Trespass and the 4th Amendment, Objective and Subjective Factors0
September 27, 2022 by Tom Roberts, Esq.
Question - If I tell the police officer without a search warrant to get off my front porch and to get off of my property, does the police officer violate the law when he refuses to do so?
The United States Supreme Court has clearly established that trespass laws play a far more important role in understanding the 4th Amendment restraints than prior courts held.
The U.S. Supreme Court previously held (1) that the threshold of a home is not a protected area when voluntarily exposed, U.S. v Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976), and (2) open land not otherwise subject to a reasonable expectation of privacy is not made so by the presence of a no trespassing sign, even if the investigating officer sees it. Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984).
However, the U.S. Supreme Court clarified the intersection of objectively reasonable and subjective intent of officers in connection with the 4th Amendment against the backdrop of implied consent, in the case of Florida v Jardines, 569 U.S. 1, 8, 133 S. Ct. 1409, 1415-16 (2013). In pertinent part, the court stated,
“A license may be implied from the habits of the country,” notwithstanding the “strict rule of the English common law as to entry upon a close.” McKee v. Gratz, 260 U.S. 127, 136, 43 S. Ct. 16, 67 L. Ed. 167 (1922) (Holmes, J.). 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.” Breard v. Alexandria, 341 U.S. 622, 626, 71 S. Ct. 920, 95 L. Ed. 1233, 62 Ohio Law Abs. 210 (1951). 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. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” Kentucky v. King, 563 U.S. 452, 469, 131 S. Ct. 1849, 179 L. Ed. 2d 865, 881 (2011).
Florida v. Jardines, 569 U.S. 1, 8, 133 S. Ct. 1409, 1415-16 (2013)(emphasis added).
“Whether the search is objectively reasonable, depends upon whether the officers had an implied license to enter, which in turn depends upon the purpose for which they entered.”
The court explained that what is reasonable is based upon the habits of the community. If it’s not reasonable for the salesman, or your neighbor to stand on your porch with a drug dog to sniff out the air, or to use listening or optical devices to get a better peak, then an officer cannot do the same. The court explains that when determining whether the search is objectively reasonable, depends upon whether the officers had an implied license to enter, which in turn depends upon the purpose for which they entered. The court stated,
But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to–well, call the police. The scope of a license–express or implied–is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.
The State points to our decisions holding that the subjective intent of the officer is irrelevant. See Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011); Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). But those cases merely hold that a stop or search that is objectively reasonable is not vitiated by the fact that the officer’s real reason for making the stop or search has nothing to do with the validating reason. Thus, the defendant will not be heard to complain that although he was speeding the officer’s real reason for the stop was racial harassment. See id., at 810, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89. Here, however, the question before the Court is precisely whether the officer’s conduct was an objectively reasonable search. As we have described, that depends upon whether the officers had an implied license to enter the porch, which in turn depends upon the purpose for which they entered. Here, their behavior objectively reveals a purpose to conduct a search, which is not what anyone would think he had license to do.
Florida v. Jardines, 569 U.S. 1, 9, 133 S. Ct. 1409, 1416-17 (2013)(emphasis added)
Virginia ignored the foundational property right principles adopting a “law-given right, rather than an owner-consensual right” when addressing police officers banned from a commercial property
It may be time for Virginia to revisit its opinion in Parker v McCoy, 2012, Va 808 (1972) in light of Florida v. Jardines, 569 U.S. 1, 10, 133 S. Ct. 1409, 1416-17 (2013). The Virginia Supreme Court stated in 1972, that a police officer’s right to enter a business establishment open to the public to observe what at least is not hidden from view in the establishment is a “law-given right, rather than an owner-consensual right.” Parker v. McCoy, 212 Va. 808, 811, 188 S.E.2d 222, 224-25 (1972)(emphasis added) The reasoning behind this flies in the face of the individual liberties and property rights upon which this country was founded. The better reasoned case of Florida v Jardines, 569 U.S. 1, 9, 133 S. Ct. 1409, 1416-17 (2013), albeit, dealing with a home rather than a business, nonetheless, recognizes the private ownership rights and looks at the property owner’s invitation whether express or implied to determine the right of the officer without a warrant. Recognizing that the protections of the 4th Amendment are at the highest when considering the home, it does not diminish the fact that a business’ interest is also protected by the 4th Amendment. The Fourth Amendment, in fact, was a direct response to the colonists’ objection to searches of homes under general warrants or without warrants. See Chimel v. California, 395 U.S. 752, 761 (1969); Harris v. United States, 331 U.S. 145, 157-163 (1947) [The] ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,'” quoting United States v. United States District Court, 407 U.S. 297, 313 (1972)); United States v. Karo, 468 U.S. 705, 714-715 (1984)(“Searches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances”) Businesses are unquestionably entitled to Fourth Amendment protection, yet the court has “recognized that a business, by its special nature and voluntary existence, may open itself to intrusions that would not be permissible in a purely private context.” G. M. Leasing Corp. v. United States, 429 U.S. 338, 353 1977). The clearly established law from the U.S. Supreme Court states “The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property.” See v. Seattle, 387 U.S. 541, 543, 87 S. Ct. 1737, 1739 (1967). In See, the court stated, “We therefore conclude that administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure.” See v. Seattle, 387 U.S. 541, 545, 87 S. Ct. 1737, 1740 (1967). In short, in a regulated business, the courts recognize the right of administrative entry by inspectors tasked with enforcement of regulations upon business to enter the public areas — but did not authorize police officers in general to snoop about after being directed to leave the business premises.
That would put the situation squarely back to the law set out by Florida v Jardines:
Here, however, the question before the Court is precisely whether the officer’s conduct was an objectively reasonable search. As we have described, that depends upon whether the officers had an implied license to enter the porch, which in turn depends upon the purpose for which they entered. Here, their behavior objectively reveals a purpose to conduct a search, which is not what anyone would think he had license to do.
Florida v. Jardines, 569 U.S. 1, 9, 133 S. Ct. 1409, 1416-17 (2013)(emphasis added).
The materials are prepared for information purposes only. The materials are not legal advice. You should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.
Thomas H. Roberts & Associates, P.C.
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Category General | Tags: 4th amendment, objective reasonableness versus subjective intent, police on my property, police won't leave my property, trespass by police
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