“When law enforcement officers, without a warrant, enter a homeowner’s fenced property through a partially open gate with a ‘No Trespassing’ sign posted on the fence nearby, and then proceed through an unlocked screen door onto an enclosed front porch and execute a ‘knock and talk’ with the homeowner at the front door to his home, have they violated the Fourth Amendment?” Not here. United States v. Holmes, 2015 U.S. Dist. LEXIS 152714 (M.D.Fla. Nov. 11, 2015):
Accordingly, in the absence of another barrier (such as a fence and gate), “No Trespassing” signs do not, in and of themselves, withdraw the implied consent to conduct a knock and talk. See, e.g., United States v. Hopper, 58 F. App’x 619, 623 (6th Cir. 2003) (holding knock and talk was permissible despite two or three “No Trespassing” signs at entrance to driveway); United States v. Jones, No. 4:13CR00011-003, 2013 U.S. Dist. LEXIS 124261, 2013 WL 4678229, at *1 n.2, *6 (W.D. Va. Aug. 30, 2013) (holding knock and talk was permissible despite at least five signs, two of which were posted on the house, reading “No Trespassing,” “Posted: Private Property,” and “Keep Out,” where no fence or gate surrounded the property); United States v. Schultz, No. 13-20023, 2013 U.S. Dist. LEXIS 75049, 2013 WL 2352742, at *5 (E.D. Mich. May 29, 2013) (finding officers did not violate defendant’s rights when they passed “No Trespassing” signs while entering property to conduct knock and talk). But see State v. Christensen, No. W2014-00931-CCA-R3-CD, 2015 Tenn. Crim. App. LEXIS 357, 2015 WL 2330185, at *12 (Tenn. Crim. App. May 14, 2015) (Williams, J., concurring and dissenting) (questioning why the government is permitted to keep visitors out by posting a single “No Trespassing” sign yet homeowners cannot keep the government out with the same sign), appeal pending, No. W2014-00931-SC-R11-CD, 2015 Tenn. LEXIS 769 (Tenn. Sept. 22, 2015) (order granting leave to appeal).
While neither a fence with an unlocked gate nor a “No Trespassing” sign are by themselves sufficient to withdraw consent to approach an individual’s front door, Holmes nevertheless argues that the two combine to expressly revoke consent, especially when added to a variety of other factors present in this case. (Doc. 63 at 15-16). Those other factors, however, have minimal impact on the analysis. That Holmes’ front door lacks a knocker or doorbell means little, as many Americans live in homes without such devices but routinely welcome guests to their front door. See, e.g., United States v. Jackson, __ F. App’x __, 2015 U.S. App. LEXIS 11034, 2015 WL 3938341, at *5 (11th Cir. June 29, 2015) (lack of door knocker did not revoke implied invitation to enter property), cert. denied, __ S. Ct. __, 2015 U.S. LEXIS 6614, 2015 WL 5477814 (Oct. 19, 2015). Holmes’ burglar-bar door indicates a desire not to be robbed, not a desire to prohibit visitors. His screen and lattice front porch does not deter entry (see supra, p.13) and his boarded up garage does not affect the analysis. A dog in the yard and a “BEWARE OF DOG” sign on the driveway gate warns potential visitors that they should look out for the dog when they enter the gate, not that they should avoid entry altogether. Finally, the “PRIVATE PROPERTY[:] NO TRESPASSING” and “BEWARE OF DOG” signs on the sliding construction gate merely duplicate the signs near the driveway gate — if the latter are insufficient to withdraw the implied consent, the former are too.
Holmes’ argument therefore relies upon the four-foot chain-link fence surrounding his property, albeit with a partially open gate, and the “NO TRESPASSING” sign to the right of that open gate. Some courts have upheld the constitutionality of knock and talks at fenced properties with open gates bearing “No Trespassing” signs. In United States v. Denim, No. 2:13-CR-63, 2013 U.S. Dist. LEXIS 122498, 2013 WL 4591469 (E.D. Tenn. Aug. 28, 2013), police officers entered through an open driveway gate despite six “No Trespassing” signs posted along the length of the driveway. Denim, 2013 U.S. Dist. LEXIS 122498, 2013 WL 4591469, at *2. Finding that the signs did not constitute an express revocation of the implied license to approach the front door, the court held the knock and talk was constitutional. 2013 U.S. Dist. LEXIS 122498, [WL] at *5. Similarly, in United States v. Lowry, No. 1:06CR00038MP-AK, 2007 U.S. Dist. LEXIS 100467 , 2007 WL 1655419 (N.D. Fla. June 6, 2007) aff’d, 315 F. App’x 214 (11th Cir. 2008), police officers performed a knock and talk at a property that was fenced, albeit with a few gaps where the fence was knocked down by trees. Lowry, 2007 U.S. Dist. LEXIS 100467, 2007 WL 1655419, at *2. There were “No Trespassing” signs on the fence and a box in front of the gate for deliveries, but the gate was unlocked and open. Id. The court found that a police officer may enter the property in such circumstances, and so the knock and talk was permissible.20 2007 U.S. Dist. LEXIS 100467, [WL] at *3. See also, United States v. Bearden, 780 F.3d 887, 893-94 (8th Cir. 2015) (finding lawful knock and talk where officers entered property through open driveway gate despite presence of “No Trespassing” signs); State v. Roper, 254 Ore. App. 197, 294 P.3d 517, 518 (Or. Ct. App. 2012) (same).
