"No Trespassing” signs, by themselves, do not prevent officers from conducting a "knock and talk" (requesting consent to search) at a private residence.
Police received a tip that Ralph Carloss, a convicted felon, was in possession of a firearm and selling methamphetamine. Officers went to the single-family home where Carloss was staying. A “No Trespassing” sign was on a wooden post beside the driveway, a “Private Property No Trespassing” sign was tacked to a tree in the side yard, and “Posted Private Property Hunting, Fishing, Trapping or Trespassing for Any Purpose Is Strictly Forbidden Violators Will Be Prosecuted” signs were on a pole in the front yard and on the front door.
When officers went to the home to speak with Carloss, they drove into the driveway, parked, went to the front door, and knocked for several minutes. A woman came out the back door of the house, followed by Carloss shortly thereafter, and both spoke with the officers. Carloss permitted the officers to follow him into the home, and through a room Carloss identified as his, so Carloss could ask the homeowner whether he consented to a search of the home. Upon entry, officers saw drug paraphernalia and white powder residue that appeared to be methamphetamine.
After the homeowner denied consent to search the house, officers obtained a search warrant based on what they saw in Carloss’ room. During execution of the warrant, officers found “multiple methamphetamine labs” and lab components, a loaded shotgun, two blasting caps, ammunition, and other drug paraphernalia. Carloss' motion to suppress the drug evidence was denied and he entered a conditional plea for conspiring to possess pseudoephedrine. He then appealed the suppression ruling to the U.S. Court of Appeals for the Tenth Circuit.
Among other issues in his appeal, Carloss claimed the officers violated his Fourth Amendment right to be free of unreasonable searches and seizures when they approached his home and knocked on the front door, despite the “No Trespassing” signs posted around the home. The drug evidence was therefore fruit of the poisonous tree, he argued.
Carloss argued to the appellate court that the “No Trespassing” signs around the home revoked the implied license the public had to approach the house and to knock on the front door.
Writing separately, two of the Tenth Circuit’s three-judge panel disagreed with Carloss. While differing somewhat in their analysis, both judges concluded that the “No Trespassing” signs placed about Carloss’ home would not have conveyed to an objective officer that he could not go to the front door and knock, seeking consensual conversation with Carloss.
Both judges reasoned that the mere presence of a “No Trespassing” sign is insufficient to convey to an objective officer, or member of the public (for example, a mailman or a FedEx driver), that he cannot go to the front door and knock.
Moreover, the lead opinion said, the yard was an “open field” and not curtilage, and it is well-established that “No Trespassing” signs will not prevent an officer from entering privately owned “open fields.” (I will explain these two legal concepts in more depth in a future post but for our purposes today, "curtilage" is the "privacy zone" close to and around a residence; "open fields" are the rest of the property outside the curtilage.) Further, the court said the sign on Carloss’ front door forbidding certain recreational activities was ambiguous and did not clearly revoke the implied license extended to members of the public to enter the home’s curtilage and to knock on the front door. Rather, that sign could be read to have meant that that the listed recreational activities would not be allowed on the property generally.
Additionally, the concurring opinion noted the absence of any fence or other physical obstruction to remove ambiguity from the “No Trespassing” signs to make clear that visitors were not allowed, noting that “numerosity alone does not eliminate the ambiguity.”
Thus, a majority of the appellate court held the four “No Trespassing” signs around were insufficient to revoke the implied license for officers to attempt a “knock and talk” at Carloss’ residence. For this and other reasons addressed in the lead opinion, the Tenth Circuit affirmed the district court’s decision to deny Carloss’ motion to suppress.
Although this is a federal case from another circuit, had this case been heard in a California state court, I believe a similar result would have occurred.
So, what is the "take away" from this decision? One, No Trespassing signs don't prevent the police from coming and knocking on your door. Two, if there are drugs and drug paraphernalia, or any other kind of contraband, in your house, don't be inviting the police inside! Better yet, even if you "have nothing to hide," don't just give away your constitutional rights. Politely tell the police that if they want to come in, they should go obtain a warrant.
If you are the victim of a crime, you want the person who hurt you or took your property to spend the maximum number of days in jail or prison, to pay every dollar of their fine, and to repay you ever penny of restitution you have coming. Cops and the public pretty much feel the same way.
On the other hand, if you have violated some law and been charged with a crime, or multiple crimes, you may want your lawyer to negotiate some kind of plea agreement so you get sentenced to something less than the maximum penalty.
That's why you want me, an experienced criminal attorney, who has been involved in thousands of plea bargains on both sides of the equation, as a prosecutor and as a defense attorney. I know how this game is played and if some kind of deal is possible, I'll do my best to get it for you.
There are two things you should know about plea bargaining.
1. The majority of criminal cases are disposed of by way of a plea bargain. That's right. Of all the criminal cases initiated across America every year, only about 5% go to trial. The same is true for civil cases where they call the agreement a "settlement."
Why is that? Here are a few of the reasons.
2. The prosecutor has the total power to decide if you are going to be charged with a crime, what crime or crimes it will be, and how many counts of each offense there are. For the same reason, the prosecutor gets to decide if there will even be a plea bargain offered and how low they are willing to negotiate to get a guilty plea.
This is another reason you want someone like me to represent you, a defense attorney with 14 years of experience as a prosecutor who knows how the prosecution thinks and how far they might be willing to be pushed in a plea negotiation.
Different Kinds of Plea Bargaining
There are three kinds of plea bargaining. Count bargaining, charge bargaining, and sentence bargaining. Here's how they differ.
Count bargaining, is often used in cases where the different counts are the same type of crime or have the same basic sentencing range. For example, let's say someone got drunk and went on a vandalism rampage, busting the windshields of ten cars. Each car counts as an individual crime, or a separate "count." A typical plea bargain would be to plead "one for one." In other words, for every count to which the defendant pled guilty, another count would be dismissed. Of course, the defendant would still have to make restitution to all ten victims. And even though the defendant's record would only show a conviction on five counts, the judge would be able to consider the dismissed counts during sentencing.
What if the number of crimes is an odd number, for example, five counts of commercial burglary? A prosecutor would likely offer "plead to three, dismiss two." Understand, the prosecution is not going to give away more than they get and, as I said above, they are in the driver's seat on plea bargaining.
In charge bargaining, it is the charges themselves that are negotiated rather than the number of counts. In this type of deal, the prosecutor is going to rely more heavily on other factors, e.g. defendant's record or lack of criminal convictions, age of the victim, if a weapon was used, the criminal sophistication involved, to name a few.
Let's say the original charge was a strong arm robbery but the prosecutor has discovered weaknesses in the case. Maybe the victim has become uncooperative. The prosecutor might offer a plea to a lesser included offense of grand theft.
For a variety of reasons, there might be an offer to plead to a "lesser related offense." Other examples: plead to misdemeanor "joyriding" instead of felonious "taking and using a car without permission;" or non-priorable reckless driving with alcohol instead of the heavy penalties attached to driving under the influence of alcohol.
Unlike the other two, sentence bargaining is the one controlled by the court. Oh sure, the prosecutor and I will sit down and hash out something agreeable to both sides and the judge usually goes along with it, figuring if both parties like it why should he or she stand in the way. But it is known to happen where the judge says, "Considering the severity of the crime, I don't find that an acceptable bargain. Come up with something better (i.e. worse for the defendant) or set it for trial."
Lucky for the defense bar, if not necessarily for the general public, laws passed by initiative or by the legislature have greatly diminished the prosecutor's ability to use sentence bargaining. And a proposed ballot initiative could drastically change additional sentencing laws to the benefit of convicted felons. Needless to say, prosecutors are not happy about it.
So now you understand, the prosecutor will make an offer for plea bargain. The defense attorney sometimes only gets once chance at a counter-offer. It depends on the prosecutor handling the negotiation. Some are more open to give-and-take than others.
As much as you may want to be there, defendants aren't present for the bargaining. That is why you need someone looking out for your interests. Why do you think major league athletes have sports agents, and people buying or selling a house use real estate agents? They want a representative who is familiar with the industry and how far the other side can be pushed.
Again, that's why you need an experienced criminal defense attorney and former prosecutor like me working to get you the best deal. Call me, Attorney Rebecca Ocain, at 619-431-1076.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.