Alaska State Troopers creeped down defendant’s driveway in a police car to the front of her house at midnight for a “trooper sniff,” smelling marijuana. This entry onto the curtilage was even more intrusive than Jardines because it was at night. The entry was unreasonable, and the resulting search warrant should have been suppressed. Kelley v. State, 2015 Alas. App. LEXIS 48 (April 10, 2015):
Shortly after midnight, acting on an anonymous tip, two Alaska state troopers drove up Margaret A. Kelley’s driveway to her residence in Willow, Alaska, rolled down the windows of their idling patrol car, and sniffed the air. After detecting the odor of marijuana, the troopers obtained a warrant to search Kelley’s home. During that search they discovered and seized evidence of a commercial marijuana grow.
For the reasons explained here, we conclude that the troopers had no legal right to approach Kelley’s home at that time of night, in the manner that they did, to gather evidence of a marijuana grow. Kelley is therefore entitled to suppression of the evidence obtained as a result of this illegal search.
. . .
In Jardines, the United States Supreme Court recognized that a police officer has an implicit license to approach a home without a warrant and knock on the front door because this is “no more than any private citizen might do.” But the Supreme Court also recognized that the scope of this implicit license is limited not only to the normal paths of ingress and egress, but also by the manner of the visit. As the Court explained, “[t]o 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.”
Thus, in the majority opinion in Jardines, the Supreme Court concluded that the police did not have an implicit license to walk uninvited onto the front porch of a home with a drug-sniffing dog, and the Court therefore upheld the Florida Supreme Court’s decision suppressing the evidence obtained as a result of that search.
The case before us involves a trooper sniff, not a dog sniff, and the troopers stayed in their car rather than stepping up onto the porch. But, in another respect, the search in this case was more intrusive than the search in Jardines, because it took place after midnight.
Although a late-night search was not before the Court in Jardines, both the majority and the dissent in Jardines were in agreement that there were clear temporal limits on the implied license for public access to a private residence. As Justice Alito noted in the dissent, a visitor may not “come to the front door in the middle of the night without an express invitation”; indeed, such a late-night intrusion “could be cause for great alarm.” The majority referred approvingly to the dissent’s “no-night-visits rule,” noting that “the typical person would find it ‘a cause for great alarm’ (the kind of reaction the dissent quite rightly relies upon to justify its no-night-visits rule…) to find a stranger snooping about his front porch with or without a dog.”
Before and after Jardines, courts in other jurisdictions have similarly condemned late-night police incursions onto private property, holding that they are generally outside the scope of the implied license for public access.14
14. See, e.g., United States v. Lundin, ___ F. Supp. 2d ___, 2014 WL 2918102, at *6 (N.D. Cal. 2014) (“[T]he implied license to visit is generally understood to extend during daylight hours.”); State v. Cada, 923 P.2d 469, 478 (Idaho App. 1996) (police officers’ nighttime intrusion “exceeded the scope of any implied invitation to ordinary visitors and was not conduct to be expected of a reasonably respectful citizen”); People v. Burns, ___ N.E.3d ___, 2015 WL 404355, at *8 (Ill. App. Jan. 30, 2015) (condemning warrantless use of drug detection dog to sniff apartment front door at 3:20 a.m.); Commonwealth v. Ousley, 393 S.W.3d 15, 31 (Ky. 2013) (midnight intrusion by police on homeowner’s driveway unconstitutional because “[a]bsent an emergency, such as the need to use a phone to dial 911, no reasonable person would expect the public at his door at [that] time”); State v. Ross, 4 P.3d 130, 136 (Wash. 2000) (suppressing evidence where police used driveway to enter property at 12:10 a.m. to search for evidence of marijuana grow, with no intention of contacting defendant); State v. Johnson, 879 P.2d 984, 991-93 (Wash. App. 1994) (noting that danger of “violent confrontation”considerably heightened during 1:00 a.m. intrusion).
. . .
Here, the record shows (and the State does not dispute), that the troopers entered the constitutionally protected curtilage of Kelley’s home when they drove down her private driveway and parked their car directly in front of Kelley’s home. The record also shows (and again, the State does not dispute), that the purpose of this midnight visit was to gather evidence related to the anonymous tip that Kelley was growing marijuana to sell.
There is no allegation that the troopers had prearranged business with Kelley, that they were expecting or intending to have direct contact with her, or that any exigency existed that otherwise justified their conduct. Nor is there any evidence that Kelley impliedly consented to the arrival of visitors after midnight — by, for instance, operating a night-time business from her home or hosting a large, late-night social gathering. Indeed, the State has articulated no reason to justify the troopers’ decision to conduct this investigation after midnight instead of during the day, when the investigation would have accorded with the conduct of a respectful citizen and well settled law.