Going to the Back Door

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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.

 

7 comments on “Going to the Back Door

  1. Jeff,
    I am a Probation Supervisor, and reading this brings thoughts as to any legal issues with Probation Officers and attempting to make contact with probationers at their residence. Would the curtilage and expectation of privacy theories apply, in that our Officers regularly approach residences, and likely often use/check entries other than front door when attempting to make contact, and attempting to verify someone has not absconded, etc.

    Just a thought….

  2. What if the officers were there to serve an arrest warrant either based on a 911 call or a tip (with the address on the warrant that does not match the target location) and one went around back and saw the plants. Then got a search warrant to seize? What are your thoughts on that set of facts?

  3. @MHChase
    People on supervised probation unless excluded by the judge are subject to warrantless searches by probation officers as a regular condition of probation as provided in statute. Thus if a probation officer is at the residence to check on a person on probation, he or she does not have to worry about an expectation of privacy as much as a local law enforcement officer would have to. Surely a judge (well maybe in Chapel Hill) would not find that a probation officer has violated the fourth amendment by knocking on the back door to check on someone that is on probation. Thus anything discovered in plain view would be subject to seizure and used as evidence in court. Furthermore, probation officers in this state despite having statutory authority to arrest and charge people with crimes decide that they want no business of taking advantage of such powers. Probation Officers in this state call the local police to handle the situation when a person on probation is found to possess illegal contraband as a matter of policy. As I understand their policy, they are not allowed to arrest for anything other than a probation violation.

    So as established in State v. Lombardo, any evidence a probation officer has to worry about is not suppressible because the exclusionary rule does not apply in a probation hearing. Being that probation officers in this state do not charge people with additional crimes, they never have to worry about a supression hearing. It becomes the local law enforcement officer’s problem to determine if the search is lawful and can be used as evidence in court once they arrive on scene and are briefed by the probation officer.

  4. So it is ” standard practice ” for the police to ignore curtilage boundaries, even when a NO Trespassing sign is in plain view ( of course they failed to see it, as it might have discouraged their intrusion )..that alone tells us much: Cops today care nothing about the fact that the law demands compliance to certain limits on their powers as cops, which they resent and try to render moot at any opportunity. They were conducting an investigation, trying to gather evidence of a crime, and so they ignore the rules and hope that their case stands up..if it does not, they lose nothing and still have made their bust. Cops care nothing about the shredding of constitutional rights or what effect their refusal to accept boundaries has on the people and the law.

    Standard procedure means that these cops always ignore curtilage requirements and simply snoop until they get what they want, typical but thankfully not yet ignored by the courts as a violation of the warrant requirement. I know someone who has a 12 foot fence around his property, and the only way to contact the residence is if you know the phone number..or wish to hail with a bullhorn and hope you are heard. One can well imagine cops today simply cutting the lock or climbing the fence to conduct a knock and talk, later insisting that since people must SOMEHOW enter and leave the residence at some point that they have an absolute right to create a path to the door , despite obstacles..nothing would suprise me anymore, especially police assumptions that their authority allows them to do anything they want and face no consequences later excepting the loss of a case..in the meanwhile they have violated rights and denigrated the system.

    Soon there will be no privacy expectations allowed in the interest of letting cops run amok with their warrantless approaches..fishing expeditions like knock and talk are no more than cops without legal grounds hoping some ignorant resident will crack their door open and let the cops falsely claim they ” smelled pot” to justify an all out intrusion without a warrant.
    Homeownders are NOT required to open their door or speak to the cops, but no doubt the fact that the cops believe someone is home will give them the excuse to approach other doors hoping someone will open one and or speak to them and give them what they seek but could not get without treachery and intrusion…what a sick system we have.

    • I agree with Ritchie, no matter what the cops do, up to and including murder (as in the case of Peyton Strickland in Wilmington several years ago) nothing is going to happen to them. So, they get on a power trip which the court system approves of and all justice is lost.. Not only that, all they have to do is lie in court and at the District Court level the Judge believes them.

  5. If someone is home and wishes to exercise their rights to NOT answer the door when cops come knocking, why does that give them the ability to invade the curtilage to knock on the back door? It is coercion when cops refuse to accept a residents decision to remain inside and ignore the cops and instead go to the back to bother the resident until he or she gives in to stop the pounding. If the cops believe that someone is home, and they get no answer to a knock, they should go away and assume that their presence is noted and that the resident does not wish to give up their right to refuse to answer the door. The excuse that someone is home means that cop will not take No for an answer, thus violating the rights of the resident to refuse to answer. Repeated knocking and a prolonged presence by cops takes away the meaning of a refusal. No salesman would go around to the back just because they thought someone was home, and neither should cops…unreal how much liberty we lose every day.

  6. […] blogged before about whether law enforcement officers may go to a side door, or the back door, when attempting to […]

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