The court of appeals just decided a case that’s important for officers, as well as lawyers and judges, to know about. The case is State v. Pasour, and it began when officers received a call “that a subject living at [a specific address] had marijuana plants growing with his tomato plants.” The officers decided to do a knock-and-talk at the residence. They knocked on the front and side doors and got no response. Pursuant to what they described as a “standard procedure,” they then went around to the backyard, heading for the back door. There was no path or other indication that visitors regularly used the back door, and in fact there was a “no trespassing” sign in the side yard, though the officers apparently did not notice it. As they entered the backyard, the officers saw marijuana plants in plain view. They seized the plants, and charged the defendant with drug offenses.
The defendant moved to suppress, arguing that the officers exceeded the bounds of a permissible knock-and-talk when they went around to the backyard. The trial court denied the motion, and the defendant pled guilty and appealed. The court of appeals reversed. It found that “the determinative issue is whether or not the homeowner had a reasonable expectation of privacy in the area of curtilage the officers entered when they first viewed the contraband,” and it ruled that the defendant did have such an expectation.
Finding no in-state authority on point, the court contrasted two Fourth Circuit cases: Alvarez v. Montgomery County, 147 F.3d 354 (4th Cir. 1998), where the court stated that “[t]he Fourth Amendment does not prohibit police, attempting to speak with a homeowner, from entering the backyard when circumstances indicate they might find him there,” and Pena v. Porter, 316 Fed. Appx. 303 (4th Cir. 2009), in which the court ruled that if there is no reason to believe that a resident is in the backyard or that a knock at the back door will produce a different result from a knock at the front, entering the backyard is generally improper. The court of appeals found the case at bar more similar to Pena than to Alvarez, noting that there was no indication that the defendant would be found in the backyard. Furthermore, the court said, “while not dispositive, a homeowner’s intent to keep others out and thus evidence of his or her expectation of privacy in an area may be demonstrated by the presence of ‘no trespassing’ signs.” Accordingly, it ruled that the defendant had a reasonable expectation of privacy in the backyard, and that the officers’ entry was unreasonable.
There are quite a few out-of-state cases in this area, and many of them support going to the back door under at least some circumstances. In addition to Alvarez, see Hardesty v. Hamburg Township, 461 F.3d 646 (6th Cir. 2006) (“[W]here knocking at the front door is unsuccessful in spite of indications that someone is in or around the house, an officer may take reasonable steps to speak with the person being sought out even where such steps require an intrusion into the curtilage.”), and United States v. Garcia, 997 F.2d 1273 (9th Cir. 1993) (finding a backyard is not protected where there is no reasonable expectation of privacy because the back of the house is used as the principal entrance of the dwelling). See also generally 1 Wayne R. LaFave, Search and Seizure 601 n. 215 (4th ed. 2004) (collecting cases)
I have to admit that some of these decisions puzzle me. I have always understood the curtilage to be an extension of the home, accessible to officers only with a warrant or under an exception to the warrant requirement. Officers can go to the front door for a knock-and-talk even though the front door is within the curtilage because homeowners expect, indeed implicitly invite, visitors of all kinds to the front door. So the consent exception to the warrant requirement applies to officers approaching the front door. But if there’s no path around back that amounts to an implicit invitation for visitors to follow it, I don’t know of a warrant exception that would allow officers to enter the backyard. Alvarez and Hardesty say that entering the backyard to access the back door is permissible if a person may be in the house, but whether the house is occupied doesn’t strike me as particularly relevant. If the crucial issue is, as the Pasour court put it, “whether or not the homeowner had a reasonable expectation of privacy in the area,” whether the occupant happens to be home at a particular moment doesn’t factor into that equation. And if there were some kind of diminished expectation of privacy based on occupancy, it would seem that the officers could then skip the backyard altogether and proceed directly into the home itself!
To be clear, Pasour itself doesn’t say that the backyard is generally off limits. The facts before the court didn’t establish that anyone was inside the house, much less in the backyard, so the court didn’t need to address whether such circumstances would support going around back. As noted above, many out-of-state cases have held that they would, so if I were advising officers, I would advise that going around back is probably permissible if there appears to be someone in the home or in the backyard, unless the backyard is exceptionally secure from intruders, such as by a high fence with a locked gate. If others read Pasour or the out-of-state cases in this area differently, please weigh in.