Where the defendant lives on the property where he conducts his business, the curtilage of home is lesser because the property has been opened for business. Here, defendant lived on the property of his junkyard. State v. Hiebert, 2014 Ida. App. LEXIS 69 (July 10, 2014):
Initially, Hiebert argues that the officers failed to leave the premises–as normal visitors would reasonably be expected to do–after receiving no response upon approaching one of the front buildings, knocking, and waiting briefly to be received. See Florida v. Jardines, ___ U.S. ___, ___, 133 S. Ct. 1409, 1416 (2013) (holding that the implied license to approach typically permits approaching by the normal access route, knocking promptly, waiting briefly to be received, and then leaving absent an invitation to linger longer); State v. Howard, 155 Idaho 666, 671, 315 P.3d 854, 859 (Ct. App. 2013) (citing to Jardines for this same proposition). However, this ignores the unique context in which this case occurs. Unlike in Jardines or Howard, which both involved police entry onto the curtilage of a normal residence, this case involves a residence located on property that has been opened to the public for business purposes. As a result, the expectation of what an ordinary visitor (in many cases, a customer of the business) might reasonably do is expanded. When an individual lives on the same property as his or her place of business, it is reasonable to expect that an ordinary visitor may look for the proprietor of the business somewhere on the property where he or she might be working. Cf. Doe v. State, 131 Idaho 851, 854, 965 P.2d 816, 819 (1998) (finding that it was reasonable for officers to look for a minor suspected of robbery on his family dairy farm in an area where he might be found working, such as an illuminated barn). Indeed, it is entirely reasonable to expect an ordinary customer to travel the available, unobstructed access routes of the property to inspect the wares of the business that are open to the public and within view of those established access routes.
In this case, Hiebert operates a business that is open to the public, creating an implied–if not explicit–invitation to enter upon his property and travel in the established pathways of the business. Indeed, the officers passed through an open gate with a clearly visible “open” sign during normal business hours. Although Hiebert’s father, who also lives on the property, testified that the back of the junk yard is closed to the public and that people are supposed to stop at the shop, the question is what an ordinary visitor to the business property, not knowing the subjective intent of the owner, would have objectively perceived as reasonable conduct. The officers stopped their vehicles near the posted “stop” and “no thru traffic” signs, obeying the admonitions to take their vehicles no further into the property. The officers then approached at least one of the two front buildings by the established pathway, knocked, and announced their presence. Receiving no reply, the officers walked toward the back of the property in search of the proprietor of the business, as prior experience had taught them that workers could often be found in the back junk yard portion of the property. Under the circumstances, an ordinary visitor to the business could be reasonably expected to do the same.
Hiebert also asserts that, by the officers’ foray into the junk yard beyond the “stop,” “no thru traffic” and small “no trespassing” signs, they entered upon areas of the property to which the implied invitation to enter had been revoked. We disagree. Posting “no trespassing” signs may indicate a desire to restrict unwanted visitors and announce one’s expectations of privacy. State v. Rigoulot, 123 Idaho 267, 272, 846 P.2d 918, 923 (Ct. App. 1992); see also State v. Kelly, 106 Idaho 268, 275, 678 P.2d 60, 67 (Ct. App. 1984). However, those signs cannot reasonably be interpreted to exclude normal, legitimate inquiries or visits by ordinary individuals, including police officers, who restrict their movements to the areas normally used by a reasonable visitor. Rigoulot, 123 Idaho at 272, 846 P.2d at 923. Moreover, where a “no trespassing” sign is ambiguous and not clearly posted, the implied invitation to enter the curtilage of a home via the normal access routes is not revoked. Howard, 155 Idaho at 672, 315 P.3d at 860.
In Howard, the defendant alleged that he had revoked the implied invitation to enter his property by posting a “no trespassing” sign where officers entered his property. The sign was posted past the entrance to the gate on the second post of a fence to the side of the road entering the property. In rejecting the defendant’s assertion, we noted that the sign was not clearly posted because it was small and placed in a location away from the entrance in which it would not easily be noticed. Id. Moreover, we noted that the placement of the sign created an ambiguous message, as it was located over a mile from the defendant’s residence and could just as easily have been interpreted to convey to the public to stay off of the land behind the fence to which it was attached. Id.
Here, the “no trespassing” sign was posted on a shed beyond the front buildings and to the left of the main driveway. Based on the photographic exhibits in the record, the small sign was not easily visible to someone walking up the driveway toward the back of the property. The officer did not testify whether he saw the small sign. However, as in Howard, the sign’s placement created an ambiguous message, as a reasonable visitor who did see the sign would be uncertain of whether the sign prohibited trespassing into the building on which it was attached, the small driveway to the left of the sign, or the back of the property. Also, as previously noted, the officers restricted their movements to the clearly established pathways upon which normal visitors might reasonably be expected to travel under the circumstances. In light of these facts, more than an ambiguous and obscure “no trespassing” sign is required to effectively revoke the implied invitation to enter part of a property that has been opened for business purposes. Accordingly, Hiebert has failed to show that the officers’ entrance into the junk yard portion of the property violated his constitutional rights.
