Shea posted here about a 2019 opinion from the Sixth Circuit holding that chalking tires for purposes of parking enforcement was a Fourth Amendment search and rejecting at least some of the proposed legal justifications for the practice. That case led to some further proceedings and eventually to a new opinion, Taylor v. City of Saginaw, Michigan, 11 F.4th 483 (6th Cir. 2021), holding that the suspicionless chalking of tires (1) is a search, (2) is not justified as a community caretaking function, and (3) is not justified as an administrative search. The Taylor court ruled that the law was not previously clearly established, so the parking officer whose conduct was at issue was entitled to qualified immunity. But going forward, warrantless tire chalking is a no-no in the Sixth Circuit. Now another circuit has weighed in with a different perspective. Continue reading
Tag Archives: trespass
A person commits first-degree trespass when he or she “without authorization . . . enters or remains . . . in a building of another.” G.S. 14-159.12(a). But aren’t members of the public “authoriz[ed]” to enter public buildings? And given that public buildings belong to all of us, do they even count as buildings “of another”? In other words, is it possible to commit a trespass in a public building? Continue reading →
The Court of Appeals for the Sixth Circuit ruled last week that city parking enforcement officers’ use of chalk to mark the tires of parked vehicles to track how long they have been parked is a Fourth Amendment search. And, on the facts before it, the court held that the city failed to show that the search was reasonable.
I’ve been asked a few times about the meaning of purple bars painted on trees. At a recent class, someone showed me the relevant statute, which led me to learn a little more about it. This post lays out what I know. Continue reading →
The General Assembly recently passed, and the Governor recently signed, HB 2 (S.L. 2016-3), popularly known as “the bathroom bill.” This post considers whether it is now a crime for a transgendered person to use the bathroom of the sex with which he or she identifies. Continue reading →
The web has several stories about large retail stores banning people caught shoplifting from returning, sometimes for life, sometimes from all of the stores in the chain. Sometimes the incident prompting the ban goes to court, with the person convicted of shoplifting. Sometimes the store does not pursue criminal charges but rather has the person sign an agreement acknowledging that he or she is not permitted to come back. What happens if the person returns, reenters the store, and is caught shoplifting again? In some districts in North Carolina, the person is charged not with trespassing and shoplifting, both misdemeanors, but rather with felony breaking or entering under G.S. 14-54(a). I have reservations about whether the law supports this charge. Continue reading →
In Charlotte, there is a controversy over whether a transgendered person should use the bathroom assigned to his or her biological sex or to the sex with which he or she identifies. The Charlotte Observer has the story here. This post doesn’t address that issue directly, but instead concerns a related question that the story prompted me to ponder: is it illegal for a man to use the ladies’ room? Continue reading →
In United States v. Jones, 565 U.S. __ (2012), and Florida v. Jardines, 569 U.S. __ (2013), the Supreme Court announced a new, or perhaps revived an old, understanding of the Fourth Amendment that is closely tied to property rights and trespass. In Jones, the Court ruled that attaching a GPS tracking device to a suspect’s vehicle was a search because officers “physically occupied private property for the purpose of obtaining information.” In Jardines, the Court ruled that the implied invitation to approach the front door of a residence does not extend to an officer with a drug dog, so officers who went to the front porch of a suspect’s home with a canine conducted an “unlicensed physical intrusion.” In both cases, the Court resolved the question of whether the officers’ conduct was a Fourth Amendment search by focusing on property rights rather than on the existence of a reasonable expectation of privacy, though the Court made clear that the trespass test supplements, rather than replaces, the expectation of privacy framework announced in Katz v. United States, 389 U.S. 347 (1967).
The trespass theory of the Fourth Amendment could have a significant impact on the scope of officers’ knock and talk authority, as discussed below.
Limits on use of investigative techniques. Prior to Jones and Jardines, courts and commentators sometimes suggested that so long as officers remained on the entranceway to a residence, there could be no Fourth Amendment intrusion, because there is no reasonable expectation of privacy in the entranceway. See, e.g., United States v. Lakoskey, 462 F.3d 965 (8th Cir. 2006) (“[W]e will not extend [defendant’s] expectation of privacy to his driveway, walkway or front door area.”). But even if there is no reasonable expectation of privacy in an entranceway, and so no limit to what an officer may do in such an area under the Katz analysis, Jardines holds that an officer who engages in an investigative technique beyond what a social visitor is likely to do is a trespasser and so, absent a warrant or an exception to the warrant requirement, is in violation of the Fourth Amendment. As noted above, Jardines specifically ruled that bringing a drug dog on a knock and talk exceeds the scope of the implied license to approach a residence by a common entranceway, and so renders the entry a trespass and a Fourth Amendment search, but the rationale of Jardines is not limited to drug dogs. The majority opinion states that “exploring the front path with a metal detector” would likewise be outside the scope of the implied license. Another possible example is swabbing a drug suspect’s front doorknob for drug residue. As discussed in State v. Nielsen, 306 P.3d 875 (Utah Ct. App. 2013), courts have split over whether such activity constitutes a Fourth Amendment search. The argument that it is a search after Jardines is much stronger. Even an officer who bends down to examine the undercarriage of a vehicle parked in a suspect’s driveway might perhaps be viewed as exceeding the scope of the implied license. Cf. United States v. Pineda-Moreno, 617 F.3d 1120 (9th Cir. 2010) (Kozinski, J., dissenting from denial of rehearing en banc) (police placed a GPS tracking device on a suspect’s vehicle while it was parked in his driveway near his home; a panel of the Ninth Circuit ruled that the suspect had no reasonable expectation of privacy in the driveway because it was a common entranceway that might be used by visitors, delivery people, or neighborhood children; Chief Judge Kozinski argued that the fact that others might have access to an area for limited purposes doesn’t necessarily defeat the occupant’s expectation of privacy in the area altogether such that law enforcement officers have unfettered access to the area).
Furthermore, when a knock and talk is rendered a trespass under Jardines because it is joined with investigative activity not usually undertaken by social visitors, even information obtained by the officer’s casual observation rather than the investigative technique in question may be subject to exclusion. For example, if an officer sees marijuana plants through a window as he approaches a suspect’s home with a drug dog, there is a reasonable argument that the entire visit is a trespass and therefore a Fourth Amendment search, so that anything discovered during the visit is subject to suppression, even if it could have been discovered through a standard knock and talk.
Nighttime approaches. Jardines strongly suggests that knock and talks conducted late at night are searches under the Fourth Amendment. Previous knock and talk cases generally allowed the technique to be used during the nighttime. See, e.g., Scott v. State, 782 A.2d 862 (Md. 2001) (no Fourth Amendment violation where police “randomly knock[ed] on motel room doors at 11:30 p.m.” in the hopes of obtaining consent to search the rooms; the court indicated that the late hour was a factor in deciding whether a Fourth Amendment intrusion had taken place, but rejected any bright-line rule about late night knock-and-talks, and determined that the one at issue did not implicate the Fourth Amendment); State v. Whitaker, 2013 WL 3353334 (Tenn. Ct. Crim. App. June 28, 2013) (unpublished) (holding that a knock and talk conducted at 10:00 p.m. was not a seizure and stating that “[t]he fact that the encounter occurred at night does not per se invalidate a knock and talk, but it is instead a factor to be considered in conjunction with the other circumstances surrounding the encounter”). Cf. Luna-Martinez v. State, 984 So. 2d 592 (Fla. Ct. App. 2nd Dist. 2008) (ruling that a defendant’s consent to search obtained during a 3:00 a.m. knock and talk was given voluntarily and stating that although the late hour is a factor in analyzing the interaction between the police and a suspect, it does not carry great weight as “it is not unusual for the police in their investigative efforts to have late night encounters with individuals”). However, Jardines seems to indicate that the implied invitation that allows officers and others to approach dwellings’ front doors is not in place 24 hours per day. The Jardines dissent states that “as a general matter,” a visitor may not “come to the front door in the middle of the night without an express invitation.” Slip op. at 5. The majority suggests that the dissent is “quite right[]” on this issue, which would make a late night knock and talk a trespass and a Fourth Amendment search. Slip op. at 7 n.3.
This raises a number of practical questions, but the Court offers no guidance about how late is too late. Is 8:00 p.m. the cutoff? 9:00 p.m.? Nightfall? Does the answer vary based on local norms and customs? Is it relevant whether the officer knows the suspect tends to stay up late? Or that there is a light on in the dwelling when the officer approaches?
Duration. Finally, the Jardines majority states that there is an “implicit license [that] typically permits [a] visitor to approach [a] home by the front path, knock promptly, wait briefly to be received, and then (absent an invitation to linger longer), leave.” The Court’s admonition that the visitor must “knock promptly” and “wait briefly” for a response suggests that an officer who tarries too long during a knock and talk may violate the Fourth Amendment under the trespass theory. Again, there are unanswered practical questions here, like how many times an officer may knock and how quickly he or she must depart if no response is forthcoming.
As always, your thoughts and comments are welcome. Officers, are you approaching knock and talks differently post-Jardines? Lawyers, have you seen any of these issues litigated?
Suppose that Bob Boyfriend moves in with Gina Girlfriend. Bob lives in Gina’s apartment for several months. He isn’t on the lease and doesn’t pay rent, but he does buy most of the couple’s groceries and does a fair share of the cleaning and other household chores. The relationship sours, and Gina asks Bob to leave. Bob refuses. Gina goes to the magistrate’s office and asks the magistrate to issue an arrest warrant charging Bob with trespassing. Should the magistrate issue the warrant?
The answer depends on whether Bob is a tenant or a guest. If Bob is a tenant, then he may be “evicted, dispossessed or otherwise constructively or actually removed from his dwelling unit only in accordance with” the eviction procedures in Chapter 42 of the General Statutes. G.S. 42-25.6. In other words, as a Georgia court put it, a “person who lawfully occupies property as a tenant cannot be ejectedfrom the property through a prosecution for criminal trespass.” Williams v. State, 583 S.E.2d 172 (Ga. Ct. App. 2003). See also People v. Evans, 516 N.E.2d 817 (Ill. Ct. App. 1 Dist. 1987) (explaining that a tenant must be evicted rather than removed using the trespass statutes).
On the other hand, if Bob is just a long-term guest, then his failure to leave when told to do so is first-degree trespass under G.S. 14-159.12 (defining first-degree trespass to include when a person “without authorization . . . remains . . . [i]n a building of another”).
So, how do we know whether Bob is a tenant or a guest? We know that “[t]he payment of rent is not essential to the creation of a tenancy at will.” Williams, supra. But a tenant must make some regular contribution in exchange for the right to live in the residence. Note that many gracious long-term guests will make regular contributions to their hosts’ households, whether by buying groceries, mowing the lawn, or offering to babysit their hosts’ children. But such contributions do not turn the guests into tenants, any more than a dinner guest becomes a tenant because she brings a bottle of wine to show appreciation for her host. So, if Bob bought groceries and helped clean up because he was trying to be a considerate long-term guest, he was not a tenant. But if the parties — Bob and Gina — viewed the groceries and housework as Bob’s equivalent to rent, then Bob was a tenant.
There will be some cases in which it isn’t really clear whether a person is a guest or a tenant. The best that a magistrate can do it dig into the facts, including the nature and frequency of the contributions made by the person in question as well as any discussions the parties had about rent or tenancy. If that still leaves a murky situation, it may be best to err on the side of caution and use the summary ejectment procedures rather than trespass as a means of getting the person out of the residence.
I’ll conclude by noting that I’m not an expert on landlord-tenant law. Another take on some of these issues appears in this memo by the Charlotte-Mecklenburg Police Department. Check it out, and if you believe that my analysis above is incorrect or incomplete, please let me know or post a comment.
I was recently asked whether one spouse can properly be charged with larceny for stealing joint property from the other spouse. Apparently, this question comes up frequently with separated spouses. For example, assume that Harry and Sally are separated. Sally lives at the house they formerly shared, and Harry lives in an apartment nearby. If Harry comes to the house one day while Sally’s at work, and takes the BBQ grill from the back yard, has he committed a larceny?
Generally, the answer is no. If the BBQ grill is joint property, not Sally’s family heirloom that she had way before she met Harry, Harry has just as much right to it as Sally does, and if he wants to take it, he can. It isn’t a larceny because it isn’t the property of another. But there are some interesting caveats to that general rule.
1. Work-arounds. Sally can tell Harry, “don’t come on this property ever again,” and then Harry’s trespassing if he comes to get the BBQ grill. And even absent such an instruction, if Harry goes into the house, there’s likely a breaking or entering charge. So there are some things that Sally, as a practical matter, can do to keep Harry’s paws off the grill.
2. Separation agreements. If there’s a separation agreement in place that says that Sally gets the grill, then Harry’s definitely committing a larceny if he takes it. Cf. State v. Lindley, 81 N.C. App. 490 (1986).
3. Not playing nice. The most interesting and controversial exception is what I hereby term the “not playing nice” exception. If Harry’s not just taking the BBQ grill to use it — which, again, he’s entitled to do just as much as Sally is — but is taking the BBQ grill intending to (1) make it his own, exclusively, and thereby deprive Sally of her interest in it, or (2) destroy it in bad faith, several courts have sustained criminal charges. See, e.g., People v. Llamas, 51 Cal.App.4th 1729 (Cal. Ct. App. 4 Dist. 1997) (when one spouse “tak[es] . . . [property], even with the intent to temporarily deprive [the other] spouse of its use, the actor does not exceed his or her property right and the problem is properly viewed as a domestic and not a criminal one,” but when the spouse intends permanently to deprive the other spouse of the property, a crime has been committed); LaParle v. State, 957 P.2d 330 (Alaska Ct. App. 1998) (recognizing that “[i]n most instances, both spouses have equal right to possess, use, or dispose of marital property. Thus, one spouse’s unilateral decision to draw funds from a joint checking account or to give away or sell a marital possession normally will not constitute theft,” but finding otherwise where a husband secreted the contents of a marital checking account in anticipation of a divorce).
I confess that the cited cases aren’t from North Carolina. I don’t know of an in-state case on point, but nothing in the cited cases depends on distinctive features of the forum states’ laws. I suspect that in sufficiently compelling circumstances our appellate courts would rule similarly, though my impression is that some of my colleagues disagree. Even if I’m right, the exact contours of the “not playing nice” exception are unclear. If one separated spouse joins an ascetic cult and gives all the couple’s joint property to charity, is that OK? Time will tell.
