NC: When nobody answers door and apparently nobody home, going to back door because of barking dog violated curtilage

When officers doing a knock-and-talk get no answer at the front door and there’s no car in the driveway and no signs anybody’s home, they can’t go to the back door to see if the barking dog they heard belonged to the house. They violated curtilage to smell the marijuana. State v. Gentile, 2014 N.C. App. LEXIS 1149 (November 18, 2014):

Here, the detectives had far exceeded the scope of their right to generally inquire about the information received from the anonymous tip at the time they smelled the marijuana. When the detectives initially reached the house, they knocked on the front door for a “couple [of] minutes” but received no human response. They only proceeded to the back of the house because they heard barking dogs, and believed that an occupant might not have heard the knocks. However, the detectives could not determine from which direction the dogs were barking. There was no evidence of any vehicles on the property, persons present, lights illuminated in the residence, or furniture in the house, and the detectives believed that no one resided there. Accordingly, the sound of barking dogs, alone, was not sufficient to support the detectives’ decision to enter the curtilage of defendant’s property by walking into the back yard of the home and the area on the driveway within ten feet of the garage. See Florida v. Jardines, __ U.S. __, __, 185 L. Ed. 2d 495 (2013) (noting that a law enforcement officer without a search warrant may merely “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave”).

As a result, when the detectives smelled the odor of marijuana, their purported general inquiry about the information received from the anonymous tip was in fact a trespassory invasion of defendant’s curtilage, and they had no legal right to be in that location. Accordingly, the subsequent search of the residence based, in part, on the odor of marijuana was unlawful. Thus, the trial court did not err by granting defendant’s motion to suppress.