“No Trespassing” Signs Didn’t Bar Efforts to Knock-and-Talk

by | March 29, 2016

Investigators received several tips that Carloss, a previously convicted felon, was possibly holding a machine gun and was selling methamphetamine from his home. Two investigators went to Carloss’ home. Four signs were posted around the home: a “No Trespassing” sign on a 3-foot-high post by the driveway, “Private Property No Trespassing,” nailed to a tree, and signs on a wooden pole in the front yard and on the front door of the house, both stating “Posted Private Property Hunting, Fishing, Trapping or Trespassing for Any Purpose Is Strictly Forbidden Violators Will Be Prosecuted.”

The investigators parked in the driveway and knocked on the front door. No one answered, though they could hear movement in the house. A short time later, Heather Wilson came out a side door. Wilson told the investigators that Carloss, Earnest Dry and another woman were inside.

Carloss came outside and the investigators explained that they had heard that Carloss might have a gun. Carloss said he knew that he could not be around ammunition due to his conviction status. Investigators asked to look around the house. Carloss said that he rented a room in the house and that he’d have to get Dry to give permission. When Carloss went into the house to talk to Dry, the investigators asked to accompany Carloss. He agreed.

The investigators saw white powder and drug paraphernalia in the mud room (a room Carloss claimed as his) on the way in. They asked Dry for consent to search the house. Dry called his attorney and subsequently denied consent.

Based on the paraphernalia and white powder, the investigators obtained a search warrant. During the search pursuant to that warrant, officers found “multiple methamphetamine labs” and lab components, a loaded shotgun, two blasting caps, ammunition and other drug paraphernalia.

Carloss claimed that the officers violated the Fourth Amendment by going to the front door and knocking because the property was posted with “no trespassing” signs.

In a split decision, the court held that the investigators did not violate the Fourth Amendment by walking up to the door and knocking. The court noted that a pizza delivery driver or mail carrier would typically walk right past the signs: “Those signs would not have conveyed to an objective officer, or member of the public, that he could not walk up to the porch and knock on the front door and attempt to contact the occupants.”

Though the front porch is typically considered to be within the curtilage of a home, the court distinguished walking up to the front door and taking a drug detector dog to the front door as happened in Florida v. Jardines (133 S.Ct. 1409 (2013)). The Jardines court held that officers violated the Fourth Amendment by intruding on a home’s front porch, a “classic exemplar” of curtilage, with a detector dog sniffing for the odors of controlled substance. However, the investigators in this case were merely seeking to speak with Carloss, not trying to collect evidence of what was occurring inside the home.

The dissent argued that the sign posted “smack in the middle of the front door” gave notice to the whole world forbidding trespassing for any reason.

United States v. Carloss, 2016 WL 929663 (10th Cir. 2016)

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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