case law update

“Knock and Talk” Okay, Despite “No Trespassing” Signage

“No Trespassing” signs do not per se prevent officers from conducting a knock and talk at a residence.

Investigating a tip that convicted felon Ralph Gene Carloss was unlawfully in possession of a firearm and was selling methamphetamine, law enforcement officers went to the single-family home where Carloss was staying. A “No Trespassing” sign was on a three-foot-high wooden post located beside the driveway, a “Private Property Not Trespassing” sign was tacked to a tree in the home’s side yard, and “Posted Private Property Hunting, Fishing, Trapping or Trespassing for Any Purpose Is Strictly Forbidden Violators Will Be Prosecuted” signs were on a wooden pole in the front yard and on the front door of the home.

When officers went to the home to speak with Carloss, they drove into the driveway, parked, walked to the front door, and knocked for several minutes. Heather Wilson exited the back door of the house, and Carloss followed shortly thereafter, and both spoke with the officers. Carloss permitted the officers to follow him into the home, and through a room that Carloss identified as his, so Carloss could ask the homeowner whether he consented to a search of the home. Upon entry, officers say drug paraphernalia and a white powder residue that appeared to be methamphetamine.

After the homeowner denied consent to search the house, officers obtained a search warrant based on what they saw in Carloss’s room. During the search pursuant to that warrant, officers found “multiple methamphetamine labs” and lab components, a loaded shotgun, two blasting caps, ammunition, and other drug paraphernalia. Carloss lost a motion to suppress the drug evidence against him and he subsequently entered a conditional plea for conspiring to possess pseudoephedrine. He then appealed the motion to suppress ruling to the U.S. Court of Appeals for the Tenth Circuit.

On appeal, Carloss contended, in part, that officers violated his Fourth Amendment right to be free of unreasonable searched and seizures when they approached his home and knocked on the front door, despite the “No Trespassing” signs posted around the home. The drug evidence was therefore fruit of the poisonous tree, he argued.

Carloss argued to the Tenth Circuit that the “No Trespassing” signs around the home revoked the implied license that the public had to approach the house and to knock on the front door. Writing separately, two of the Tenth Circuit’s three-judge panel disagreed with Carloss. Somewhat differing in their analysis, both judges concluded that “under the circumstances presented,” the “No Trespassing” signs placed about Carloss’s home would not have conveyed to an objective officer that he could not go to the front door and knock, seeking to speak consensually with Carloss.

To reach that conclusion, both judges reasoned that the mere presence of a “No Trespassing” sign is sufficient to convey to an objective officer, or member of the public, that he cannot go to the front door and knock. “Such signs, by themselves,” the lead opinion said, “do not have the talismanic quality Carloss attributes to them.”

Moreover, the lead opinion said, the yard was an “open field” and not curtilage, and it is well-stablished that “No Trespassing” signs will not prevent an officer from entering privately owned “open fields.” And regarding the posting on Carloss’s front door, forbidding certain recreational activities, the court held the sign was ambiguous and did not clearly revoke the implied license extended to members of the public to enter the home’s curtilage and to knock on the front door. Rather, that sign could be read to have meant that that the listed recreational activities would not be allowed on the property generally.

The concurrence forwent specific analysis and focused on the context of the signs, writing that, “[i]n a residential context, the intention of the homeowner who posts signs, without more, seems inadequate to revoke the [implied] license.” Applied to Carloss’s case, the concurrence noted the absence of any fence or other physical obstruction to remove ambiguity from the “No Trespassing” signs to make clear that visitors were not allowed, noting that “numerosity alone does not eliminate the ambiguity.”

Thus, a majority of the appellate court held the four “No Trespassing” signs around were insufficient to revoke the implied license for officers to attempt a “knock and talk” at Carloss’s residence. For this and other reasons addressed in the lead opinion, the Tenth Circuit affirmed the district court’s decision to deny Carloss’s motion to suppress.

Read the full case: United States v. Carloss

 


This case law update was written by James G. Heelan, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: case law update, james p. garay heelan

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