Can Police Search My Private Property Without a Warrant?

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A home is someone’s most intimate and familiar place.  Home is supposed to be where a person should feel safe.  As such, the 4th Amendment to the United States Constitution protects individuals from unreasonable searches and seizures by the government.  The Fourth Amendment stands for “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”  Silverman v. United States, 365 U.S. 505, 511 (1961).   When the government obtains information by physically intruding on a person’s houses, papers, or effects, a “government search” has occurred.  If evidence is obtained by the government in violation of the Fourth Amendment, the evidence is dubbed “fruit of the poisonous tree,” and will be excluded from being presented at trial.

If the police believe that criminal activity is occurring at a specific location, they typically must obtain a search warrant supported by probable cause to search the area.  So, to what extent can the government intrude on an individual’s private property without a search warrant?

The area immediately surrounding and associated with the home (also known as the curtilage) is part of the home itself for Fourth Amendment Purposes.  The front porch of a house is a classic example of curtilage.  To determine whether an area surrounding a house is considered curtilage, and thus protected by the Fourth Amendment, courts apply a totality of the circumstances analysis.  This analysis examines the proximity of the area to the home, whether the area is included within an enclosure surrounding the home (like a fence), the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

The United States Supreme Court has ruled that no unreasonable search occurs when police enter areas of curtilage impliedly open to use by the public to conduct legitimate business.  An example would be police using an established walkway up to the front door of a house to “knock and talk” to the occupants.   The walkway and front porch of a house are areas in which anyone would feel like they have an implied license to enter.  Fourth Amendment violations occur when police veer off of these common areas without a warrant and subsequently locate evidence.

In Divello v. State, Officers responded to an anonymous tip that marijuana was being cultivated and sold at a particular house.  When police arrived, the officers knocked on the front and back door of the house, which appeared to be the normal doors for visitors to use when visiting the house.  When officers received no reply at either door, the officers walked to the side of the house where a truck was parked approximately four feet from the house.  When officers walked between the truck and the house, they noticed what they suspected was the smell of burnt marijuana coming from inside the house.  The officers were approximately 18 inches away from the side of the house when they smelled the marijuana.  Based off this information, officers requested and were later granted a search warrant to search the house, where they located substantial amounts of marijuana.  The Indiana Court of Appeals ruled that the officers infringed on the defendant’s Fourth Amendment rights and any evidence gained from the search warrant was fruit of the poisonous tree.  The Court reasoned that the defendant had a reasonable expectation of privacy in the area of his residence where the truck was parked, and thus the police officers’ warrantless entry onto this portion of his property violated the Fourth Amendment.  Divello v. State, 782 N.E.2d 433 (Ind. App. 2006).

Do you or someone you know have a case in which you suspect the police improperly gathered evidence?  Contact the experienced attorneys at Banks and Brower anytime at or at 317-870-0019.