If law enforcement has secured a warrant to search a person's property, they are within their legal rights to conduct the search regardless of whether they have permission or if there are any impediments to the home's curtilage (i.e. the front yard of the home). This is usually an area of general license in which anyone can approach the front door to knock. People who wish to revoke that permission often surround their yards with fences and/or "no trespassing" signs. But this then begs the question—can police come on private property without permission if they do not have a warrant? Can there ever be a situation in which police trespass on private property?
A recent case dealing with police officers’ right to enter the property of someone who has a privacy fence and either a no trespassing or private property sign posted without first obtaining a warrant caught our eye. The case, State of Arizona v. Cody Mitchell Lohse, focused on whether or not police officers had the right to enter Lohse’s property without a warrant, where they discovered drugs, guns, and drug paraphernalia. Lohse argued that since the officers passed through two fences, one of which had a private property sign posted on it, the officers “trespassed into the curtilage of [his] home.” This trespass, he argued, violated his Fourth Amendment rights, which states that,
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Lohse was initially convicted of a number of drug-related offenses, but upon appeal of that initial decision, the court unanimously found that the officers, if there was in fact a privacy fence and no trespassing sign in place at the time of the incident, did not have the right to enter Lohse’s property.
“Thus, because law enforcement officers without a warrant are no more privileged to enter the curtilage of a home than the general public… entry under such circumstances would constitute an unreasonable search under the Fourth Amendment,” wrote Chief Judge Peter Eckerstrom.
If you are in need of an experienced Phoenix criminal defense lawyer, then you’ve come to the right place. At MayesTelles PLLC, we understand what it takes to fight for the rights of people charged with a crime, and through our efforts we have secured countless favorable legal outcomes for our clients. Give us a call at (602) 428-7104 to discuss your case over the phone, or send us your information through our online form and a member of our firm will reach out to you as soon as possible.
