Can “No Trespass” Signs Keep You Out of Jail?

An upcoming Supreme Court may render “No Trespass” signs useful. Normally, signs forbidding trespassing are useless because the Jehovah’s Witness or salesperson will ignore the sign and knock on your door anyway. In the future though, hanging a “No Trespass” sign outside could keep you out of jail.

In 2013, James Christensen Jr. of Tennessee encountered a pair of local officers in civilian clothing. The officers had just seen James’s girlfriend, because they had received a tip that someone in the neighborhood was creating methamphetamine. James has two “No Trespass” signs, one on his driveway and another outside his house. A third “Private Property” sign lived next to the second “No Trespass” sign. When James saw the officers, he stepped onto his front porch to confront them. James locked the door behind him as he did so. As James spoke with the officers, one of them noticed the smell of meth.

When the officers asked for permission to search the house, James told them to leave. Instead of leaving, the officers arrested him and then kicked down the locked front door. After a search revealed several meth labs in his house, James was arrest and charged with resisting arrest, promoting meth manufacturing, and possession of firearms while committing felonies. James was convicted by the trial court and lost his appeal to the Supreme Court of Tennessee. His lawyers have appealed to the U.S. Supreme Court because other states have ruled that “No Trespass” signs are enough to protect a right of privacy against warrantless searches.

The World at Arm’s Length

The 4^th amendment prohibits the government from searching a home without a warrant. However, the government can still search a property if the owner gives his or her consent. Courts were divided on exactly how that consent should be given. The Supreme Court ruled in previous cases that police could enter private property and knock on the door to speak with the residents, in the same manner a private citizen could. This “knock and talk” doctrine effectively became an implied consent, whereby the police could assume that they had the owner’s consent to walk up to their front door. In cases like this one though, police have used this implied consent to find probable cause to conduct a search without a warrant. The implied consent to walk up to the door often results in the police finding reasons to break down the door.

This kind of “search” by police destroys the 4th amendment. Police should not be able to legally walk up to a door and then illegally smash it down based on the flimsiest evidence.  Since police can always pursue extrinsic evidence to conduct a search, the best way to prevent this kind of abuse would be to tell ALL visitors to stay away. If a private citizen cannot legally knock on your door, neither can a police officer. This would effectively remove the officer’s implied consent. How can an average American tell the whole world to keep all her lawn?

The easiest way of keeping out any and all visitors is to throw up “no trespass” signs. Most courts agree that this is some evidence that the homeowner doesn’t want to be disturbed, but there is significant disagreement about whether “no trespass” signs alone are enough to withdraw implied consent. Some judges believe a sign is enough to keep the world away; other judges believe that there must be more.

The Ability to Knock On Front Doors Does Not Give Police the Power to Kick Them Down

“Knock and Talk” is entirely built on two assumptions. First, that the public can knock on each other’s door. Second, the police have the same right to knock on doors and talk with people as other private citizens. This doctrine is fine, since police work may often rely on speaking with those who live in the area.

What is not fine though, is if the police take this license to speak with the neighbor to bypass the 4^th amendment altogether. The right of the people to be secure in their houses against unreasonable warrantless searches would be irreverent if the police could just walk up to a door and find any reason to tear open the door.  Judges should always ask officers conducting these types of searches: “why couldn’t you just get a warrant and come back?” It is the officer who must respect the citizen’s right to privacy; the citizen has no responsibility to lay out a welcome mat for the police. If we are really “secure in our houses,” the police cannot break down the door just because they think something is wrong while speaking with someone on the front door. The Constitution requires a warrant.

The only exception that should exist is if there is a real emergency. Danger to human life must be a priority. If the officer hears a scream or a plea for help from inside the house that would be sufficient cause to charge the door and search the building. However, the smell of drugs cannot be considered an emergency. Even if the officer fears the suspect could destroy the evidence, he can always radio his department and wait for another officer to obtain the warrant while he watches the house from outside.  Christensen’s case is another example of how the war on drugs is eroding our constitutional rights and the line must be drawn to ensure that “knock and talk” doesn’t become more than that.