Do “No Trespassing” Signs Rescind the Invitation To the Public to Come to the Front Door?
by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: firstname.lastname@example.org
Suppose a police officer wants to go to a suspect’s residence to ask him a few questions (a procedure now referred to commonly as a “knock and talk” visit). As the officer approaches the property, he notices a large sign, just to the right of the driveway, that says “no trespassing.” May the officer continue on to the front door without a search warrant? The Tennessee Supreme Court recently addressed a similar situation in Tennessee v. Christensen.
The Facts of the Case
Narcotics investigators in the Tipton County Sheriff’s Department learned that Mariah Green had purchased pseudoephedrine from a grocery store. They went to a residence where they expected to find Ms. Green to ask her some questions. She and a friend told the police that they had taken the pseudoephedrine to a next-door neighbor, pointing to a mobile home that was visible from where they were standing. The officers looked in the direction of the mobile home and saw the defendant standing in front of the mobile home, looking in the direction of the officers.
The officers decided to go to the defendant’s home. They drove down a driveway to the mobile home that was not blocked by a gate or any other obstruction. There was testimony suggesting that there were three or four “no trespassing” signs along the driveway, including one right next to the driveway entrance. When the officers reached the defendant’s home, he came out and locked the door behind him. Nevertheless, the door was open long enough that the officers, who were at the front door of the residence at this point, detected the odor of methamphetamine “cooking” inside the mobile home. Ultimately, this led the officers to enter the home (based on exigent circumstances stemming from the highly flammable nature of a methamphetamine lab), where they discovered a meth lab. The defendant appealed his conviction on the basis that the police conducted an unconstitutional search when they proceeded to the defendant’s home beyond the “no trespassing” signs.
Jardines Does Not Prohibit Knock and Talks
The Tennessee Supreme Court, in a 3-1 decision, began its analysis by looking at the relevance of Florida v. Jardines. In Jardines, the U.S. Supreme Court held that the police conducted a search (as that word is defined under the 4th Amendment) when they took a drug detection dog to the front door of the defendant’s residence to sniff for drugs. The majority conceded that the law recognizes an invitation to the public (what the Court referred to as a “license”) to come to one’s front door and knock. However, the Court said this invitation does not extend to the police when they come to the front door to search. The front door and porch of a residence are within the curtilage of the home (i.e., those areas next to the home where activities associated with the privacy of the home take place). Therefore, the nonconsensual entrance of the police into the curtilage for the purpose of searching is an intrusion into the “houses” specifically protected by the 4th Amendment.
Of course, in the Christensen case, the police were not using a drug detection dog. Instead, the police were simply conducting a “knock and talk.” The Tennessee Supreme Court concluded that a knock and talk is not a search under the 4th Amendment, “at least if the intrusion is conducted within the scope of the implicit license recognized by the Supreme Court in Jardines. Rather, only if an officer’s conduct in approaching a front door ‘objectively reveals a purpose to conduct a search,’ such as by bringing a drug-sniffing dog onto the front porch, will his approach offend the 4th Amendment.” The mere fact that an officer hopes that the discussion that takes place with the person who answers the front door will result in the disclosure of information relevant to an officer’s inquiry or investigation does not convert the encounter into a search.
The Effect of No Trespassing Signs
The court recognized that the invitation to the public to approach a home (that extends also to police officers who come to conduct a knock and talk) is revocable. The issue in this case was whether the presence of at least three no trespassing signs at the beginning of and along a driveway was sufficient to revoke the public invitation. The court held that it was not.
In reaching this conclusion, the court took an exhaustive look at well over twenty appellate court decisions. The court recognized that a number of courts have held that the posting of no trespassing signs has the effect of rescinding the invitation to the public to approach one’s front door without a specific invitation. However, the court noted that a much larger number of cases have held to the contrary. More importantly, the court found these latter cases better reasoned than the former group of cases.
The court was especially impressed with the decision of the Tenth Circuit Court of Appeals in United States v. Carloss. In that case, the defendant had posted a sign on his front door that said “Posted Private Property Hunting, Fishing, Trapping or Trespassing for Any Purpose is Strictly Forbidden Violators Will Be Prosecuted.” The lead opinion in Carloss held that this sign was too ambiguous to “clearly revoke the implied license extended to members of the public, including police officers, to enter the home’s curtilage and knock on the front door.”
However, it was the concurring opinion that really caught the eye of the Tennessee court. That opinion advocated an objective test that focuses on “whether [under all the circumstances] a reasonable person would conclude that entry onto the curtilage ….. by police or others was categorically barred.” The Tennessee court adopted this rule and cited approvingly the following reasoning by Chief Judge Tymkovich of the Tenth Circuit:
[I]n light of the strong social presumption that a visitor to a residential neighborhood can enter the front porch curtilage to knock, I doubt a reasonable, law-abiding visitor would believe that “No Trespassing” eliminated that presumption in every instance. Every reasonable person knows – even without seeing a “No Trespassing” sign – that one cannot trespass on private property. But that knowledge coexists with knowledge of the equally well-established principle that one may generally enter the curtilage to knock. A reasonable person could also understand a “No Trespassing” sign as restating the “no-trespassing” principle without thinking it had any bearing on the implicit license to enter the curtilage for social reasons. In a residential context, the intention of the homeowner who posts signs, without more, seems inadequate to revoke the license.
However, the Tennessee court also included this quote from Chief Judge Tymkovich’s concurring opinion: “Of course, the right facts could remove [any] ambiguity. For example, a ‘No Trespassing’ sign posted on a fence circling a property imparts a different message than the same sign standing alone. And a closed or locked gate, especially in the residential context, imparts more information to the reasonable observer.”
In addition, the Tennessee Supreme Court included this important qualifying language in a footnote:
We emphasize that this approach recognizes the possibility that a sign, under the right circumstances, could be sufficient to revoke the implied license. Accordingly, we also emphasize that we are not adopting a per se rule in this case. Nor, as the dissent contends, are we adopting a rule that differentiates between persons based upon their economic resources. This case presents the issue of whether “No Trespassing” signs posted near a private driveway are sufficient, in and of themselves, to create a constitutional barrier to police officers attempting to conduct legitimate police business via the resource of a consensual encounter with the occupant of the private residence. Nothing about this narrow issue reasonably implies that only wealthy homeowners can insulate themselves from law enforcement incursions onto their curtilage.
Application to Virginia Law
Although Tennessee v. Christensen is not a Virginia case, it seems worthy of discussion in a publication designed primarily for a Virginia audience for several reasons. First, it deals with a very important issue of great practical significance to law enforcement officers. Second, the case deals with this issue in a very thoughtful and well-reasoned manner. Third, the opinion cites an exhaustive list of cases from other jurisdictions that have addressed this issue, thus making it easy to locate and read the approaches to this issue taken by other courts.
There are two cases of note in Virginia that touch on this issue. In Robinson v. Commonwealth, the Virginia Supreme Court decided a case where the police had received a report of possible underage drinking at a party at the defendant’s residence. The police drove up the defendant’s driveway and got out of their car. While walking to the defendant’s front door, the police saw what reasonably appeared to be underage persons drinking, who ran into nearby woods when they saw the police. While the police were pursuing these individuals, they observed evidence suggesting that the defendant had been serving alcohol. The court held that the police had acted within the scope of the invitation to the public to approach a person’s front door and that the subjective intent of the officers when they approached the front door was immaterial.
While this case did not involve the impact of “no trespassing” signs, the court made this interesting statement in its opinion: “Implied consent can be negated by obvious indicia of restricted access, such as posted ‘no trespassing’ signs, gates, or other means that deny access to uninvited persons.” This statement is what lawyers call dicta – a statement made by a court that is not necessary to the court’s resolution of the case before it. Since it is a gratuitous statement by the court, it is not binding on other courts in future cases (nor is it even binding on the court making the statement). Nevertheless, dicta is frequently cited by courts as a likely indication of how a court would decide the issue referred to in dicta.
What’s more, this statement is undermined by another Virginia case, decided by a federal judge in the Western District. In United States v. Jones, two Patrick County Sheriff’s officers drove down a long driveway on the defendant’s densely wooded property to his house, which was not visible from the road. In doing so, the officers passed two “no trespassing” signs that were posted on both sides of the entrance, at least one “no trespassing” sign along the driveway, and two more such signs on the house itself. One officer approached the defendant’s front door, while the other officer followed a well-worn path around the house to the backyard. The officers testified that it was common practice in Patrick County for residents to greet visitors at the back door of their homes. In the backyard, the officers observed a large patch of marijuana.
The court held that the marijuana was admissible and gave extensive treatment to two issues: 1) whether the observation of the marijuana patch was made from a vantage point within the curtilage of the home (concluding that it was), and 2) whether the officers were still acting within the implied invitation to the public when they reached that vantage point (concluding that they were). On the other hand, the issue of whether the “no trespassing” signs revoked that invitation to the public received very little attention. In fact, the court did not discuss that issue at all in the section of its opinion containing the court’s legal analysis. Instead, the court waited until its two-paragraph “conclusion” section to say:
[The officers] were justified in driving down a driveway and onto property that was not fenced, locked, or sealed in any way. Contrary to Jones’ protestations, the existence and volume of “No Trespassing” signs is not dispositive of this point. The signs are important only in that they are evidence of the owner’s desire for privacy, but they did not expand his rights under the Fourth Amendment. The officers had an implied license “to approach the home by the front porch, knock promptly, wait briefly to be received, and then …. leave.” (Quoting Jardines).
While this seems like extraordinarily brief treatment to give to an extremely important issue, it nevertheless stands (for the time being, at least) as precedent for the proposition that in Virginia, the posting of “no trespassing” signs does not prevent the police (or other visitors) from approaching the front door of a residence.
The Jones decision provides a strong basis for concluding that in Virginia the police may approach the front door of a residence to conduct a “knock and talk,” even if the property is posted with no trespassing signs. There are two important caveats to this conclusion, however. First, given the rather perfunctory analysis of this issue in Jones, it would not be surprising to see a Virginia appellate court reexamine the issue. Of course, that court might very well come to the same conclusion as did the court in Jones, but the issue seems deserving of more serious analysis than it received in that case.
The second caveat concerns the posting of signs that go further than simply saying “no trespassing.” As we have seen, the Tennessee Supreme Court has stated clearly that “a sign, under the right circumstances, could be sufficient to revoke the implied license.” Statements to this effect are common in other cases that have held that “no trespassing” signs do not rescind the invitation to the public to approach one’s front door. What these cases lack, however, is any clear guidance as to just what form those “right circumstances” would take. What should a sign say to be emphatic enough that it would rescind the implied consent to enter?
There are also common references in these cases to the significance of gates, locks, or other impediments to easy entrance onto a property. There is a strong suggestion in these statements that placing a gate or some other obstruction to access onto a property may very well revoke the implied consent to entry of the property.
One other recent case has some relevance to this discussion. In Rogers v. Pendleton, two Roanoke City police officers drove onto Rogers’ property to investigate reports of a loud party. The officers refused to leave the property after being asked by Rogers to leave, even though they lacked a search warrant or probable cause to think any criminal activity was underway. The Fourth Circuit Court of Appeals held that the officers violated the 4th Amendment by not leaving the property. Therefore, even though the police may come onto a person’s property that is posted with “no trespassing” signs to approach their front door, if they are asked to leave, they must do so unless they have a warrant or exigent circumstances.
 There was also a very interesting dissenting opinion in this case, written by Judge Neil Gorsuch. On April 10, 2017, he assumed the seat on the Supreme Court that had been occupied by the late Justice Antonin Scalia. See another article in this issue of The Virginia Criminal Justice Bulletin for a discussion of Judge Gorsuch’s dissenting opinion.
 See Call, “The Virginia Supreme Court Issues an Important Ruling About the Authority of the Police to Make Warrantless Entries onto Residential Property,” Virginia Police Legal Bulletin, Vol. 2, No. 2 (September 2007) for a full discussion of this case.