Chapter 17: Entering Yards and Driveways
When Trespassing is a “Search”
Unless an exception applies, an officer’s act of walking onto private residential property constitutes a “search” of the premises if—as is usually the case—the purpose of the entry was to obtain evidence. See Chapter 59 Standing.
Exceptions
Implied Consent: Although an entry into a person’s yards and driveways constitutes a search, it is a legal search if (1) officers entered only those areas to which visitors had been given implied authorization to enter, and (2) they restricted their activities to those that reasonably appeared to be authorized by the occupants.
(1) Implied authorization to enter: In determining whether officers had implied consent to enter a certain portion of the property, the following circumstances are relevant
Walking on normal access routes: Like anyone else, officers are impliedly authorized to walk on normal access routes to the front door for the purpose of speaking with a resident; e.g., walking on a dedicated pathway.[1]
Departing from normal access routes: In the past, the courts would rule that officers could depart somewhat from a normal access route if the departure was neither substantial nor unreasonable.[2] It now appears that a significant departure is not impliedly authorized.[3]
Walking to alternate entrance: If it reasonably appeared that visitors were impliedly invited to contact the residents at two or more doors, officers may walk to any of them.[4]
“No Trespassing” signs: Although a relevant circumstance, signs are seldom viewed as restricting access to the front door.[5]
Entering side yards: Unless there was a normal access route along the side of the house, an entry there may constitute an illegal search.[6]
Entering backyards: An entry into a backyard will usually constitute an illegal search because privacy expectations in most backyards are usually very high and because backyards are seldom visible to the public, normal access routes seldom go through them, and backyards are usually surrounded by fencing.[7] However, an entry might be lawful if the physical layout or other circumstances made it reasonable for officers to believe that visitors were permitted to use the yard to contact the occupants.[8]
Entering “Open Fields”: A search does not result if the officers’ entry was limited to so-called open fields. See Chapter 37 Physical Surveillance (Walking on Suspect’s Property, from “open fields”).
Entering storage facility: A person who rents storage space does not ordinarily have a reasonable expectation of property as to common spaces in the facility.[9]
(2) Restricted activities: Even if officers entered by way of a normal access route, they do not have implied consent to engage in conduct that was beyond that which residents would normally expect from visitors; e.g., large number of officers, officers noisy or aggressive, officers remained too long without obtaining consent, officers attached a tracking device to a vehicle, officers conducted an investigation without obtaining consent, officers walked a K9 to the house to check for drugs.[10] Compare Knock and Talks: See Chapter 54 Knock and Talks (Homes: Entering Yards and Driveways).
Exigent circumstances: There were exigent circumstances; e.g., hot pursuit, imminent destruction of evidence. See Chapter 19 Exigent Circumstance Searches (Types of Exigent Circumstances).
Overriding public interest: The intrusiveness of the trespass was outweighed by the public interest that was served by it; e.g., hot pursuit, exigent circumstances. See Chapter 19 Exigent Circumstance Searches.
Abandonment: Officers reasonably believed the premises had been abandoned. See Chapter 59 Standing (Abandonment).
Knock and talks: See Chapter 54 Knock and Talks.
“Standing” issue: Even if a warrantless entry constituted a search, a resident may lack standing to challenge the entry. However, the Supreme Court has not decided this issue.[11] Also see Chapter 59 Standing.
Notes
[1] USSC: Florida v. Jardines (2013) 569 US 1, 8 [“We have accordingly recognized that the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds. This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.”]. CAL: P v. Lujano (2014) 229 CA4 175, 184 [“any door-to-door salesman would reasonably have taken the same approach to the house”; i.e., via the driveway]; P v. Chavez (2008) 161 CA4 1493, 1500 [“It is clear that police with legitimate business may enter areas of the curtilage which are impliedly open, such as access routes to the house.”]; P v. Williams (2017) 15 CA5 111, 121; P v. Camacho (2000) 23 C4 824, 832 [“public pathways or other invitations to the public to enter upon the property” may defeat standing]. OTHER: US v. Mumme (1C 2021) 985 F3 25, 40 [“the officers had an implied license to approach the home and request an opportunity to speak with Mumme”]; US v. Bearden (8C 2015) 780 F3 887, 894 [“Both officers testified they believed the south side of the house, which had a door and carport, was the front of the house.”]; US v. Bausby (8C 2013) 720 F3 652, 656 [“a visitor who wished to approach the front door of the residence would have to enter the fenced front yard first”]; US v. Shuck (10C 2013) 713 F3 563, 567 [“The portion of the curtilage that is the normal route of access for anyone visiting the premises is only a semi-private area on which police may set foot it they restrict their movements to places visitors could be expected to go.”]; US v. Robbins (8C 2012) 682 F3 1111, 1116 [normal access route included “the driveway and an open gate to the front door”]; US v. Titemore (2C 2006) 437 F3 251, 259 [although the suspect’s porch was within the cartilage, it constituted “part of the principal entranceway, which has associated with it a diminished expectation of privacy.”]; US v. McDowell (10C 2013) 713 F3 571, 572 [in applying Jardines, the court ruled that an officer who walked across the driveway of McDowell’s home did not violate Jardines because, “in order to reach the sidewalk leading to the front door, [the officer] had to cross the driveway”]. COMPARE: Collins v. Virginia (2018) __ US __ [138 S.Ct. 1663] [although visitors needed to use the front part of the driveway to access the front door, the officer continued on into the back part which rendered the entry of that part an unlawful search].
[2] CAL: P v. Thompson (1990) 221 CA3 923, 943 [“a substantial and unreasonable departure from such an area, or a particularly intrusive method of viewing, will exceed the scope of the implied invitation and intrude upon a constitutionally protected expectation of privacy”]; Lorenzana v. Superior Court (1973) 9 C3 626, 636 [looking through window was unlawful because the officers were standing “a scant six inches from the window” that was not on a normal access route, and they had to traverse bushes that constituted a “significant hindrance”]; P v. Camacho (2000) 23 C4 824, 837 [“When [the officers] peered into defendant’s home through his window, they were standing in a place to which neither they nor the public had been invited.”]; Pate v. Muni Court (1970) 11 CA3 721, 724 [unreasonable departure occurred when the officer “climbed upon the ornamental trellis to look into appellant’s room through the accidental aperture”]. 9th CIR: US v. Perea-Rey (9C 2012) 680 F3 1179, 1188 [“An officer initiating a knock and talk visit may approach any part of the building where uninvited visitors could be expected.”]; US v. Garcia (9C 1993) 997 F2 1273, 1279 [“officers must sometimes move away from the front door when they are attempting to contact the occupants of a residence”]. OTHER: US v. Walker (11C 2015) 799 F3 1361, 1364 [“The carport was located right next to the house and the officers entered it because they had reason to believe the house’s occupant was sitting in the car parked inside.”]; US v. Taylor (4C 1996) 90 F3 903 [“search” did not result when “officers proceeded from the driveway, crossed the lawn, and climbed the stairs of the front porch” and from there saw incriminating evidence through a picture window].
[3] USSC: Florida v. Jardines (2013) 569 US 1, 7 [“an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares”].
[4] 9th CIR: US v. Perea-Rey (9C 2012) 680 F3 1179, 1188 [“Officers conducting a knock and talk also need not approach only a specific door if there are multiple doors accessible to the public.”]. OTHER: US v. Robbins (8C 2012) 682 F3 1111, 1116 [“Where officers acting in furtherance of a legitimate law enforcement objective develop a reasonable belief that someone is present in the home, they are justified in proceeding to an alternative entrance following an unsuccessful knock at the front door.”]; US v. Anderson (8C 1977) 552 F2 1296, 1300 [“We cannot say that the agents’ action in proceeding to the rear after receiving no answer at the front door was not incompatible with the scope of their original purpose that any evidence inadvertently seen by them must be excluded”]. BUT ALSO SEE: P v. Winters (1983) 149 CA3 705, 708 [“The officers [who, according to the court, were only conducting a ‘routine investigation’] could have determined at the front door no one was at home… By trespassing into the back yard, they surpassed what was reasonable under the circumstances.”].
[5] USSC: Oliver v. US (1984) 466 US 170, 182, fn.13 [“Certainly the Framers did not intend that the Fourth Amendment should shelter criminal activity wherever persons with criminal intent choose to erect barriers and post ‘No Trespassing’ signs.”]; New York v. Class (1986) 475 US 106, 114 [“efforts to restrict access to an area do not generate a reasonable expectation of privacy where none would otherwise exist”]; California v. Ciraolo (1986) 476 US 207, 213 [“Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible.”]. OTHER: US v. Coleman (6C 2019) 923 F3 450, 455 [“Though the condominium complex had a “PRIVATE PROPERTY” sign at its entrance, anyone could drive into the complex without express permission”]; US v. Raines (8C 2001) 243 F3 419, 421 [no Fourth Amendment violation when officers, while walking down the defendant’s driveway, walked through a 10-foot wide opening in a “makeshift fence of debris that encircled [the defendant’s] property.”]; US v. Ventling (8C 1982) 678 F2 63, 66 [trial court: “The presence of ‘no trespassing’ signs in this country without a locked or closed gate make the entry along the driveway for the purposes above described not a trespass and therefore does not constitute an intrusion prohibited by the Fourth Amendment.”]; US v. Reyes (2C 2002) 283 F3 446 [no reasonable expectation of privacy on a driveway with “a chain hanging from two posts across a portion of the driveway; it did not extend the full width of the driveway”]; US v. Carloss (10C 2016) 818 F3 988, 995 [“‘No Trespassing’ signs would not have conveyed to an objective officer that he could not approach the house and knock on the front door seeking to have a consensual conversation with the occupants.”].
[6] CAL: P v. Camacho (2000) 23 C4 824, 836 [“Most persons, we believe, would be surprised, indeed startled, to look out their bedroom window at such an hour to find police officers standing in their yard looking back at them.”]; Lorenzana v. Superior Court (1973) 9 C3 626; P v. Gemmill (2008) 162 CA4 958, 966 [“No substantial evidence supported an implied invitation to be on the east side of the house where the officer looked through the window.”]. OTHER: US v. James (7C 1994) 40 F3 850 [officers walked on “a paved walkway along the side of the duplex leading to the rear side door. The passage to the rear side door was not impeded by a gate or fence. Both the paved walkway and the rear side door were accessible to the general public and the rear side door was commonly used for entering the duplex from the nearby alley.”]. COMPARE: P v. Chavez (2008) 161 CA4 1493, 1500 [“The officer walked on the paved walkway only a short distance from the front door to the side gate.”].
[7] CAL: P v. Winters (1983) 149 CA3 705, 707 [“A person who surrounds his backyard with a fence and limits entry with a gate, locked or unlocked, has shown a reasonable expectation of privacy.”]; P v. Lovelace (1981) 116 CA3 541, 548 [occupants had a reasonable expectation of privacy because the fence surrounding the backyard “was repaired and tightened up in order to shield the backyard from public view”]; P v. Cagle (1971) 21 CA3 57, 65 [“The bathroom was at the rear of the house, situated far from all normal access routes.”]; Vidaurri v. Superior Court (1970) 13 CA3 550, 553 [“a person who surrounds his back yard with a fence, and limits entry with a gate, locked or unlocked, has shown a reasonable expectation of privacy for that area”]. ALSO SEE: US v. Mathias (8C 2013) 721 F3 952, 958 [“although Mathias had a subjective expectation of privacy in the back yard, the gaps in the fence, through which the back yard could be seen unaided, rendered the expectation not one society is willing to recognize as reasonable”].
[8] USSC: Carroll v. Carman (2014) 574 US 13, 18.
[9] OTHER: US v. McKenzie (2C 2021) 13 F4 223,233 [“the canine sniff outside the closed door to Unit 296 did not violate McKenzie’s constitutional rights because it was not a search”].
[10] USSC: Collins v. Virginia (2018) __ US __ [138 S.Ct. 1663, 1671] [“In physically intruding on the curtilage of Collins’ home to search the motorcycle, Officer Rhodes not only invaded Collins’ Fourth Amendment interest in the item searched, i.e., the motorcycle, but also invaded Collins’ Fourth Amendment interest in the curtilage of his home.”]; Florida v. Jardines (2013) 569 US 1, 9, fn.4] [“But no one is impliedly invited to enter the protected premises of the home in order to do nothing but conduct a search.”]; US v. Jones (2012) 565 US 400, 409. 9th CIR: US v. Perea-Rey (9C 2012) 680 F3 1179, 1188 [“It was not objectively reasonable as part of a knock and talk for Agent Trujillo to bypass the front door … and intrude into an area of the curtilage where uninvited visitors would not be expected to appear.”]. OTHER: US v. McKenzie (2C 2021) 13 F4 223, 232 [“A canine sniff outside a residence can be considered a search within the meaning of the Fourth Amendment”]; Morgan v. Fairfield County (6C 2018) 903 F3 553, 563 [“the officers’ right to enter property like any other visitor comes with the same limits of that ‘traditional invitation'”; here, the officers had no invitation to enter the suspect’s yards and surround his house].
[11] USSC: Florida v. Jardines (2013) 569 US 1, 11 [“we need not decide whether the officers’ investigation of Jardines’ home [entering his driveway] violated his expectation of privacy under Katz“].