Anthony Bandiero here. The question I have for you is: Can officers go into the backyard when they’re serving an arrest warrant and not violate curtilage?
The answer is, “Yes,” officers can do it. And here’s why. First of all, from the Supreme Court’s perspective, the back yard is typically treated like the home itself. So, if you’re going to be there, you need a reason. You need what I call C.R.E.W., you need the person’s consent, you need a recognized exception or a warrant. There’s the C.R.E.W.
Now, here, the recognized exception is the arrest warrant. An arrest warrant gives the officers permission to invade somebody’s privacy, in the same manner as if they had a search warrant.
Really, an arrest warrant is two things. One, it provides judicial probable cause to arrest somebody, but two, it also gives the police officer authority to search for that person at their home under three conditions.
One: That to have a valid arrest at their house or their domicile, it must be on the warrant. But it doesn’t necessarily mean that’s the address that you’re serving it at. If there are any doubts about that, (let’s say for example, they moved), then you look at DMV records, and you talk to a neighbor, and you talk to their employer, and if they put this address on their employment application, then you’re going to explain to the court why you had probable cause that this is now their legal domicile.
Two: You knock and announce.
Three: Then finally, the third ingredient is that you must have reason to believe they are present at the time of execution.
One thing I want emphasize is that because going into the backyard is in a sense, like going into the home itself, that third element should be there. So, for example, you should have a reason to believe that they’re presently at home before you go into the backyard. The car is in the driveway, the neighbor says they saw them there, you see them, and so forth. If you have those elements, you can go into the backyard to serve the arrest warrant, in the same manner as if you had a search warrant, which does mean, if necessary, forced entry after following compliance with knock and announce.
I hope this helps. Keep the questions coming in my friends, and stay safe.
