WaPo: The Fourth Amendment and “no trespassing” signs

WaPo: The Fourth Amendment and “no trespassing” signs by Orin Kerr:

In Florida v. Jardines (2013), the U.S. Supreme Court held that a front porch is a Fourth Amendment protected area but that there is an “implied license” allowing the police to walk up to the front door and knock in at least some cases. If the police are just coming to talk to the homeowner, the court concluded, that’s within the implied license and no Fourth Amendment search occurs. Homeowners implicitly consent to people coming to knock on the door and talk to them; that’s why they have doorbells. On the other hand, if the police are bringing a drug sniffing dog to smell for drugs, that is outside the implied license. People don’t implicitly consent to people coming to search them, and bringing a drug-sniffing dog to the front porch is a clear objective sign that the officers intend to search them. Coming to the front porch with a drug-sniffing dog is therefore a search, and the police ordinarily can’t do that without a warrant.

Now consider this question: How does Jardines apply when properties have “no trespassing” signs posted? The problem is identifying the test for determining whether a posted sign revokes the implied license to approach the door and knock. To my mind, the key is that the basic nature of Jardines‘s “implied license” test is ambiguous. …

This entry was posted in Curtilage, Reasonable expectation of privacy. Bookmark the permalink.

Comments are closed.