Although I’ll focus on Texas, those of you elsewhere might want to check your own state and local laws and case law on this one because the “good fences” concept isn’t exclusively ours (although we like to claim it so).
Now down here in Texas, we have a long and proud heritage of protecting our rights, our property, and our privacy. We are clearly under siege from some so we do well to know our rights and get up in official faces to tell them to back the hell up when they attempt to impinge upon our rights, property and privacy. Good fences are a part of doing that but you need to understand why you need a fence in the first place. (I have left the internet jump sites in place in the quotes I use so you can go directly to those cases.)
In Duhig v. State, 171 S.W. 3d 631 (Tex. App.-Houston [14th Dist.] 2005), the court says: “The Fourth Amendment protects against unreasonable searches and seizures. U.S. CONST. amend. IV. A search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions. See Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000); Wilson v. State, 99 S.W.3d 767, 769 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). For Fourth Amendment purposes, a "search" does not occur, even when the explicitly protected area of a house is concerned, unless the individual manifested a subjective expectation of privacy in the object of the challenged search, and society is willing to recognize that expectation as reasonable. Porter v. State, 93 S.W.3d 342, 346 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (citing Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)).”
“Absent express orders from a person in possession of property not to trespass, anyone, including a law enforcement officer or common citizen, has the right to approach the front door of a residence and knock on the door. Cornealius v. State, 900 S.W.2d 731, 733-34 (Tex.Crim.App. 1995); Bower v. State, 769 S.W.2d 887, 897 (Tex.Crim.App.1989), overruled on other grounds by Heitman v. State, 815 S.W.2d 681, 685 (Tex.Crim.App.1991); Porter, 93 S.W.3d at 345.”
“While rightfully at the front door, the deputies were free to observe evidence in "plain view." What a person knowingly exposes to the public, even in his own home, is not a search subject to Fourth Amendment protection. Bower, 769 S.W.2d at 897 (citing Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)); Long v. State, 532 S.W.2d 591, 594 (Tex.Crim.App.1975). A search implies a prying into hidden places for that which is concealed. Long, 532 S.W.2d at 594. The observation of property in "plain view" involves no invasion of privacy. Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000); Swarb v. State, 125 S.W.3d 672, 680 (Tex.App.-Houston [1st Dist.] 2003, pet. dism'd); see Long, 532 S.W.2d at 594.” Blah, blah.
OK, here’s what they are getting at. Peeping Tom behavior is permitted for law enforcement. Basically, they can use binoculars, stand on one another’s shoulders to peek in windows, even shine flashlights into darkened rooms they are peeping into through windows in the dark. It’s called the “plain view” rule and it rules even when some (or most) of us would question how plain that view was. Buy blackout curtains and make sure they block every smidgen of view. I’m rather fond of the ones I can usually get at Home Depot or Lowes that go on spring rods. Rather than put the spring rod all the way through, I leave the edge over the end of the rod to catch the curtain against the frame securely, to ensure the curtain covers left to right and top to bottom all neat, tight, and no slivers of view. If it takes multiple curtain panels for a window, overlap and stitch to avoid gaps.
Personally, I like to have my windows and doors open all around my home to get a good cross flow of air. Hey, I own animals and they can get stinky when the humidity and heat shoot up in Texas! I only have 4 dogs and 3 cats and the cats have virtually moved out to enjoy their new outdoor kennel but still… And I just plain like the light and fresh air. Where does that leave me with this kind of ruling?
In Rothstein v. State, 267 W.E. 3d (Tex.App.-Houston [14th Dist.] 2008), “Absent express orders from a person in possession of property not to trespass, anyone, including a law-enforcement officer, has the right to approach the front door of a residence and knock on the door. Duhig, 171 S.W.3d at 635. In addition, it is permissible for police officers to approach the back door of a house to contact the residents after they have first tried the front door and received no answer. Id. at 637.” I must admit that I disagree with the court’s ruling on this one. Texas law rather clearly sets forth what is criminal trespass and, to the extent that an officer is committing what would be considered criminal trespass, I’m not sure they should be so easily excused. Well, OK, for now I’ll work within those parameters (although I think this ruling is likely to get modified down the road).
So we definitely need to give “express orders… not to trespass” and those orders don’t require one to stand guard at the property line to chase people off. This is where fences can come in handy. Back to the Duhig case we go.
“The Fourth Amendment protections extend to the curtilage of a home. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); Gonzalez v. State, 588 S.W.2d 355, 360 (Tex. Crim.App.1979). "Curtilage" is the land immediately surrounding and associated with the home. State v. Peyrani, 93 S.W.3d 384, 387 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). However, not every trespass upon the curtilage constitutes a search. See Washington v. State, 152 S.W.3d 209, 214-15 (Tex.App.-Amarillo 2004, no pet.); Buchanan v. State, 129 S.W.3d 767, 771-73 (Tex.App.-Amarillo 2004, pet. ref'd); Watts v. State, 56 S.W.3d 694, 699 (Tex.App.-Houston [14th Dist.] 2001), rev'd on other grounds, 99 S.W.3d 604 (Tex.Crim.App.2003).” Make a little mental note here folks. Not every TRESPASS is a search and not every TRESPASS is a CRIMINAL trespass but these kinds of TRESSPASSES by law enforcement may well be CRIMINAL TRESPASS and you should complain loudly and clearly when they are.
Duhig: “An officer may enter the curtilage of a house in an effort to contact its occupant when the occupant has not manifested his intent to restrict access by locking a gate or posting signs informing the officer he is not invited or the officer does not deviate from the normal path of traffic. Washington, 152 S.W.3d at 215; Buchanan, 129 S.W.3d at 773.” There it is folks. You NEED to “manifest your intent” with locked gates OR by posting signs. Personally, I do both. I might have the signs down temporarily or the gate unlocked briefly but it would be incredibly rare for me to have the signs down AND the gates unlocked and the potential invasion by unwanted visitors is exactly why.
Guys, do NOT go telling people to ignore those signs and “come on in”! Never forget that law enforcement officers are allowed to lie and that those you think your friends may well be there for nefarious purposes. You really shouldn’t be letting people come on your property if you have animals these days. It’s just too risky for the well being of your animals. You may want to consider having people sign non-disclosure agreements if they need to be on your property. I hate having to suggest that but it’s just the times we currently live in.
You NEED decent fencing and I’d suggest that the absolute minimum you should have is that which gives notice not to trespass. Texas Penal Code:
- (1) had notice that the entry was forbidden; or
- (2) received notice to depart but failed to do so.
- (b) For purposes of this section:
- (1) "Entry" means the intrusion of the entire body.
- (2) "Notice" means: …
Go to the link. The formatting is better and makes for easier reading. Remember that your fencing must meet more than these minimums to have a “subjective expectation of privacy”. Note that most of the legal decisions are on the Fourth Amendment of the US Constitution. There is a companion provision in the Texas Constitution at Art. 1, Sec. 9. States cannot provide lesser rights than the federal constitution but they can provide more and I’d certainly be arguing that the inclusion of “agricultural land”, as well as the other broad language, in the criminal trespass statute indicates that we prize our rights; that we want those areas protected from unwarranted searches.
A while back, I ranted about Dallas Animal Services commission’s emphasis on “it’s an affirmative defense” and how that’s really “code” for go ahead and write the ticket. 2 can play that game. Texas Penal Code Sec. 30.05 (e): “It is a defense to prosecution under this section that the actor at the time of the offense was: a firefighter or emergency medical services personnel, as defined by Section 773.003, Health and Safety Code, acting in the lawful discharge of an official duty under exigent circumstances.” File your complaints, insist on prosecution, make them put up their defenses/prove up those exigent circumstances. We should all loudly and clearly object to exigent circumstances based on “anonymous” tips! If they don’t want to play nice and reasonable, neither should we.
And I will not be telling you that any of this will actually keep people off your property or out of your house. It won’t. Professional, competent officers and prosecutors will know these laws and cases and will respect them. Sleaze will not. Little piggies will push open gates, pretend not to see signs. Big piggies will break locks and say they weren’t there at all and will toss signs into bushes. Make a habit of having photo sessions around the perimeter of your property so you will have evidence of how it normally is over time to prove the lie when they make. You may want to check into security cameras and tape/CD/internet archiving. All are coming within reasonable range and can be positioned by YOU to show how you manifested your intent to have privacy without showing what you wish to keep private.
If your rights have been violated, COMPLAIN and SUE. You also might want to read Chapter 39 of the Texas Penal Code on Abuse of Office. For lawyers and judges, there’s also the SBOT and Judicial Commissions where one can seek help and file complaints as well as filing with the Texas Attorney General.
Now I’m down to a couple of loose ends on these Duhig and Rothstein cases that I just don’t want to leave hanging. I rather dislike loose ends…
Duhig: “In his third issue, appellant complains that the deputies entered his house without a warrant. In response, the State argues that the deputies were justified in entering the house pursuant to the "emergency doctrine." See Brimage v. State, 918 S.W.2d 466, 500-01 (Tex.Crim.App. 1996) (op. on reh'g) (recognizing that pursuant to the emergency doctrine, the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid). We need not decide whether the deputies were justified in entering appellant's house pursuant to the emergency doctrine…” Nice duck! The officers (actually, probably the prosecutor drafting the affidavit) neatly left out reference to anything seen while actually in the house so the court didn’t have to make this decision/ruling. Now maybe the court would have found the “emergency” or exigencies for entry but I have my doubts. “the open patio door gave the deputies concern that a drug-related home invasion might be occurring. They decided to enter the house out of concern for the residents.” Does that make you reasonably believe that someone is in need of immediate aid? Or does it sound like an over active imaginary excuse to gain entry? Deputy Morrison, I ain’t buying that whopper of an imaginary tale.
Also from Rothstein: “Once the deputies approached the back door, they saw the back door had been kicked in. This undisputed fact, in conjunction with the call to police reporting a burglary in progress, provided the deputies both the probable cause and exigent circumstance needed to enter appellant's residence without a warrant so they could determine if burglars were still inside or if there were victims needing assistance. See Barocio v. State, 158 S.W.3d 498, 500 (Tex.Crim.App.2005) (holding the possibility a burglary is in progress or has been recently committed may provide police officers with exigent circumstances to justify a warrantless entry). We overrule appellant's contention on appeal that the deputies conducted an unconstitutional search of the curtilage of his residence.” In the Rothstein case, deputies were responding to an alleged robbery in progress call from “an unknown person”, tried the front door, then the back which was supposedly kicked in, and then entered. The resident was not present and did not make the call. I find this ruling more than a little troublesome and I don’t find a good answer either.
“undisputed fact, in conjunction with the call to police reporting a burglary in progress” The facts are undisputed because the resident was not home and there were no camera or other witness. The caller was “unknown” which is rather fantabulous in the era of 911 if you ask me. How convenient to show up while the resident is away and in response to an unidentified caller. I really can’t come up with a decent reason for making an anonymous call unless one has an ulterior motive; nor, with the current 911 technology, am I inclined to believe there are as many anonymous calls as the police would like us to believe.
There could be a resident in the home and desperately in need of help but the facts of this case simply don’t meet my idea of a reasonable belief that someone within may be in need of immediate assistance. Furthermore, this ruling encourages vigilantes to commit crimes and then make anonymous tip calls to instigate in what would otherwise be an illegal and unconstitutional search.
As I said, for the court ruling, I don’t have a decent solution thought up (yet). In the meantime, I’m considering a custom sign for my fence. Maybe something like:
TO ALL LAW ENFORCEMENT AND EMERGENCY PERSONNEL, IT IS MY INTENT TO RESTRICT ACCESS TO THIS PROPERTY. YOU ESPECIALLY DO NOT HAVE MY CONSENT TO ENTER UPON THIS PROPERTY.
I DON’T WANT YOUR HELP. GO AWAY.
Seems preferable to letting my fur kids land in the hands of the killer animal rights activists to me. Better to risk my own health than their lives. Besides, I can always call a neighbor to drag me out to the gate/ambulance and I know my neighbor isn’t going to panic and shoot my dogs like so many law enforcement seem inclined to do these days.