SC: Entry into backyard for knock-and-talk was really a search violating curtilage

Officers entered defendant’s backyard, the curtilage, to conduct what they called a “knock-and-talk,” but it was really a search by their own admission, and they violated the Fourth Amendment. The trial court was correct in finding the backyard curtilage and analyzing the entry under Jardines. Court of Appeals reversed, suppression order reinstated. State v. Bash, 2016 S.C. LEXIS 412 (Dec. 21, 2016), clarified on rehearing, 2017 S.C. LEXIS 61 (March 15, 2017). rev’g State v. Bash, 412 S.C. 420, 772 S.E.2d 537 (App. 2015):

We agree with the circuit court the officers conducted a search of the grassy area, not a knock and talk. First, Sergeant Holbrook testified, “So instead of actually approaching the house and conducting a knock and talk investigation, we just simply drove toward the backyard.” Second, and more importantly, all of the circumstances surrounding the officers’ entry into the grassy area objectively demonstrate their purpose was to conduct a search of the grassy area, not to speak to the homeowner. Sergeants Milks and Holbrook (1) radioed other officers to meet them at the home, (2) put on gear indicating they were with the sheriff’s office, (3) arrived at the home with other officers in cars behind them, and (4) bypassed the front of the home. Further—in their testimony and in Milks’ affidavit—Sergeants Milks and Holbrook gave no indication they were approaching the home in order to speak to the homeowner.

In finding the officers conducted a search—not a knock and talk—the circuit court relied in part on Florida v. Jardines, ___ U.S. ___, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013). The issue in Jardines was “whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a ‘search’ within the meaning of the Fourth Amendment.” ___ U.S. at ___, 133 S. Ct. at 1413, 185 L. Ed. 2d at 499; see also ___ U.S. at ___, 133 S. Ct. at 1414, 185 L. Ed. 2d at 500 (“We granted certiorari, limited to the question of whether the officers’ behavior was a search within the meaning of the Fourth Amendment.”). Quoting Jones, the Supreme Court set forth what it called the “simple baseline” of Fourth Amendment protections: “When ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a “search” within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’” ___ U.S. at ___, 133 S. Ct. at 1414, 185 L. Ed. 2d at 500. After finding “the officers’ investigation took place in a constitutionally protected area”—the curtilage—the Supreme Court “turn[ed] to the question of whether [the investigation] was accomplished through an unlicensed physical intrusion.” ___ U.S. at ___, 133 S. Ct. at 1415, 185 L. Ed. 2d at 501-02.

. . .

Relying on this reasoning from Jardines, the circuit court in this case found the officers’ behavior revealed a purpose to conduct a search. The court specifically found, “They were not there to [talk to] the homeowner.” Going to the front door of a home for the purpose of speaking to the homeowner is not an “intrusion” because of the implied license to do what any private citizen might do. See Rogers, 249 F.3d at 289-90 (stating “police officers do not need a warrant to do what any private citizen may legitimately do—approach a home to speak to the inhabitants”); Wright, 391 S.C. at 444, 706 S.E.2d at 328 (stating, “A policeman may lawfully go to a person’s home” and “go up to the door”). Rather, the circuit court found the officers were there “to see if they could find any [drugs],” a mission no homeowner licenses a police officer to enter their private property to undertake. See Jardines, ___ U.S. at ___, 133 S. Ct. at 1416, 185 L. Ed. 2d at 502-03. Thus, the circuit court found the officers in this case had no license to enter the grassy area, and therefore when they did so they physically intruded onto private property to conduct a search—not a knock and talk. Because no exception to the warrant requirement applied and there was no warrant, the officers violated the Fourth Amendment.

As Jardines makes clear, the circuit court was correct to focus on the purpose of the officers’ actions. As we have explained, the officers’ behavior in this case demonstrates objectively the purpose of searching for drugs. We also note the officers’ subjective intent is consistent with their objective purpose. Sergeant Holbrook testified that “instead of actually approaching the house and conducting a knock and talk investigation, we just simply drove toward the backyard.” Sergeant Milks said the same thing in her affidavit, they “were investigating a suspicious complaint,” not looking for the homeowner.

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