By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A question from the field: if police have probable cause for a robbery suspect and they go to his house to arrest him, and he tells the police to beat it while the cops are on the curtilage, what should the police do? Anthony answers it with a 2023 Ninth Circuit case out of Sparks, Nevada.
What is curtilage, and what counts as curtilage?
Well, it’s a very good question, and it’s the question we’re going to answer today. It comes out of a Ninth Circuit Court of Appeals case decided on August 21, 2023, and it is an estate case. If you’re reading the word estate in a title, you know that somebody died, right.
So this is a very, quite frankly, a common situation that occurs around the country. Police have this probable cause, especially for a felony, and they don’t have an arrest warrant, but they have a felony crime, and they’re looking to arrest a guy from his home. We have to look at the rules of engagement.
Now the first thing we want to know is, what is curtilage. In my experience, curtilage is one of the most misunderstood doctrines in law enforcement, right. And the reason why is, let’s start with the word itself. Nobody ever uses the word curtilage to describe their property, right. They never say, man, I got some new curtilage today, you know. Or, I bought a nice five acres of curtilage in the country. They don’t talk like that. They say the word property. But the word property does not mean curtilage.
Curtilage is that area of a high expectation of privacy around the home, and a person can own more property than curtilage. So I want you to think backyards, gardens, carports, porches and so forth, right, areas where domestic life occurs. Driveways can be curtilage under the right conditions.
Why did the officers go back to the house a second time?
Now before we continue, let me give you a little bit of a back story about Rolando. So Rolando is not a nice guy, okay. I get the impression that he’s like a gang member, and he goes up to a person’s neighborhood and pushes this guy off his skateboard, okay, and steals a skateboard. So again, not a nice guy. And Rolando is not a juvenile, he’s an adult, he’s a married man.
So they go to his house. When they got the call for service, they talked to a witness who observed this whole thing, the strong armed robbery, and they go to Rolando’s house and they talked to him for a minute. But he really was very clear. He says, get off my property. And the police leave. They go back to the witness, they go back to the victim, they establish their probable cause. They built a pretty solid case.
Now they’re like, you know what, let’s just try to get this guy in custody. They go back up to the house. Rolando is sitting on like a patio set, and we can describe this as a front patio or porch area. There’s two officers. One officer is at the front door knocking on the door, and he’s trying to contact Rolando’s wife. And another officer is kind of talking to Rolando, trying to de-escalate him and so forth.
Why were the officers trying to talk to the suspect’s wife?
Well, I think the officers want to talk to the wife because Rolando wasn’t being cooperative, and I think they were kind of hoping that the wife would say something incriminating, like, oh yeah, I know what you’re talking about, you know, that skateboard is right here, you can have it back. And then boom, now we have like a beyond a reasonable doubt case, not just a probable cause case.
So while the cop is knocking on the door trying to talk to the wife, Rolando says at least five times, maybe up to eight, he says, hey, I want you to leave, do not try to contact my wife, I want you to leave.
And what do the police not do. They do not leave.
Do you have to leave if the homeowner tells you to leave?
Now at this point, should they be leaving, right. And the answer is yes, because they don’t have any exigency, and they don’t have an arrest warrant.
And this is a very hard thing for a police officer to do. It goes against the grain of a police officer, right. Police officers have the mentality to charge forward. If there’s an active shooter right now, what are you going to do? You’re going to charge forward. Nobody is going to tell you no, you’re not going to go and save lives and so forth.
And so when you have these people telling you, especially scumbags like Rolando, that hey, you know, get the hell out of here, it’s very hard for a cop to turn tail and leave. It’s very hard for a cop to realize that they have been legally beat, right. The law is no longer in their favor. And I get it, right. But you have to realize when you’ve been legally beaten.
As a little side note, I see it all the time with First Amendment auditors. How many times have you seen cops that are legally beat, the law is not in their favor to detain people or to continue to detain, because they’re just engaged in First Amendment activities. And what does the cop do? Keep going, hard charging forward. That’s not a good thing to do.
What happened when the officers did not leave?
So back to our scene here. Rolando eventually gets very frustrated, and the allegation, at least what the estate is saying, is that he pulled the gun from underneath the couch cushion in order to menace the cop and be like, hey, get the hell out of here, I said leave, right. And of course, you know what’s going to happen next. The police responded with lethal fire, killing Rolando. And now we’re in federal court.
So the question is, did their refusal violate the Constitution? And the answer is yes, right. And the court also held no qualified immunity.
So we have to remember that these knock and talks are consensual encounters. We don’t have the authority to not leave if they don’t want us to be there, unless you have some exigency.
Does a felony by itself create exigent circumstances?
And some officers say, we do have exigency. And I say, what? Well, he committed a felony, Anthony, strong armed robbery. And I say to him, all right, exigency is a now or never type of mentality. If we leave, what bad is going to happen, right? Or is somebody going to be hurt? Is evidence going to be destroyed, right? And if the answer is no, then we don’t have exigency, right. Then we’re going to have to just come get that warrant for strong armed robbery and come back with our friends.
And we know that felony alone does not create the exigency. I know this is a serious crime, right, but it doesn’t create the exigency. And we know that from a case called Payton, where the U.S. Supreme Court said that even murder does not create exigency, right.
So if you don’t have exigency and a person tells you to leave, you got to leave. It’s very, very important that cops recognize this.
What did the Ninth Circuit say about detaining him on his own porch?
As the court said, even assuming the officers had probable cause to arrest Rolando, the record does not demonstrate that any exigent or emergency circumstances existed here. The officers had not chased Rolando to his home, nor was this a case of hot pursuit, right. So here he did not consent to being questioned on his front porch. So this is no longer a knock and talk. In order to stay on the property, on the curtilage, we need exigency, and he repeatedly asked the officers to leave. The officers detained him on the curtilage of his home without a warrant, and questioned him while he repeatedly asked them to leave. Thus the district court did not err by denying qualified immunity to the officers.
I do believe that the officers had probable cause, but that’s besides the point. Even with probable cause.
What is the takeaway for officers on curtilage arrests?
So what’s the takeaway here? Please do not forget, my friends, that curtilage is protected like the home itself. Therefore you are going to need consent, and here they didn’t have it. You’re going to need a recognized exception like exigency, right, or you need a warrant to be there. If you don’t have that, you are going to have to leave.
Now as far as the use of force goes, I’m not going to talk about that. Maybe the cops get qualified immunity on that, because again, they have a right to protect themselves when you have a person pulling out a firearm. But as far as the legal issue about the knock and talk and not leaving, that was a violation. The department will pay on that violation, and because somebody ended up dying there, it’s going to have obviously severe consequences.
How do you tactically retreat when you have been legally beat?
Now I have taught in Nevada for many, many years. I’ve taught many officers in Nevada. I’m not trying to disrespect any officer, okay. So I know officers in Sparks are going to watch this, and I love all you, okay. And I know that you have a hard job to do. I’m not saying that if I didn’t have all my legal training I wouldn’t have done the same thing.
But the takeaway for all officers around this country is please understand the rules of engagement, and please have the mental capacity to tactically retreat when you have been legally beat. We win most of these issues, right, because the law is overwhelming in law enforcement’s favor. But there are many times that the law is not, and if it’s not, you have to leave. You have to tactically retreat and go come up with a plan B that complies with the Constitution.
And with that, my friends, I hope that I’ll see you in one of our classes. We have classes all around the country. Go to Blue to Gold and check it out. You can also attend online. Our online training is a live stream, so you’re actually watching a live class and you’re participating online. It’s actually a lot of fun. Make sure that your fellow officers do not fall for this trap, okay, because you know some will. And until next time, my friends, you stay safe.
The short version
- Curtilage is that area of a high expectation of privacy around the home, and a person can own more property than curtilage.
- Think backyards, gardens, carports, porches and so forth, areas where domestic life occurs. Driveways can be curtilage under the right conditions.
- These knock and talks are consensual encounters. We don’t have the authority to not leave if they don’t want us to be there, unless you have some exigency.
- Exigency is a now or never type of mentality. If we leave, what bad is going to happen? Is somebody going to be hurt? Is evidence going to be destroyed? If the answer is no, then we don’t have exigency.
- Felony alone does not create the exigency. Even murder does not create exigency.
- Curtilage is protected like the home itself. You are going to need consent, a recognized exception like exigency, or a warrant to be there.
- If you don’t have that, you are going to have to leave.
- Please have the mental capacity to tactically retreat when you have been legally beat.
Related from Blue to Gold
This article is an edited transcript of Roadside Chat Ep. #500. 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.
