Can No Trespassing Signs Keep the Cops Away?

Posted September 9, 2013 in Crime Your Personal Rights by

"Absolutely no trespassing" sign

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A federal court in Tennessee has rejected a defendant’s argument that no trespassing signs he posted should have prevented the police from entering his property to talk to him.

Clifford Denim is facing charges for possession of firearms by a convicted felon, stemming from an incident earlier this year. After police officers in Hawkins County got a tip that he had purchased guns that were stolen from another man, they decided to pay him a visit.

Despite the six no trespassing signs posted up along Denim’s driveway, the cops knocked on Denim’s door. He admitted that he had bought the guns, gave them to the officers and then signed a Consent to Search which allowed them to come in and find other firearms in his possession.

Once he found himself rung up on federal charges, Denim tried to argue that police violated his rights by stepping onto his property in the first place, and all evidence against him should be thrown out. A district court rejected his assertion, however, meaning Denim will have to face the music.

 

Expectations of Privacy

Traditionally when it comes to police knock and talk cases, courts have relied on the reasonable expectation of privacy standard laid out in the 1967 Supreme Court opinion in Katz v. United States — absent a warrant or emergency circumstances, investigations can’t intrude on what a person would reasonably believe to be private from the general public. So the cops can approach a door and have a consensual conversation with a person, but they can’t enter the house without permission from either the resident or a judge.

Attorney Leslie A. Shoebotham headshot

Leslie A. Shoebotham

The Supreme Court added a new test in the 2012 decision United States v. Jones, holding that the Fourth Amendment blocks warrantless government intrusion on private property. In this year’s opinion in Florida v. Jardines, the court further clarified that law enforcement could go where the public has implied license to tread even on private property, such as to approach the front door of a house.

The question in Mr. Denim’s case is whether his no trespassing signs were enough to revoke that implied license.

In the past, signs have been considered insufficient to keep police off a property. “If you look back at the pre-Jardines cases, the courts are very resistant to the idea of a person putting up a no trespassing sign and creating some little island of privacy they can exclude law enforcement officers from,” says Leslie A. Shoebotham, a professor at the Loyola University College of Law.

However, there were some methods to keep the cops at bay. “They looked for other ways for the person to manifest their expectation of privacy, like a locked gate, a call box for a person to call in, or a sign with a telephone number. Guard dogs with signage to give notice to their presence,” Shoebotham says. “Only in those sort of cases would a person have evidence that law enforcement should not enter to do a knock and talk. Short of that it was difficult to evidence a legitimate expectation of privacy.”

 

Private Property

The judges in Denim’s case turned aside any notion that the private property argument  created in the Jones and Jardines cases added extra gravity to the importance of a sign. “Respectfully, that argument stretches the Jardines opinion too far,” the opinion states. “A crime is a crime, and the police are allowed to enter upon property to conduct a knock and talk.”

Denim might have been able to avoid or delay the charges if he had refused to speak with the officers, or at least did not admit that he was in possession of the guns. He certainly should not have given them consent to search his house.

He also might have had a better case on property trespass grounds if the gate to his driveway had been closed. “Some states have a statutory trespass action based upon crossing a closed gate that surrounds a dwelling place,” Shoebotham says. “It’s not necessarily a winner but you at least have a better argument after Jardines than you would have had prior.”

New case law could further clarify Fourth Amendment protections as courts continue to consider the private property argument, but for now it remains clear that a sign alone is not enough.

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