Hello everyone. Question for you: can you arrest a suspect who committed domestic violence if he is standing in his fenced in front yard?
This question comes from a brand new sergeant in Nevada. The suspect committed a domestic battery with strangulation and child abuse, the victim fled the residence with the child to a safe location to call 911, and the officers spoke with her and determined probable cause did exist to arrest the suspect for a felony. When they went to the house they saw the suspect in his yard, which is surrounded by a chain link fence with a padlock on it.
Can police jump a fence to arrest a suspect in his front yard?
So this is one of those situations where you wouldn’t feel authorized to do a knock and talk, because you have to jump the person’s fence. So now that we have the probable cause, and we see him in the yard, can we jump the fence and get him? The answer is no. And one thing I do know is that many of you out there would have absolutely jumped that fence. Look, I’m going to tell you about the Ninth Circuit, that’s where we’re in, I’m going to tell you what the Ninth Circuit has said, but I also know that this is actually a good argument everywhere. The Ninth Circuit’s pretty extreme on this, so we definitely have a case on point here. But let’s just kind of walk through this.
So first of all, just to make it clear, you can do a knock and talk even if you have PC. Even if you talked to the victim and you have probable cause, you still want to get their side of the story, obviously. There’s no problem. But things get a little different when you are heading to their domicile with the intent to arrest them, because the Supreme Court has said in a case called Payton that you cannot enter the residence to make a warrantless arrest, even if it’s for a serious crime like a murder.
Does curtilage get the same protection as the inside of the home?
Okay, but Anthony, we’re not entering the home, we’re entering the yard. Let’s fast forward to a case called Florida v. Jardines. That is a case where the Miami police brought their drug sniffing dog onto the guy’s curtilage to sniff the front door during a knock and talk, and the dog alerted, and they got a warrant. How does that apply here? Because in that case the Supreme Court has made clear that curtilage is basically treated like the home itself. So all these rules that we got for the home, we should generally apply them to curtilage.
What are the factors for curtilage versus open fields?
So what is curtilage? Curtilage is that area adjacent to the home, very close proximity. Feet matter, as far as number of feet, yards. But once you start getting too far from the home you start getting into a place called open fields, and you’re not in curtilage anymore. And what are the factors for curtilage? Well, the Supreme Court in a case called Dunn has told us that the use of the area is extremely important. Is a front yard part of the use of the domestic life? Certainly is. The proximity to the home: this is obviously pretty close to the home, we’re in the front yard. Enclosure: we actually have a fence. You don’t necessarily need a fence to have curtilage, but it certainly helps. And sight screening: we don’t have any sight screening here. But would a court hold that this front yard under these circumstances is curtilage or open fields? Well, we know the answer. If you can imagine what this house looks like, it’s going to be curtilage.
Can you order a suspect out of his yard and arrest him at the curb?
Now we have home rules. We don’t have a public place. Now some cops say, but Anthony, I can see them, I’ll tell them they’re under arrest and to come out to the curb. Well, if you give a person an order, hey, come out with your hands up and come out here, and they comply with that, that is a seizure under the Fourth Amendment, because you have done something or said something to lead a reasonable person to believe they’re not free to leave, and they submit to your authority. So once that person exits their yard you have basically conducted a warrantless seizure, and here of course your purpose was to arrest him. But you can’t arrest people under these circumstances, not with these facts.
What happens if a suspect tells officers to leave his curtilage?
Let me introduce two cases that are on point. The first one is a Ninth Circuit case out of Reno from 2023, and maybe 22, but regardless it’s pretty new. What happened there is that the cops had probable cause for Rolando, that he committed a strong armed robbery. They went onto his curtilage to arrest him without doing a knock and talk, but just straight up like, you’re under arrest type stuff, come out, that type of thing. And Rolando told them eight times to leave, and they never left. They ended up getting to a shooting, because Rolando ended up pulling out a gun. And for our purposes here, the Ninth Circuit stated that it was clearly established that under these facts you could not stay on his curtilage and try to arrest him, or continue talking to him, because he did not want to talk. And most importantly, there was no exigency. A strong arm robbery, though a felony, is not a public danger or an emergency where we have to get this guy in custody now.
Can you arrest someone standing on his own porch without a warrant?
Another case is United States v. Smith, a case out of the federal district court in Las Vegas. What happened there was the cop had probable cause to arrest Smith. The victim was somewhere else, like the facts here. The cop then went back to the house. Smith was on his curtilage, on his porch, and the cop then went up to the porch and arrested him. They found a gun on his person. Smith is a prohibited person, and the gun is out. The reason is that the court in Smith said, though you have probable cause, you have no warrant, there is no exigency, the victim is gone, and so forth, and you went up there basically with the intent and purpose to arrest this guy on his curtilage. You cannot do that. It violates Payton, because curtilage is like being in their kitchen in some senses.
Why is curtilage the most violated area of the Fourth Amendment?
So the point is, I know a lot of cops do this. And even outside the Ninth Circuit I would caution you to be careful here, because even though it may not be clearly established in your circuit, there is something to be said about going up onto people’s curtilage. Remember, it’s not open fields that count here, but going up to the curtilage with the sole intent to go place them under arrest, without a warrant, without exigency, and without their consent. So that’s your answer. It’s probably going to shock a few of you that I’m saying this, because a lot of you would have done the exact same thing. But this is why I’ve been teaching that curtilage is the most violated thing under the Fourth Amendment. Why? Because it’s confusing, and I’m here to help you sort out that confusion. If you have any questions about this or anything else that I teach, reach out to us at Blue to Gold. Until next time, my friends, you stay safe.
The short version
- Now that we have the probable cause, and we see him in the yard, can we jump the fence and get him? The answer is no.
- You can do a knock and talk even if you have PC. Things get a little different when you are heading to their domicile with the intent to arrest them.
- Curtilage is basically treated like the home itself, so all these rules that we got for the home, we should generally apply them to curtilage.
- Curtilage is that area adjacent to the home, very close proximity. Once you start getting too far from the home, you start getting into a place called open fields.
- If you tell them to come out with your hands up and they comply with that, that is a seizure under the Fourth Amendment.
- Most importantly, there was no exigency. A strong arm robbery, though a felony, is not a public danger or an emergency where we have to get this guy in custody now.
- Be careful about going up to the curtilage with the sole intent to go place them under arrest, without a warrant, without exigency, and without their consent.
- This is why I’ve been teaching that curtilage is the most violated thing under the Fourth Amendment. Why? Because it’s confusing.
Related from Blue to Gold
- Constitutional Considerations of Warrantless “Surround and Call-Outs”
- When Can Police Enter a Backyard on a Burglar Alarm Call?
- Does Payton v. New York Apply to Porch Arrests? Explained for Officers
This article is an edited transcript of Roadside Chat Ep. #713. 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.
