of officers entering where they may lawfully be present to ask questions of a citizen. The front door of the residence is the means of ingress and egress. A “no trespassing” sign is posted in the front window. The front sidewalk also leads to a door at the side of the house from which the elevated rear deck is not visible. Exhibits B and C demonstrate the elevated rear deck is not visible from the front of the property. The rear deck is only visible from the rear of appellant’s property.