Making an Arrest on Curtilage

An officer from South Dakota mentioned a scenario in Episode 713. This episode covers entering curtilage to make a warrantless arrest. In a nutshell, I advised that officers need to be very careful when doing this. For example, if you’re on someone’s porch and you see them standing there, and your intent is to arrest them—let’s say for a warrant or a crime, but you don’t have a warrant—that’s a problem.

Here’s why: If you put your government-issued foot onto their curtilage, the question is, how did you get there? The acronym for this is CREW—Consent, Recognized Exceptions, or a Warrant.

1. Consent – This is also known as a “knock and talk” at someone’s front door. However, you can’t call this a “knock and talk” in this scenario because there’s no reasonable implied consent to enter their curtilage just for the purpose of making an arrest. No one wants to be arrested at their doorstep, so it’s unlikely they gave permission for that.

2. Recognized Exceptions – You can’t use **plain view** here either. You might be able to see something, but you can’t seize it unless you have lawful access. As one judge said in 1975, regarding burlesque houses, “You can see it, but you just can’t touch it.” In other words, just seeing something isn’t enough to act on it. You must have lawful authority for your actions. Do you have an arrest warrant? If you do, that’s the exception.

So, the officer in Episode 713 asks: “What if the suspect was standing by his front door, and there was a footpath leading to the door from the street, passing through an unlocked gate, and you can articulate that the general public uses that same path to contact the occupant?”

The answer is: No, absolutely not. This doesn’t change the context.

I teach color codes to help explain these situations—yellow, red, and green:

– Red areas are places where the public should not be, and if you’re there, you typically need either a warrant or some form of agency approval.

– Yellow areas are spaces where the public might feel they have the right to contact the occupant, but they are still technically on curtilage. This includes paths used by uninvited guests. These areas are yellow because they may be used for “knock and talks,” but they turn red when the purpose is unlawful—like going up to arrest someone. If your intent is to arrest, it’s not a “knock and talk” anymore; it’s an unlawful intrusion.

So, in this case, even if the path is commonly used by the public, you’re still on curtilage. The yellow area applies only for knock-and-talks. It becomes red when your intent is to arrest someone. That’s where the problem lies.

To summarize:

If you’re going up to a house and your primary intent is to make an arrest, you can only do so legally if:

– You have consent (which you likely don’t),

– You have some form of exigency (which might apply), or

– You have an arrest warrant.

If it’s their house, then you’re fine. If it’s someone else’s house, and you’re arresting their friend, you’re not violating their rights, but the homeowner can complain. Your arrest warrant for their friend doesn’t give you the authority to enter the homeowner’s house.

That’s not a big deal if the person is on the porch, but it becomes a much bigger issue if the officer enters the backyard or goes into a friend’s house with just an arrest warrant. That would be a serious problem.

Until next time, my friends, stay safe.