TN: A “no trespassing” sign outside the yard does not prevent police from coming in to do a knock-and-talk

A “no trespassing” sign outside the yard does not prevent police from coming in to do a knock-and-talk. “Even in the face of No Trespassing signs, it is not unreasonable for a police officer to intrude upon private property to ask if the resident has any information that will aid in the investigation of a crime.” State v. Christensen, 2015 Tenn. Crim. App. LEXIS 357 (May 14, 2015) (dissent):

Notably, the federal district court in the Eastern District of Tennessee recently ruled that a “no trespassing” sign did not prevent officers from conducting a “knock and talk.” United States v. Denim, No. 2:13-CR-63, 2013 WL 4591469, at *4 (E.D. Tenn. Aug. 28, 2013). The Denim court reasoned as follows:

As sacred as the home is, including its curtilage, society is not willing to accept as reasonable an expectation that a police officer may not come within the curtilage to question a resident of a dwelling to ascertain if that resident has information regarding the commission of a criminal offense. Even in the face of No Trespassing signs, it is not unreasonable for a police officer to intrude upon private property to ask if the resident has any information that will aid in the investigation of a crime.

Id. The Sixth Circuit has also held that a “no trespassing” sign was of no consequence when the police were conducting a “knock and talk.” See United States v. Hopper, 58 F. App’x 619, 623 (6th Cir. 2003). The Sixth Circuit reasoned that “no trespassing” signs did not extend the curtilage of the defendant’s residence and that even if the signs had extended the curtilage, “the actions of the police in this case would not have violated the Fourth Amendment because law enforcement officials may encroach upon the curtilage of a home for the purpose of asking questions of the occupants.” Id. We find the reasoning in these cases to be persuasive. See Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968) (holding that federal search and seizure cases should be considered persuasive authority in Tennessee).

We have also examined cases from other federal circuits and states. Some states have held that “no trespassing” signs demonstrate a legitimate expectation of privacy that requires a warrant to overcome. See State v. Roubique, 421 So. 2d 859, 862 (La. 1982); State v. Bullock, 901 P.2d 61, 75-76 (Mont. 1995); People v. Scott, 593 N.E.2d 1328, 1338 (N.Y. 1992). The vast majority of states that have directly addressed the issue, however, consider signage to be but one consideration when determining whether a person has demonstrated a legitimate expectation of privacy. See, e.g., Michel v. State, 961 P.2d 436, 437-38 (Alaska Ct. App. 1998) (holding that “[p]ersons visiting the residence for social or commercial purposes” would not construe “no trespassing” signs along driveway “as meant to prohibit their entry”); Burdyshaw v. State, 10 S.W.3d 918, 921 (Ark. Ct. App. 2000) (“[E]ven though the property was posted, the gates were open, the driveway was not blocked, and entry onto the property was not an intrusion prohibited by the Fourth Amendment.”); Burkholder v. Superior Court, 96 Cal. App. 3d 421, 428 (Cal. Ct. App. 1979) (holding that expectation of privacy was objectively reasonable when “[e]ntry to the property was openly restricted by posted signs along, and locked gates across[] the rural access road signif[ied] an intention to deny access to the public in general, including government agents”); Brown v. State, 152 So.3d 619, 624 (Fla. Dist. Ct. App. 2014) (“While this Court has found that a policeman may enter the curtilage surrounding a home in the same way as a salesman or visitor could, no such person would reasonably go through both a gated four-foot fence and a gated six-foot fence, surrounded by several ‘No Trespassing’ signs in order to conduct business with the residents.”); Wysong v. State, 614 So.2d 670, 671 (Fla. Dist. Ct. App. 1993) (holding that officers did not illegally enter yard to knock on door despite “no trespassing” sign); State v. Rigoulot, 846 P.2d 918, 923 (Idaho Ct. App. 1992) (“Posting ‘No Trespassing’ signs may indicate a desire to restrict unwanted visitors …. However, such signs cannot reasonably be interpreted to exclude normal, legitimate, inquiries or visits by mail carriers, newspaper deliverers, census takers, [etc.] who restrict their movements to the areas of one’s property normally used to approach the home.” (citations omitted)); Mundy v. State, 21 N.E.3d 114, 118-19 (Ind. Ct. App. 2014) (holding that it was unreasonable for officers to enter property when it was posted, there was a chain across the driveway, and a security camera was on a tree near the chain); State v. Fisher, 154 P.3d 455, 470-75 (Kan. 2007) (ruling that deputy was legally on property to conduct “knock and talk” but could not seize evidence from curtilage; presence of “no trespassing” signs was part of curtilage analysis); Jones v. State, 943 A.2d 1, 12 (Md. 2008) (“For Fourth Amendment purposes, appellant could not have had a reasonable expectation that the ‘No Trespassing’ sign would or should prevent visitors with a legitimate purpose from walking to the front door, including police officers in furtherance of an investigation.”); State v. Kruse, 306 S.W.3d 603, 611-12 (Mo. Ct. App. 2010) (stating that signage is one consideration when determining whether police intrusion into backyard was reasonable); State v. Pasour, 741 S.E.2d 323, 326 (N.C. Ct. App. 2012) (“[W]hile not dispositive, a homeowner’s intent to keep others out and thus evidence of his or her expectation of privacy in an area may be demonstrated by the presence of ‘no trespassing’ signs.”); State v. Mittleider, 809 N.W.2d 303, 307-08 (N.D. 2011) (holding that “no trespassing” signs on farm did not create reasonable expectation of privacy in entrance to the farm but leaving open the question of whether such signs could ever create a reasonable expectation of privacy); State v. Morgan, No. 13-CA-30, 2014 WL 1836015, at *3-4 (Ohio Ct. App. May 1, 2014) (holding that initial “knock and talk” was “unobjectionable” – despite “no trespassing” signs in front of house but entry into backyard was unreasonable, partly because of the signage), no perm. app. filed; State v. Roper, 294 P.3d 517, 520 (Or. Ct. App. 2012) (holding that fence plus signage “objectively manifested intent to exclude the public”); State v. Gabbard, 877 P.2d 1217, 1221 (Or. Ct. App. 1994) (concluding that “no trespassing” sign on boundary fence, without more, would not have served to exclude the “reasonable visitor . . . who desired to contact the residents” and that, therefore, officers could rightfully use driveway to approach house); Robinson v. Commonwealth, 639 S.E.2d 217, 222 (Va. 2007) (“Implied consent can be negated by obvious indicia of restricted access, such as posted ‘no trespassing’ signs, gates, or other means that deny access to uninvited persons.”); State v. Johnson, 879 P.2d 984, 992 (Wash. Ct. App. 1994) (holding that the defendants manifested “their subjective intent to close their property by fencing it, erecting a gate, and placing signs near the gate saying ‘No Trespassing’ and ‘Private Property.’”).

In addition, we note that the United States Supreme Court in Oliver v. United States, when determining whether “no trespassing” signs created a legitimate expectation of privacy in open fields when there would otherwise be no expectation of privacy stated, “Certainly the Framers did not intend that the Fourth Amendment should shelter criminal activity wherever persons with criminal intent choose to erect barriers and post ‘No Trespassing’ signs.” Oliver, 466 U.S. at 183 n.13. Even under the Jardines search test, which focuses more on trespass law than on expectation of privacy, the officers’ actions in merely conducting a “knock and talk” would not be proscribed as a warrantless search. See Jardines, 1415-18 (ruling that bringing a drug-sniffing canine into defendant’s curtilage objectively demonstrated that the police were intruding upon a constitutionally protected area to search, not merely conducting a “knock and talk”). “The law of trespass generally gives members of the public a license to use a walkway to approach the front door of a house and to remain there for a brief time.” Id. at 1420 (Alito, J., dissenting). Consequently, if the officers’ actions were not a search, then the Fourth Amendment protections would not apply.

Taking all of these cases into consideration, the emerging rule appears to be that the implied invitation of the front door can be revoked but that the revocation must be obvious to the casual visitor who wishes only to contact the residents of a property. See State v. Grice, 767 S.E.2d 312, 319 (N.C. 2015) (“The implicit license enjoyed by law enforcement and citizens alike to approach the front doors of homes may be limited or rescinded by clear demonstrations by the homeowners and is already limited by our social customs.”). Thus, in this case, we must determine whether a small sign reading “no trespassing[,] hunting[,] or fishing,” posted in a field next to appellant’s driveway that is difficult to see when driving down the driveway, as evidenced by the “dashcam” video presented in this case, is sufficient to revoke the implied invitation.5 Several courts when ruling on this issue have noted that such a sign, especially on a rural property, is generally intended to prevent people from unauthorized use of the property, not to prevent a casual visitor from approaching the residence. See, e.g., U.S. v. Ventling, 678 F.2d 63, 66 (8th Cir. 1982); Michel, 961 P.2d at 438. ….

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