Let’s talk more about making an arrest on curtilage.
This comes from an officer in South Dakota, following up on an earlier episode about entering curtilage in order to make a warrantless arrest. In a nutshell, what I said there was: you’ve got to be very careful about that.
Here’s the scenario. You’re entering curtilage. You’re entering that person’s porch area, for example. You see them on their porch, and you go up to that porch, and your intent, and the way you act, is what I call habeas grabus. You’re going up there to grab this guy and say you’re under arrest for a crime. But you don’t have a warrant.
You’ve got a problem on your hands.
Why the porch is the problem
Here’s the problem. If you put your government shoe onto their curtilage, what got you there?
You’ve got the acronym CREW. Consent, a recognized exception, exigency, or a warrant.
Consent is otherwise known as knock and talks. That’s what they call consent at a person’s front door. Well, you can’t call this a knock and talk. You can’t call this consent, because there is no reasonable implied consent to believe you have their permission to enter their curtilage for the sole reason of arresting them.
That’s not consent. Nobody’s going to buy that. Nobody wants to be arrested on their own doorstep. You can’t really think that’s what they want to happen.
A recognized exception. You also don’t have one here. You can’t call this plain view. You may be able to see it, but you just can’t touch it.
As one judge put it back in 1975, as old hands at the burlesque houses know, you can look but you can’t touch. That’s plain view. You can see it, but you can’t touch it.
Plain view seizure requires three things: right to be there, right to see it, and lawful access.
So you always have to justify the intrusion. And here, that isn’t going to work. You can see them, but where’s the authority to go up and grab them? Do you have exigency? Maybe you do, but I need to hear it. It’s not automatic.
A warrant. Do you have an arrest warrant? That would cover you. But that’s the W.
What about a public footpath to the door?
So the officer asks: would it change the analysis if the suspect was standing by his front door, and there was a footpath leading to the door from the street, through an unlocked gate, and you can articulate that the general public uses that exact same path to contact the occupant?
The answer is no. Absolutely not.
Here’s why. I teach color codes. Green, yellow and red.
Red are those areas where the public should not be on curtilage. If you’re going to be there, you usually need some kind of exigency or a warrant.
Yellow is what we’re talking about here. Yellow are those areas where the general public feels they have the authority to go and contact the occupants. In other words, the path used by uninvited guests.
You’re uninvited. They didn’t tell you hey, meet me in the backyard. And you’re a guest, meaning you’re not there to steal their stuff or violate their rights.
So yes, you’re still on curtilage. And it’s yellow, usually, because of knock and talks.
But it turns red when you’re there for an unlawful purpose.
When you start going up to the guy’s house just to arrest him, it’s not yellow anymore. It’s red. You’re not there for a lawful purpose. And that’s the problem.
I don’t want to belabor this, but make sure you understand: it’s only yellow because of the knock and talk. Take away the lawful purpose and the color changes.
So when can you do it?
If you’re going up to a house and your mission, your primary intent, and the way you’re going to act is I’m going to make an arrest, you can do it if:
- You had their consent, which you probably don’t
- You have some form of exigency, which you may have
- Or you have an arrest warrant, and it’s their house
If you have one of those, then you’re fine.
What if it’s someone else’s house?
If it’s another person’s house, that’s different.
You could grab them from the front porch of their friend’s house and you’re not going to be violating the fugitive’s rights. But the homeowner can complain about you, because you’re going onto his curtilage and you don’t have the authority. The arrest warrant for his friend does not allow you to enter his home.
However, that’s really not that big of a deal if he’s actually outside in the porch area.
It’s a much bigger deal when cops go into the backyard to try to snatch up the suspect, or they go into the friend’s house with nothing more than an arrest warrant. That would be a way bigger issue.
I hope this helps. Until next time, my friends. Stay safe.
Related from Blue to Gold
- Can Officers Go Check the VIN of a Potentially Stolen Vehicle?
- Does Payton v. New York Apply to Porch Arrests? Explained for Officers
- Constitutional Considerations of Warrantless “Surround and Call-Outs”
This article is an edited transcript of Roadside Chat Ep. #733. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
