Officers could enter defendant’s driveway to conduct a knock-and-talk, and they didn’t “linger” long in violation of Jardines. They smelled marijuana coming from the garage, and that was sufficient to get a search warrant. Defendant’s argument about the sign on his property denying consent or the ability to stay on the property wasn’t presented to the trial court, so it’s waived for appeal. State v. Piland, 2018 N.C. App. LEXIS 1031 (Oct. 16, 2018):
… Thus, officers conducting a knock and talk investigation can lawfully approach a home so long as the officers remain within the permissible scope afforded by the knock and talk. See id. The United States Supreme Court explained the permissible scope in Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409 (2013):
[T]he knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds. This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do.
Id. at 8, 133 S. Ct. at 1415-16 (citations, footnote, and internal quotation marks omitted). We note that “law enforcement may not use a knock and talk as a pretext to search the home’s curtilage.” State v. Huddy, ___ N.C. App. ___, ___, 799 S.E.2d 650, 654 (2017) (citation omitted). “Put another way, law enforcement may do what occupants of a home implicitly permit anyone to do, which is ‘approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.'” Id. (quoting Jardines, 569 U.S. at 8, 133 S. Ct. at 1415). “This limitation is necessary to prevent the knock and talk doctrine from swallowing the core Fourth Amendment protection of a home’s curtilage.” Id.
We conclude that the officers had a lawful presence in the portion of Defendant’s driveway where they parked to perform the knock and talk. In light of Grice and Jardines, we next examine the officers’ conduct. Defendant’s driveway was directly next to the garage door. While there is a path before the garage which allows a visitor to walk to the front door, this path attaches to the driveway and is only a few feet from the garage. Thus, we find that any private citizen wishing to knock on Defendant’s front door would be entitled to drive into the driveway, get out, walk between the car and the path so as to stand next to the garage, and continue on the path to the front porch. Therefore, we conclude that the officers’ conduct here, as in Grice, was permitted when they pulled into the driveway by the garage, got out of their car, and stood between the car and the garage. See Grice, 367 N.C. at 757-58, 767 S.E.2d at 316.