TN: Police passing “no trespassing” signs on rural land doesn’t prevent a knock-and-talk

Citing numerous cases, the Tennessee Supreme Court holds that officers passing “no trespassing” signs has no talismanic authority to make a knock-and-talk unreasonable. The overwhelming weight of authority so holds. Police came to defendant’s front door, knocked, and he opened it and came out and locked the door. The officers could smell a meth lab inside. They asked for consent, and it was refused, so they entered anyway, finding a working lab and other inactive production stuff. The warrantless entry into the house was reasonable. State v. Christensen, 2017 Tenn. LEXIS 195 (April 7, 2017), aff’g 2015 Tenn. Crim. App. LEXIS 357 (May 14, 2015) (see Treatise § 16.05 n.3):

The question before us in this case is whether posting “No Trespassing” signs near an unobstructed driveway is an express order sufficient to revoke or limit the invitation/license such that a police officer may not legitimately approach the residence via the driveway in order to conduct a warrantless knock-and-talk encounter. That is, did the Defendant’s signs turn the investigators’ entry onto his property into an intrusion subject to constitutional protections? It is the Defendant’s burden of establishing, by a preponderance of the evidence, that the investigators’ knock-and-talk was invalid. See Holmes, 143 F. Supp. 3d at 1261. [On this score, I disagree. Anything warrantless has the burden on the prosecution, not the defense. That alone is reason to seek review with SCOTUS.]

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We agree with the overwhelming majority of jurisdictions that have addressed the issue that signs admonishing “No Trespassing,” in and of themselves, are rarely going to be sufficient to revoke the implied license allowing persons to approach a front door and knock. The term “No Trespassing” is not so clear and unambiguous as the Defendant and the dissent claim. See Carloss, 818 F.3d at 995 (stating that no trespassing signs “by themselves, do not have the talismanic quality [the defendant] attributes to them”). Black’s Law Dictionary defines the term “trespass” as “[a]n unlawful act committed against the person or property of another; especially, wrongful entry on another’s real property.” Black’s Law Dictionary 1503 (10th ed. 2014) (emphases added). This definition implies clearly that some entries onto another’s real property are neither unlawful nor wrongful and, therefore, are not trespasses. Indeed, this Court recognized over one hundred and fifty years ago that, “[i]n law every entry upon the soil of another, in the absence of a lawful authority, without the owner’s license, is a trespass.” Norvell v. Gray’s Lessee, 31 Tenn. 96, 103 (1851) (emphasis added); see also, e.g., City of Townsend v. Danico, No. E2013-01778-COA-R3-CV, 2014 Tenn. App. LEXIS 302, 2014 WL 2194453, at *3 (Tenn. Ct. App. 2014) (recognizing that “[t]he courts of this state have … defined the tort of trespass as an unauthorized entry upon the land of another”) (citing Norvell, 31 Tenn. at 103); Holmes, 143 F. Supp. 3d at 1265 (stating that “the plain meaning of ‘No Trespassing’ is that it prohibits what people ordinarily think of as trespassing, and does not alter the character of an entry that one would not otherwise think to be a trespass, such as the implied license to approach the homeowner’s door to knock and talk”) (citing Oliver, 466 U.S. at 183 n.15).

In short, a homeowner who posts a “No Trespassing” sign is simply making explicit what the law already recognizes: that persons entering onto another person’s land must have a legitimate reason for doing so or risk being held civilly, or perhaps even criminally, liable for trespass. Consequently, as set forth above, a knock-and-talk conducted within constitutional parameters is a legitimate reason for police officers to enter the curtilage of a house via a driveway that is obstructed by nothing more than several “No Trespassing” signs. For this reason, we disagree with the dissent that “a ‘No Trespassing’ sign should be of particular significance to law enforcement officers in communicating that they may need to obtain a warrant before entering the property.”10 Officers engaging in legitimate police business will conclude, correctly, that they are not engaging in a “trespass” when they approach a front door to conduct a knock-and-talk. We also emphasize that the occupant of a residence is under no obligation to open a door when knocked upon by a police officer who holds no warrant.

The Defendant asserts that his signs were accompanied by other barriers to entry, including overgrown vegetation, the lack of a pathway to his house, and debris blocking any possible route from the driveway to the front porch, and that the totality of these circumstances made clear that no one was to enter his property absent an express invitation. We are not persuaded. First, the impact of signs at the beginning of a long driveway is not altered by the eventual accessibility of the front porch sixty or seventy yards later. Second, while a fence and a closed gate that physically block access to the front door of a house, in some instances, may be sufficient to revoke the implied license to enter the curtilage of a residence, mere ambiguous signage and unkemptness are not.

We agree with the lead opinion below that the Defendant’s signs “would not have prevented the casual visitor or the reasonably respectful citizen from approaching [the Defendant's] residence.” Christensen, 2015 Tenn. Crim. App. LEXIS 357, 2015 WL 2330185, at *8. Accordingly, we hold that, under the totality of the circumstances, the Defendant’s “No Trespassing” signs posted near his unobstructed driveway were not sufficient to revoke the implied license referred to in Jardines. The Defendant is not entitled to relief on this basis.

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