NC: Jardines does not prohibit knock-and-talks

Where the notice of appeal says the defendant is appealing from the denial of the motion to suppress and not the judgment, the notice of appeal was deficient. Nevertheless, the case was taken by writ of certiorari. The police here entered down the driveway for a knock-and-talk, and there was implied license at least to approach the door to inquire. Defendant did not run them off and refuse to talk to them, as he could. Instead, he engaged the officers, and that was a confirmation of implied license to enter and talk. State v. Smith, 2016 N.C. App. LEXIS 244 (Mar. 1, 2016):

A. Implied License

Defendant argues that the “No Trespassing” sign on his gate “expressly removed” the implied license to approach his home, and thus “any information gathered by the officers following their warrantless entry onto the property should [have been] suppressed.” We disagree because the sign alone, particularly in the context of other relevant facts, was insufficient to revoke the implied license to approach.

As recognized by Jardines, the implied license to approach a home is not absolute. State v. Grice, 367 N.C. 753, 762, 767 S.E.2d 312, 319 (2015) (citing Jardines, 569 U.S. at __, 185 L. Ed. 2d at 502). Provided that the homeowner displays “clear demonstrations” of his intent, the license to approach the home may be limited or rescinded entirely. Id. The dispositive question is whether, at the time of the approach by law enforcement officers, Defendant had made the requisite “clear demonstration” that the license to enter his property has been rescinded. Id.

Prior to Jardines, this Court held that the presence of a “No Trespassing” sign on its own is not dispositive for Fourth Amendment analysis. State v. Pasour, 223 N.C. App. 175, 178-79, 741 S.E.2d 323, 326 (2012) (“Further, while not dispositive, a homeowner’s intent to keep others out … may be demonstrated by the presence of ‘no trespassing’ signs.”). Moreover, while a few jurisdictions in the wake of Jardines have reached mixed results in interpreting when and how revocation may occur, we are not aware of any court that has ruled that a sign alone was sufficient to revoke the implied license to approach. See, e.g., United States v. Bearden, 780 F.3d 887, 893-94 (8th Cir. 2015) (“knock and talk” upheld where officers entered property through open driveway gate marked with “No Trespassing” signs); United States v. Denim, No. 2:13-CR-63, 2013 U.S. Dist. LEXIS 122498, 2013 WL 4591469, at *2-6 (E.D. Tenn. Aug. 28, 2013) (six “No Trespassing” signs not sufficient to revoke implied license). Courts in other jurisdictions have ruled that the implied invitation to approach was revoked by homeowners who sought refuge behind a large, imposing fence and made clear by either verbal or posted instructions that visitors were not welcome. See Bainter v. State, 135 So.3d 517, 519 (Fla. 5th DCA 2014) (license revoked by presence of six foot chain link gate within barbed wire fence, accompanied by “No Trespassing” signs); Brown v. State, 152 So.3d 619, 622-24 (Fla. 3d DCA 2014) (license revoked by presence of two concentric chain link fences around property, “No Trespassing” signs on outer fence, and verbal request to leave by owner); Robinson v. State, 164 So.3d 742, 742-44 (Fla. 2d DCA 2015) (license revoked by closed chain-link fence bearing both “No Trespassing” and “Beware of Dog” signs).

Here, it is not established that Defendant consistently displayed a “No Trespassing” sign on his property. While the trial court found that there was indeed such a sign present on 30 July, the trial court did not find that the sign was present on 31 July, the day law enforcement officers first visited the property.

Moreover, there is no evidence that Defendant took consistent steps to physically prevent visitors from entering the property. The “gate” consisted of wire mesh stretched across two poles on either side of the driveway. At no time during the initial encounter with the Wilsons or the investigation into the shooting did this gate bear a lock or any other form of locking mechanism. While the gate was closed when the Wilsons approached on 30 July, it was open when the detectives arrived on 31 July.

Finally, Defendant’s conduct upon the detectives’ arrival belied any notion that their approach was unwelcome. When the detectives and the uniformed deputy entered his driveway, Defendant emerged from his home and “greeted the detectives and deputy,” and after an initial conversation about the shooting incident, Defendant “voluntarily led the detectives and the deputy around to the rear of the residence” where they discussed Defendant’s work (building animal pens), the weapons he owned (putatively an “air-soft” gun), and his livestock. Thus, rather than avoiding the detectives, which he was entitled to do, or requesting that they leave his property, Defendant engaged them in what the record reflects was a calm, civil discussion. Defendant’s actions therefore did not reflect a “clear demonstration” of an intent to revoke the implied license to approach.