The Uninvited

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.

19 thoughts on “The Uninvited

  1. Mark Lyon

    There was a reddit post a while back entitled “So my neighbor put a lock on their fence…” that demonstrated one person’s solution to the problem – they installed a (rather expensive) double-sided cipher lock on their easy-to-jump entrance gate. It looks silly, but removes all doubt about whether access is permitted.

    1. SHG Post author

      I wonder what Nino would say about that? If a lock does it, why not a sign (unless he owns shares in a lock company, of course)?

    2. A Voice of Sanity

      Reminds me of this:

      “Mr. Simpson was not at home, but Detective Fuhrman found blood spots on Mr. Simpson’s car, a white Ford Bronco, parked in front of the house. Concerned for Mr. Simpson’s safety, he and Detective Vannatter later said, Detective Fuhrman leapt a fence and opened a gate to let the other detectives onto the property. Shortly thereafter, Detective Fuhrman found a piece of evidence that was featured crucially in the trial — a bloody glove. (A matching glove had been found at the crime scene.)”

      “Leapt a fence and opened a gate to let the other detectives onto the property.”

      You just can’t keep the little buggers out, can you? Maybe hiring former East German border guards would do it?

  2. Nick

    “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.”

    I disagree even with anecdote. Most soon to be defendants talk to the police because they think they have to — if they don’t they will just be arrested or look guilty. In fact, i’d argue that most interactions with police by normal people are tinged by fear. At least anything beyond a “how are you doing” as one holds a door open for another at a coffee shop. I don’t think with the authority imbalance and lack of knowledge, a “consensual contact” can ever be truly “willing.”

    Now, Anton Scalia doesn’t have this fear. he is a wealthy, older white male who knows his rights, and also almost certainly knows in the back of his head that any cop who messes with him without dotting every “i” will be working the property room for the next 20 years. Which, of course, is the problem with most of the Supremes, is that they have forgotten that as elites, their recent life experience is nothing like that of the people they judge.

    1. SHG Post author

      That’s why I separated “willing” from the balance of the statement. Though I’m inclined to believe that a poor, black Supreme Court Justice may still feel differently than the people he judges.

      1. Fubar

        Little would more certainly bring a judicial reassessment of the meaning of “willing” than an event that will never happen — some Justice, any Justice, gets jacked up on the street by an unwitting cop who responds to “Do you realize who I am?” with “Yeah right, puke, and I’m the King of Siam!”

        Not even a presidential invitation for the parties to share a beer would prevent the reassessment.

        It won’t happen, but one can dream. Or maybe that’s another felony these days.

        1. SHG Post author

          We had a bit of a preview of just such a thing when New York State Supreme Court (statewide trial level court) Justice Thomas Raffaele got nailed in the throat by a cop for looking ugly. You would have thought he would have learned a serious lesson, but instead he resorted to the “one bad apple” theory, since it only happened to him once.

          1. Fubar


            And to think I actually read your blog post on the incident last year.

            In mitigation, I did once hear a tale from a retired sheriff who expressed some change of heart after an unfortunate encounter with some brother LEOs a few years back. But that was far away from NY.

          2. Nick

            I am constantly amazed at persons who defend the cops with the “one bad apple” defense.
            It is like they’re missing the “spoils the whole bunch” part.

    1. SHG Post author

      Yes. But then, I maintain the public safety function as completely distinct from the law enforcement function, while both the police and courts have muddled the two. But still, yes.

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