Can the Police Go to the Front Door of a Home Marked With “No Trespassing” Signs?

In Florida v. Jardines, 133 S.Ct. 1409 (2013), the Supreme Court indicated that a police officer’s right to walk up to a front door of a person’s home is subject to an implied license based on existing social norms. Going on to the property and approaching the front door is a physical intrusion onto the curtilage, Jardines holds. But there is an implied license to approach a front door with the intent to knock and try to speak to the homeowner:

A license may be implied from the habits of the country, notwithstanding the “strict rule of the English common law as to entry upon a close. We have accordingly recognized that the 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.

Jardines holds that the implied license does not extend to bringing a dog to the front porch of a house with the intent to search the home:

[I]ntroducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license — express or implied — is limited not only to a particular area but also to a specific purpose.

One question that arises from Jardines is whether the police can go up the front door when a homeowner puts up “no trespassing” signs or something similar to indicate that this particular homeowner revokes the implied license. Do the signs revoke the implied license?

In United States v. Denim, 2013 WL 4591469 (E.D.Tenn. August 28, 2013), the district court (adopting the magistrate judge’s R&R) held that “no trespassing signs” do not revoke the implied license and that officers can approach the front door and knock on the door despite the signs:

It is defendant’s argument that his No Trespassing signs constituted an explicit revocation of the implied license discussed by Justice Scalia.

Respectfully, that argument stretches the Jardines opinion too far. Justice Scalia went on to say that there was no societal implied invitation for anyone to bring a drug-sniffing dog onto the curtilage. For this court to conclude that No Trespassing signs amount to an across-the-board revocation of the implied societal consent necessarily would require a court to conclude that society is ready to recognize as reasonable the expectation of privacy which that revocation entails. As an example, it is impossible for this court to believe that society is prepared to accept as reasonable a right of privacy that would deny a law enforcement officer the right to enter upon property to investigate an anonymous complaint that a child was being abused on that property. To be sure, a court could carve out an exception for anonymous complaints of child abuse on the theory that they amount to an exigent circumstance, but then it becomes a matter of degree. Is an anonymous complaint of child endangerment a sufficient exigency, but a citizen’s loss of his valuable property not enough? A crime is a crime, and the police are allowed to enter upon property to conduct a knock and talk. If the resident is unwilling to talk, that ends it, but most citizens assuredly would be willing to talk to a police officer, and this is why society is not prepared to go as far as defendant asks in this case.

Maybe that result is right, but the court’s reasoning is hard to square with Jardines. The Denim court applies the Katz “reasonable expectation of privacy” test. And it does so in a weird way, by asking whether “society” would accept as reasonable the specific application of a rule to the facts before the court rather than whether the expectation of privacy in the protected space is reasonable generally. But this seems hard to square with Jardines, as Jardines was not based on Katz at all. The Supreme Court in Jardines applied the trespass/physical intrusion test that is the alternative test for a “search.” The Katz test is irrelevant to the Jardines analysis.

More broadly, whether No Trespassing signs might revoke the implied license raises a difficult issue about the nature of Jardines: Is the scope of the “license” a question of law or is it a question of fact? Put another way, is the scope of the license something that the Court answer for all based on its understanding of social norms, or is it a question of fact that is addressed on a case-by-case basis like issues of consent in Fourth Amendment law? And just as a matter of doctrine, is the absence of a license an element of what is a Fourth Amendment search under the trespass/physical intrusion test (thus making the test for a Jones/Jardines search whether there is an unlicensed physical intrusion or trespass on to a protected area with intent to obtain information) or is the question of license just another way to talk about consent, and thus the reasonableness of a search rather than whether a search occurred? Different parts of the opinion hint at different answers, I think.

It’s somewhat easier to reach the result that No Trespassing signs don’t matter if you see the license as an issue of law; you just announce that the license does not consider such signs. You can also get there if you see the license as an issue of fact, although it may begin to depend on the details of where the signs were placed and what they said. For example, perhaps a generic “no trespassing” doesn’t necessarily apply to the police, while a “no police permitted on the premises under any circumstances” would. It could depend on the facts of each case. Either way, I would think that the broader question hinges on the nature of the implied license test articulated in Jardines rather than anything found in Katz.

Hat tip: FourthAmendment.com