“No Trespassing” signs used to be not determinative of curtilage. It’s apparent they are becoming so. Here, the defendant had a cable across the driveway, a “No Trespassing” sign, and a surveillance camera. The police were not in hot pursuit and had no exigency for an entry just to question him about a theft offense even though they knew he was soon leaving for Florida. The observations made were used for a search warrant, and the product of the search warrant is suppressed. Mundy v. State, 2014 Ind. App. LEXIS 566 (November 19, 2014). This discussion about curtilage is worth reading:
B. Degree of Intrusion
Here, it is the degree of intrusion that is most troubling about the actions of the police at issue in this appeal. When the police drove several yards up the drive they encountered what can only be described as a sign that strangers were not welcome. A cable blocked the drive—a clear indication that the occupants of the land did not desire unknown vehicles to drive further onto the property. There was also a home-security sign posted near the cable and a security camera on a nearby tree. Again, these are not exactly indications that visitors are welcome. And even though it was not noticed by the detectives, we cannot overlook the fact that there was also a “No Trespassing” sign posted on a tree just beyond the cable.
Under these circumstances, a reasonable person would not feel welcome to take down the cable without permission and continue to drive onto the property. Indeed, a person who, not having a contractual interest in the property, knowingly enters the real property of another person after having been denied entry by the other person commits criminal trespass. See Ind. Code § 35-43-2-2(b)(1). And a person may be “denied entry” by oral or written communication, court order, or by “posting or exhibiting a notice at the main entrance in a manner that is … likely to come to the attention of the public.” I.C. § 35-43-2-2(c). Based upon the evidence presented at the suppression hearing, it appears that the cable, the camera, and the signs posted here were likely to come to the attention of the public. But even if the intrusion of the detectives was not committed knowingly for purposes of the criminal trespass statute, we cannot say that the nature of their intrusion supports a determination that their conduct was reasonable.
In this sense, we find this case is distinguishable from Baxter v. State, 891 N.E.2d 110 (Ind. Ct. App. 2008), which the trial court relied upon. In that case, the court rejected the defendant’s claim that a “no trespassing” sign rendered the actions of the police unreasonable under Article 1, Section 11. Id. at 119. However, in Baxter, there appears to have been no evidence of the sign other than the defendant’s testimony. See id. (referring to defendant’s “claim” that there was a no trespassing sign and noting that the police denied seeing such a sign). Here, even though the officers denied seeing the no trespassing sign, there was photographic evidence that the sign was located near the cable.
More importantly, however, in Baxter, the police stayed on a path “that any regular visitor would take.” Id. And the court held that police should not be thwarted from ever approaching a home along paths that regular visitors would take simply by the posting of a no trespassing sign. Id. Here, however, the police did not simply walk to the front door of a residence along paths that normal visitors would take. To the contrary, the presence of the cable, the signage, and the security camera would make a reasonable person feel distinctly unwelcome. Indeed, Mundy testified that unexpected visitors were not welcome to, and had not taken down the cable and that even expected guests called ahead to make sure that the “gate” was unlocked. Tr. p. 98.
C. The Extent of Law Enforcement Needs
Lastly, we consider the extent of law enforcement needs. To be sure, Douthitt’s boss had told them that Douthitt had indicated that he planned to move to Florida quickly and would not be returning to work. But as noted by the Defendants, the police were simply looking to talk to an individual who they thought might have been involved with the theft of a handgun and who might be at that address. Although the detectives were undoubtedly investigating serious crimes, there is no indication that there were any circumstances, such as a hot pursuit, that would justify their intrusion. Cf. Holder v. State, 847 N.E.2d 930, 940-41 (Ind. 2006) (holding that warrantless entry into home was justified by exigent circumstances where large amounts of ether fumes were emanating from the home and the occupants of the home included a child); Carpenter v. State, 974 N.E.2d 569, 575 (Ind. Ct. App. 2012) (holding that extent of law enforcement needs was only “moderate” even where the officers had a warrant to arrest someone they believed to be at the home).
D. The Totality of the Circumstances
Under the totality of the circumstances presented here, we cannot say that the State met its burden of establishing that the actions of the detectives in this case were reasonable. Accordingly, we hold that the detectives’ conduct violated Article 1, Section 11 of the Indiana Constitution. The subsequent search warrant was based on information known to the detectives only as a result of their violation of Article 1, Section 11.
. . .
We therefore conclude that the actions of the detectives in the present case were unreasonable and that the warrant to search Stam’s property was thus based on information gathered unconstitutionally and should not have been issued. See Sanchez v. State, 803 N.E.2d 215, 221 (Ind. Ct. App. 2004) (noting that “fruit of the poisonous tree” doctrine bars evidence directly obtained and evidence derivatively gained as a result of information learned or leads obtained during an unlawful search of seizure); Gyamfi v. State, 15 N.E.3d 1131, 1138 (Ind. Ct. App. 2014) (applying fruit of the poisonous tree doctrine to Article 1, Section 11 claim).
