So the police turn up at your front door, sometimes even your back door. The typical scenario is that they received a complaint and want to check things out. The next thing you know is they are telling you they want to come inside but they don’t have a warrant. You might even be wondering, “Can police search my house without a warrant?” It’s at this critical point that you have to make a decision. Do I let them in or refuse. As a criminal defense attorney in Charleston, SC there is only one right answer, “heck no.” But be polite when you say no thanks.
Your home and the area immediately surrounding it, known as curtilage, is your private property and anyone, including law enforcement, who venture onto your home or curtilage for the purpose of a search without a warrant is trespassing. The most important word in that last sentence was SEARCH. This article addresses what your rights are when it comes to police searches in or around your home when they don’t have a warrant. You’ll notice I said in and around your home because both can be equally important in the world of police searches and your defense to a criminal charge. I think it’s safe to say that everyone knows what I mean when I say inside the home but to understand the outside area (curtilage) I need to make that a little more clearer to you.
Knowing whether police can search your house without a warrant is one of the most important legal protections that you should be aware of. If the search is unlawful, then any evidence that is discovered by police will most likely be excluded against you in court. Now that we have the general rule, lets look at the definitions and exceptions more closely.
What is curtilage?
Curtilage is not a clearly marked boundary around your home, however the concept has been stated as:
The area immediately surrounding and associated with the home, the curtilage, is part of the home itself for Fourth Amendment purposes. Oliver v. United States, 466 U.S. 170
Furthermore, the U.S. Supreme Court has stated that curtilage is determined by a four-factor test:
- The proximity of the area to the home;
- Whether the area is included within an enclosure surrounding the home;
- The nature of the uses to which the area is put; and
- The steps taken to protect the area from the observation by people passing by.
U.S. v. Dunn, 480 U.S. 294 (1987).
Police can knock, but not enter
Law enforcement may approach a home in the hopes of speaking to its occupants just as anyone could because this is no more than any private citizen might do. Florida v. Jardines, 133 S.C t 1409 (2013). This is often referred to as a license or an invitation to a certain area of your home. Think of the social norms such as a child on Halloween, Fed-Ex delivery, or door-to-door salesmen peddling their product. This implicit license typically permits the visitor, including police, to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. They can do this without a warrant because this is not considered a search under the 4th Amendment.
Can police go anywhere on your property?
No, they cannot. Police, just like the general public, may have the right to knock on your front door because of an implied license however, the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. Having a visitor, including police, knocking at your door is routine but that license itself does not extend to searching that area. 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 but without a warrant. Without more, this is where police action must stop.
Can police look into your property?
Yes, under certain circumstances. Over the years the courts have carved out various exceptions associated with curtilage and the home when police view this protected area from a lawful position such as:
Open fields: police officers are allowed to look into the property that same as a private citizen could. If the property has a large open field and you are growing marijuana in it and it can be seen from the roadside or some other vantage point then police do not need a search warrant to view it.
Trash at curb: if you leave your trash can out on the curb and it has evidence of a crime, police can search it without a warrant because the law defines this as now abandoned property left it for others to have access to it, including law enforcement. This is very common so be careful what you throw out to the street.
Fly over your house in helicopter: if you grow marijuana on your property (curtilage) and police can view it from above in a helicopter this is considered public air space where no warrant is required.
Cannot bring a Drug dog to your door: this is considered a search requiring a warrant. Even though there may be a license for people to approach your front door, including law enforcement, that license does not extend to a search of your front door or anywhere on your curtilage.
Police function: police do not need a warrant to enter your curtilage or home if they are responding to an emergency. This is often called exigent circumstances and each incident will need to be reviewed to determine of the entry was lawful or not.
What should you do if police ask to search your home?
Politely say no. Refuse to give them consent. Why? The right answer is that you have a constitutional right against such practices. The wrong answer is if you have nothing to hide then why not let us verify that. If you give police consent to search then you waive an important protection. If police do discover evidence of a crime a lawyer can challenge that search and possibly get the evidence suppressed in court but if you waive it by giving them consent that protection is gone forever and the evidence is going to come in against you.
What to do if you are charged with a crime?
If you have been charged with a crime resulting from a search at your home or the curtilage around your home call an experienced and trusted criminal defense lawyer Charleston, SC at the Dale Savage Law Firm today for a free case evaluation (843) 530-7813.