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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)