At the end of my driveway, there is a sign that says “private.” I despise people driving up to the house unannounced and uninvited. I like my privacy, the quiet of the birds and critters. And yet, people routinely ignore the sign. If I’m around, I greet them unpleasantly, asking why they thought the sign didn’t apply to them.
At Volokh Conspiracy, Orin Kerr raised a very interesting question following on the heels of the Supreme Court’s decision in Florida v. Jardines, where the Court “indicated that a police officer’s right to walk up to a front door of a person’s home is subject to an implied license based on existing social norms,” but that the approach with a drug-sniffing dog went a step too far. But if the approach, sans Fido, is based on an “implied license based on existing social norms,” then what if the homeowner posts a “no trespassing” sign?
In United States v. Denim, 2013 WL 4591469 (E.D.Tenn. August 28, 2013), the district court (adopting the magistrate judge’s R&R) held that “no trespassing signs” do not revoke the implied license and that officers can approach the front door and knock on the door despite the signs:
It is defendant’s argument that his No Trespassing signs constituted an explicit revocation of the implied license discussed by Justice Scalia.
Respectfully, that argument stretches the Jardines opinion too far. Justice Scalia went on to say that there was no societal implied invitation for anyone to bring a drug-sniffing dog onto the curtilage. For this court to conclude that No Trespassing signs amount to an across-the-board revocation of the implied societal consent necessarily would require a court to conclude that society is ready to recognize as reasonable the expectation of privacy which that revocation entails.
While there appears to be no rational basis for this assertion, other than the court had to reach a decision and this was the decision reached, the implication is ultimately made clear:
A crime is a crime, and the police are allowed to enter upon property to conduct a knock and talk. If the resident is unwilling to talk, that ends it, but most citizens assuredly would be willing to talk to a police officer, and this is why society is not prepared to go as far as defendant asks in this case.
There is no empirical basis for the statement that “most citizens assuredly would be willing to talk to a police officer,” though based on the number of people questioned by police and who respond, it would certainly seem anecdotally sound.
The court, however, includes the word “willing,” and while that may be the view from the bench, I seriously doubt that “most people” do so willingly, at least not in the sense that they think they have a choice in the matter while escaping unscathed. Orin similarly questions the conclusion, offering a host of questions but not too many answers:
The Denim court applies the Katz “reasonable expectation of privacy” test. And it does so in a weird way, by asking whether “society” would accept as reasonable the specific application of a rule to the facts before the court rather than whether the expectation of privacy in the protected space is reasonable generally. But this seems hard to square with Jardines, as Jardines was not based on Katz at all. The Supreme Court in Jardines applied the trespass/physical intrusion test that is the alternative test for a “search.” The Katz test is irrelevant to the Jardines analysis.
So if Denim is just plain doctrinally wrong, which is “assuredly” the case, it raises some really interesting possibilities for attacking the police approach to a house on property marked “no trespassing.”
The question may turn on whether this “implied license,” of which Nino spoke in Jardines, exists as a matter of law or fact. Is there now, as a matter of law, a right to stroll up to any house of your choosing and ignore the sign that says “trespassers will be shot on sight?”
One question is whether, if societal expectations are the genesis of this “implied license,” a property owner has the authority to revoke it? Did Scalia really mean that property rights are now subject to societal norms (at least as he sees them), with owners no longer in control of who gets to drive onto their property? Do they get to have picnics on the lawn if no one is home and they decide to wait until someone is around to answer their knock?
What makes the Denim decision untenable, of course, is that the justification for refusing to honor the restriction on this “implied license” is their elevation of the cops’ authority to knock and talk over the property owner’s right to tell the police to get off his lawn (or porch, as the case might be). Not only is knock and talk a nefarious and abusive fiction, but there is no “authority” to use this gimmick in the first place. Rather, it’s a sophist’s game to circumvent the Fourth Amendment with a judicial wink. It’s something to be tolerated because it can’t be stopped, not something to be elevated to a critical tool in the battle between good and evil.
Now that Jardines holds that the pre-Katz (even though there was no such thing before Katz) trespass basis to invoke the Fourth Amendment’s prohibitions against police, the existence of “no trespassing” signs or any indication that the “implied license” has been revoked and the homeowner has availed himself of his right to privacy, should be asserted as a basis to suppress.
When I say “private,” I mean private. And that means you.