The Fourth Amendment and "no trespassing" signs

(Wilfredo Lee/Associated Press)

In Florida v. Jardines (2013), the U.S. Supreme Court held that a front porch is a Fourth Amendment protected area but that there is an "implied license" allowing the police to walk up to the front door and knock in at least some cases. If the police are just coming to talk to the homeowner, the court concluded, that's within the implied license and no Fourth Amendment search occurs. Homeowners implicitly consent to people coming to knock on the door and talk to them; that's why they have doorbells. On the other hand, if the police are bringing a drug sniffing dog to smell for drugs, that is outside the implied license. People don't implicitly consent to people coming to search them, and bringing a drug-sniffing dog to the front porch is a clear objective sign that the officers intend to search them. Coming to the front porch with a drug-sniffing dog is therefore a search, and the police ordinarily can't do that without a warrant.

Now consider this question: How does Jardines apply when properties have "no trespassing" signs posted? The problem is identifying the test for determining whether a posted sign revokes the implied license to approach the door and knock. To my mind, the key is that the basic nature of Jardines's "implied license" test is ambiguous. On one hand, you can construe that test as asking a factual question akin to implied consent: Did the person at the home impliedly welcome visitors to enter the curtilage? Alternatively, you can construe the test as asking a general social norms question: As a matter of law, do residents of homes generally grant an implied license to come up to the front door and knock? Jardines isn't clear on which understanding of the implied license is correct.

In light of the uncertainty, I thought I would point out the latest decision on the Fourth Amendment implications of "no trespassing" signs: State v. Christensen, from the Tennessee Supreme Court. The case has a pretty through discussion of how different courts have treated the issue. Here's how the court summarizes the question, with paragraph breaks added and some citations omitted:

Given the Supreme Court's recognition that "the knocker on the front door is treated as an invitation or license to attempt an entry," Jardines, 133 S. Ct. at 1415 [emphasis added; quotation marks omitted], it is axiomatic that a homeowner may take actions to revoke or otherwise limit that invitation or license. As elucidated by the United States District Court for the Middle District of Florida [in United States v. Holmes, 143 F. Supp. 3d 1252, 1259 (M.D. Fla. 2015):

[T]he license granted to enter property to knock on a person's door is not unlimited. Rather, it extends unless and until the homeowner provides "express orders" to the contrary. In determining the scope of the implied license, and therefore whether a police officer's approach to the front door was permissible under the Fourth Amendment, courts ask whether a reasonable person could do as the police did. Factors that may aid in the analysis include the appearance of the property, whether entry might cause a resident alarm, what ordinary visitors would be expected to do, and what a reasonably respectful citizen would be expected to do.

The question before us in this case is whether posting "No Trespassing" signs near an unobstructed driveway is an express order sufficient to revoke or limit the invitation/license such that a police officer may not legitimately approach the residence via the driveway in order to conduct a warrantless knock-and-talk encounter. That is, did the Defendant's signs turn the investigators' entry onto his property into an intrusion subject to constitutional protections?

The court goes over the very large body of case law on the question, much of it pre-Jardines and some of it post-Jardines, which reflects a range of somewhat different legal standards. The court ends up adopting a standard offered by Chief Judge Timothy Tymkovich in a concurring opinion in United States v. Carloss, 818 F.3d 988 (10th Cir. 2016), a case that has drawn considerable attention recently because of the dissent filed by now-Justice Gorsuch. The standard adopted is this: "under the totality of the circumstances, would an objectively reasonable person conclude that entry onto the Defendant's driveway was categorically barred?"

The court concludes that under this test, a "no trespassing" sign ordinarily doesn't have much Fourth Amendment significance:

In short, a homeowner who posts a "No Trespassing" sign is simply making explicit what the law already recognizes: that persons entering onto another person's land must have a legitimate reason for doing so or risk being held civilly, or perhaps even criminally, liable for trespass. Consequently, as set forth above, a knock-and-talk conducted within constitutional parameters is a legitimate reason for police officers to enter the curtilage of a house via a driveway that is obstructed by nothing more than several "No Trespassing" signs. For this reason, we disagree with the dissent that "a 'No Trespassing' sign should be of particular significance to law enforcement officers in communicating that they may need to obtain a warrant before entering the property." Officers engaging in legitimate police business will conclude, correctly, that they are not engaging in a "trespass" when they approach a front door to conduct a knock-and-talk. We also emphasize that the occupant of a residence is under no obligation to open a door when knocked upon by a police officer who holds no warrant.

Justice Lee dissented. From the dissent:

Mr. Christensen sufficiently revoked the public's implied license to enter his property by posting multiple "No Trespassing" and "Private Property" signs near the entrance to his driveway. A person need not have a law degree or an understanding of the various legal nuances of trespass discussed by the Court to know that these signs meant visitors were not welcome. Ms. Tammy Atkins, who visited homes in the area to share her faith, understood the meaning of the signs. She testified there were several "No Trespassing" signs near Mr. Christensen's driveway, and she did not go to houses that had "No Trespassing" signs. . . .

Mr. Christensen did not just post one "No Trespassing" sign—he posted multiple signs near the entrance to his property that were clear, unambiguous, and obvious to anyone approaching his driveway. These signs adequately communicated Mr. Christensen's intent to revoke the implied license to enter his property. Under the facts of this case, law enforcement officers should have heeded the signs and taken the appropriate steps to obtain a search warrant.

I don't have particular views as to which approach is right, but it's an interesting question that may be headed up to the U.S. Supreme Court before too long.

I should also flag that law professors Andrew Ferguson and Stephen Henderson have had some fun with the issue and proposed some possible signs for homeowners to post to maximize their Fourth Amendment rights.

As always, stay tuned.