Curtilage – Can a Police Officer Search Your Yard Without a Warrant?

In State v. Bash, a unanimous S.C. Supreme Court upheld the circuit court’s suppression of powder and crack cocaine based on the officers’ unconstitutional search of the defendant’s yard without consent or a warrant.  An officer testified at trial that “one of the agents . . . received . . . a phone call stating that there was drug activity at a particular residence, and we . . . drove over there and handled it.”  The officers went to the house and, instead of going to the front door, they drove down a dirt road by the back of the house where some people were standing by a shed.  One person threw something down that the officer said looked like drugs, and another person jumped out of a truck and ran.  Bash was charged with trafficking greater than 400 grams of cocaine and trafficking greater than 10 grams of crack cocaine.  The trial judge suppressed the drugs, finding that the officers conducted an illegal search of the curtilage of Bash’s home in violation of the Fourth Amendment, and the Supreme Court agreed.

What is Curtilage?

“The curtilage of a home is “the land immediately surrounding and associated with the home” and is “part of the home itself for Fourth Amendment purposes.”  The curtilage may include the yard of a house, outbuildings or sheds, or a garden.  It is the area immediately surrounding a home which a person can reasonably expect will remain private.   The Fourth Amendment requires that police obtain a warrant based on probable cause before searching a person’s home, absent an exception to the warrant requirement, and this protection extends to the curtilage of a person’s home as well.

In this case, the officers proceeded down a dirt road that, although a public road, goes to only a few residences and dead-ends on Bash’s property.  There were trees lining the road that partially blocked the view of the property.  The men were standing on the property by a shed and near a grill, the officers did not state any exigent circumstances that would have allowed them to enter the property without a warrant, and their stated purpose in proceeding to the backyard was to look for drugs.

Knock and Talk

The prosecutor argued that the officers were there to conduct a knock and talk, but the Court disagreed, stating that the Fourth Amendment does not “allow you to roll up in somebody’s backyard when your sole purpose for going there is to search it.” The trial court went on to find that:

[The officers] roll[ed] up in the backyard solely to search for drugs. And there’s no reasonable interpretation of the officers’ testimony other than that’s why they were there. They were not there to politely ask the homeowner, Hey, are you selling drugs out of your house? They were there to see if they could find any.

A “knock and talk” does not violate the Fourth Amendment.  A knock and talk “occurs when a law enforcement officer . . . approaches a residence by a route available to the general public, knocks on the front door of the residence, and speaks with an occupant of the residence who responds to the knocking.”  Basically, an officer has the same right to walk up and knock on your door that any other citizen would have like a door to door salesman or girl scout selling cookies.

The Court found that this was not a knock and talk because the officers bypassed the front door and proceeded to the backyard.  Furthermore, the officers’ own testimony was that their intent was to search for drugs and not to simply talk to the homeowner.  Without a warrant, consent, or exigent circumstances, the officers’ entry on the property with the sole purpose of searching for drugs was in violation of the Fourth Amendment.

Why Does it Matter?

I am proud to live in a country where individual rights, freedom, and lives matter.  The Bill of Rights, and the Fourth Amendment in particular, stands between our people and what would otherwise be an inevitable spiral into a police state where government officials do whatever they want to do with impunity.  Consider the opposite extreme of Duterte’s drug war in the Phillipines, where a nation’s elected president has called on police and citizens to murder suspected criminals without arrest or trial.

“If you destroy my country, I’ll kill you. That’s a legitimate thing,” Duterte said. “If you destroy our young children, I will kill you. That is a very correct statement.”

Threatening criminals with death is not a crime, he added, and if they’re killed by the thousands, “that’s not my problem.”

“My problem is how to take care of the law-abiding, God-fearing young persons of this Republic,” Duterte said.

Duterte has compared himself to Hitler, and has said that he is happy to slaughter drug addicts like Hitler massacred Jewish people.  Duterte and Hitler are two examples of why it matters, why we have a Bill of Rights and Fourth Amendment, and why we need to protect it from government officials bent on destroying it or ignoring it.

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