Here’s Your Sign
I hear you knockin’
But you can’t come in.
I hear you knockin’,
Go back where you been.
You may not be aware of this but, by application of ancient common law you implicitly give permission to people to walk up to your door and knock on it. Common law was a system of laws in effect in ancient times and could be said to have been based, unlike our current laws, on common sense.
You’ve probably heard of common law wives. Those are women that you’ve lived with long enough, and under such conditions as would lead people to believe you were husband and wife. Under common law, you and she were husband and wife. Florida has specifically rescinded any type of common law marriage, but in other areas the common law still provides legal guidance.
The fact that people can legally walk into your yard, on your private property, without your explicit permission is based on the common law doctrine that one would expect neighbors, salesman, delivery persons and solicitors even, to knock on your door and, if you answer, to engage you in conversation or activities based on their interests.
The police have used this doctrine for years to approach people for all kinds of reasons. They may want to talk to you about a crime that occurred in your neighborhood. They may want to talk to you about crimes they believe you are committing. They may want to walk into your yard and see if they can see any moonshine stills or marijuana plants.
Lately, the two main uses that have raised the most controversy are “knock and talks” and so-called “plain smell” or “plain view” encounters.
A “knock and talk” is where the police have some suspicion that you may be growing medicinal marijuana or are committing some other crime in your home, but they don’t have any evidence with which to get a search warrant, or otherwise legally enter your home.
They simply walk up to your door, often in uniform, knock on the door until you answer and then use “friendly persuasion” to get you to let them search your house. Even if you are not growing any plants or doing anything else illegal the police might see during the search, it is at least inconvenient, if not insulting and intimidating to have the police rummage through your house. Something about the “right of the people to be secure in their homes” seems violated.
If the person does not answer the door, the police may allege in an application for a search warrant, that they smelled the odor of growing marijuana, or they saw a plant by peeking through your window. Under Common Law, because they saw or smelled this from a location they had a right to be in (your doorstep) this could be enough for a judge to issue a search warrant allowing them to kick open your door, throw an explosive device into your living room to “distract” you and tear your house apart.
But recently, Florida courts issued 2 rulings that gives
the liberty-loving among us a glimmer of hope. In one case the police walked up the pathway to a person’s house and knocked on the door several times. When they did not get an answer, they stepped away from the door and peeked into a window. From that vantage point, they detected illegal activity and used that observation for warrant.
The court held that the police stepping away from the door to peek into a window was not something that a person would implicitly consent to under common law. While they had the right, in that situation, to walk up to the door and knock, they did not have the right to peek into a side window.
Building on that case, in a more recent situation the police had a tip and went up to a house that had a fully fenced yard with a No Trespassing sign posted. The police said the gate was open, so they went into the yard, knocked on the door, had a “consensual encounter” with the resident, who eventually “consented” to a search of his grow house. A typical knock and talk.
Now you might wonder who, in their right mind, would consent to a search of their home, knowing there were marijuana plants growing in there but, the fact is, uniformed police officers at your front door can be very “persuasive” (read: intimidating). And in the window situation, what’s to stop them from saying they smelled it from the front door or saw it through the fogged glass in the front door, as opposed to peeking into the window.
The real question is how do you keep them out of your yard in the first place. The courts answered that question. In the case where the people have posted a No Trespassing sign, the courts held the police no longer have your implied consent to even come into the yard, much less up to your door.
Even though meter readers, deliveryman and your neighbors still had your implied consent to come into your yard, the No Trespassing sign revokes that consent as it applies to others, including, most importantly, the police.
The fact that the gate was open made no difference to the court because in posting the property you exhibit an “expectation of privacy that society is prepared to recognize.” In fact the fence does not display your “expectation of privacy”. Without the signs the fence does not legally require people stay out, but with or without a fence, courts have held that the posting of the sign is enough.
Fencing is expensive. Signs are cheap. I like that. The law according to the court is, “homeowners who post No Trespassing or No Soliciting signs effectively negate a license to enter the property.”
So, the moral of the story is put up a No Trespassing sign and rest easy.
No Trespassing signs are available for purchase online at my website. LOL.
(Randall C. Grantham is a fifth generation Floridian and lifelong resident who practices law from his offices on Dale Mabry Highway in Lutz . He can be reached at LutzLaw@aol.com. Copyright RCG)