I’ve blogged before about whether law enforcement officers may go to a side door, or the back door, when attempting to conduct a knock-and-talk. The court of appeals just decided another case on point, again holding that an officer generally may not do so.
The case is State v. Stanley.
Facts. A confidential informant contacted the Durham police, reporting that he had purchased heroin from a man named Meager at a particular apartment. The CI then made three controlled buys from Meager at the same apartment, each time using the back door of the unit.
Officers obtained an arrest warrant for Meager and went to the apartment. Meager wasn’t there, but defendant Stanley – an overnight guest at the residence – was present and opened the door for the officers. The officers smelled marijuana, entered the apartment to conduct a protective sweep, and eventually arrested Stanley based on controlled substances and paraphernalia they found on his person and in the apartment.
Procedural history. Stanley was charged with trafficking in heroin and other offenses. He moved to suppress, arguing that the officers violated the Fourth Amendment by approaching the back door of the apartment without a search warrant. A superior court judge denied the motion, and Stanley pled guilty, reserving his right to appeal.
Court of appeals opinion. The court of appeals agreed with the defendant. Citing State v. Huddy, __ N.C. App. __, 799 S.E.2d 650 (2017) (knock and talk at storm door on rear porch improper); State v. Gentile, 237 N.C. App. 304 (2014) (knock and talk at back door after brief attempt at front door improper); and State v. Pasour, 223 N.C. App. 175 (2012) (knock and talk at back door after no reply at front door improper), the court held that the officers’ implied invitation to approach the home extended only to the front door, as that was the entrance available to visitors:
[I]n order to pass constitutional muster, the officers were required to conduct the knock and talk by going to the front door, which they did not do. Rather than using the paved walkway that led directly to the unobstructed front door of the apartment, the officers walked along a gravel driveway into the backyard in order to knock on the back door, which was not visible from the street. Such conduct would not have been reasonable for [solicitors and other members of the public, so] it was also unreasonable for law enforcement officers.
The State noted that the CI had used the back door repeatedly, but the court saw that as immaterial: “[T]he fact that the resident of a home may choose to allow certain individuals to use a back or side door does not mean that similar permission is deemed to have been given generally to members of the public.”
Of course, the requirement that officers use the front door is not absolute. The court “recognize[d] that the existence of unusual circumstances in some cases may allow officers to lawfully approach a door of a residence other than the front door in order to conduct a knock and talk.” As an example, the court cited State v. Grice, 367 N.C. 753 (2015), holding that officers were “implicitly invited into the curtilage to approach the home” where front door was “inaccessible, covered with plastic, and obscured by furniture” and side door “appeared to be used as the main entrance.” My favorite way to conceptualize this inquiry is using the Girl Scout test. If a Girl Scout would use the entrance in question in an effort to sell cookies, it is fair game for law enforcement. If not, not. See Florida v. Jardines, 569 U.S. 1 (2013) (arguing that understanding the scope of the implied invitation of common entranceways “does not require fine-grained legal knowledge” as it is “is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters”). Applying that test, it is hard to quibble with the outcome of Stanley.
Multi-unit dwellings. Although not addressed in the opinion, a Fourth Amendment issue lurking in this case is the extent to which multi-unit dwellings have curtilage. The trial judge found that the apartment in question was one unit in a small duplex. Google Street View confirms that the structure is a small, side-by-side duplex near the Durham Freeway. The extent to which multi-unit dwellings have curtilage is not settled, as I discussed in blog posts here and here. There’s not much North Carolina law on point, so the fact that Stanley concluded, even in passing, that the backyard of a duplex is part of the curtilage may be significant.
My curtilage question: A gate at the property boundary is often left open, which would imply the expectation of visitors proceeding up a meandering drive to the house several hundred yards uphill and unseen from the gate. If signs were placed at the gate saying ” Legal Curtilage Begins Here ” along perhaps with NO Trespassing or Keep Out signs be enough to revoke implied consent to enter, or does the gate need to be closed as well? At a gate that is closed but not padlocked would the police violate privacy expectations by opening the gate and proceeding? Can the police be exclusively be denied entry by signage while allowing others to proceed past the gate, whether closed or open? Would a sign that says: ” Invited or expected guests only ! ” imply the curtilage limit begins there for all others, including police? Basically can a person define their own curtilage by signage to reflect their expectations and desire to limit visitors removed from the actual dwelling? Some insight would be appreciated.
If you put a sign up at the border of your property saying “Invited or expected guests only” then the curtilage question becomes irrelevant: the sign is a more definitive notice than curtilage that people are not invited onto the property. You can exclude people (police are also people) from your property whether that property is part of your curtilage or not. The presumption is that people are not allowed into your curtilage; the curtilage counts as if it were your house. That presumption doesn’t exist for the rest of your property, but if you indicate by sign or locked gate that people are not allowed, there is no need for a presumption. You’ve made your choice clear. A sign reading “Legal Curtilage Begins Here” should be ineffective to alter what is and is not curtilage because it is only the sign-writer’s legal opinion of where curtilage begins and most people will not know what the sign is meant to convey, anyway. “No trespassing” and “keep out” signs, however, make plain to anyone reading them that people are not allowed on that property, as would a padlocked gate. An unlocked gate or even an open gate neither invites nor forbids people to enter. I imagine there is statutory or common law against forbidding police entry while allowing everyone else entry, but I don’t know of any off the top of my head. A property owner should be able to forbid people carrying firearms from entering his/her property and that would include police, but again I don’t know the law on this. I’m curious…
Did the court not take into account that the officers had an arrest warrant and, considering IF they had reasonable belief to think Meager was inside of the apt and this was his primary residence, the arrest warrant grants them the authority to enter his house to arrest him or that doesn’t matter in this case? If an officer is going to make entry into an offender’s house to serve him with an arrest warrant, does the officer have to attempt to gain entry ONLY through the front door (or whatever door a Girl Scout would use)?