Ralph Gene Carloss lived in Tahlequah, Oklahoma—a city in Cherokee County located at the foothills of the Ozark Mountains. He is an ex-felon who lived in a single-family dwelling located in what was described as a “pretty old area” in the middle of Tahlequah. The owner of the residence wanted to make sure that the public knew that he or she valued the privacy of their home. They posted “No Trespassing” signs around the house and on the front door.
An agent with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) named Ashley Stephens received information from an unidentified source that Carloss was a felon in possession of a firearm and was selling methamphetamine from this residence. Stephens contacted a Tahlequah police officer named Elden Graves who joined her in a visit to the residence.
No Trespass Signs in Yard, On Front Door, Tacked on Tree in Side Yard, on Post Next to Driveway
The residence did not have a fence but it did have a number of “No Trespassing” signs in the yard and on the front door. There was a “Private Property No Trespassing” sign tacked to a tree in a side yard and a “No Trespassing” sign tacked to a three-foot post located next to the driveway.
Two other signs, one located on another pole next to the driveway and the other on the front door, warned, “Private Property Hunting, Fishing, Trapping or Trespassing for Any Purpose is Strictly Forbidden Violators Will Be Prosecuted.”
All the signs were “professionally printed” with yellow or orange lettering against a black background.
Although the two officers would later testify in court that they did not “recall seeing any of these signs” the day they visited the residence, the Tenth Circuit Court of Appeals in a March 11, 2016 opinion said there was ample evidence in the record that the signs were posted as described.
Agents Knock on Front Door
Once at the residence and parked in its driveway, the two agents walked up to the door and knocked. The appeals court said the officers heard “movement” inside the house but no one responded to their knocks.
The officers testified at a pretrial hearing that a “short time later” a woman named Heather Wilson exited out the back door of the residence and met the officers in a side yard.
The officers explained the purpose of their visit, asking if anyone else was in the residence. Wilson responded that Carloss and two other individuals were inside.
Carloss then exited the residence from the backdoor and joined the group in the side yard.
The appeals court took note of the fact that at no time did either Carloss or Wilson “point out the ‘No Trespassing’ signs to the officers or ask the officers to leave.”
The officers pointedly told Carloss they “suspected” he had a machine gun in the residence to which he replied that he could not be around “ammunition” because of his criminal record.
Carloss told the officers that he did not own the residence but had a room there. When the officers asked if they could search the residence, Carloss responded he would have to get “the man of the house” (who he described as the owner).
Allowed Agents to Accompany Inside
As he turned to go back into the house, the officers asked if they could accompany him to which he replied, “sure.”
Once in the house, Carloss led the officers to his room where they saw drug paraphernalia and a white powder residue they suspected was methamphetamine.
Owner Called Attorney, Refused Search
About that time the other two residents entered the room, one of whom was the owner. The officers asked if they could search the residence. One of the two residents asked if the officers had a warrant. They did not. The resident called his attorney after which he informed the officers that they could not search the residence and then asked them to leave.
Left and Obtained Warrant
The officers left the residence as requested, but based on the incriminating evidence of drug use in Carloss’ room, they obtained a warrant, returned, and conducted a search of the residence. The search discovered “multiple methamphetamine labs,” lab components, and “a loaded shotgun, ammunition, two blasting caps, and other drug paraphernalia.”
Carloss and one of the other residents were arrested and indicted for federal drug and weapons charges.
Motion to Suppress
Carloss filed a motion to suppress the evidence seized during the search. The district court denied the motion after which Carloss pleaded guilty to conspiring to possess pseudoephedrine and was sentenced to 49 months in prison.
His conditional plea permitted him to appeal the district court’s denial of his suppression motion.
The primary issue before the Tenth Circuit was whether the officers going to the door of the residence, knocking, and seeking to speak with Carloss was a Fourth Amendment violation.
Investigative Knock and Talk Does Not Violate 4th Amendment
The Tenth Circuit has long held that an “investigative knock-and-talk” does not violate the Fourth Amendment. The appeals court adopted the rule that “as commonly understood, a ‘knock and talk’ is a consensual encounter and therefore does not contravene the Fourth Amendment, even absent reasonable suspicion.”
However, the Supreme Court in 2011 held that while a law enforcement officer may knock at someone’s door, the home’s occupant is free to terminate a conversation the officer at any time, and, in fact, does not have to even engage in the conversation by simply not answering the knock.
No Obligation to Open Door
As the Supreme Court said:
“Whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.”
In the Carloss case, the Tenth Circuit noted that when the officers went to the residence and knocked on the front door, they did not have any intention of conducting a search. They did not try to gather any evidence from the front porch about what was “occurring inside the house” nor did they find any incriminating evidence on the front porch.
The courts have consistently held, in effect, that a front door creates an “implied license” that anyone can walk up to the door and knock.
On appeal, Carloss sought to limit this implied license by pointing to the “No Trespassing” signs about the yard and on the front door of the residence. He had some support for this argument.
Last May, a Tennessee Court of Appeals ruled that “… the emerging rule appears to be that an implied invitation of the front door can be revoked but that the revocation must be obvious to the casual visitor who wishes only to contact the residents of a property.”
The Tenth Circuit sought to narrow this “emerging rule” by finding that all of the “No Trespassing” signs in the yard and on the door of the house where Carloss resided “would not have conveyed to an objective officer that he could not go to the front door and knock, seeking to speak consensually with Carloss.”
Presence of No Trespass Signs Not Enough to Revoke Implied Invitation to Approach Front Door
The appeals court took its narrow approach even further, saying: “ … just the presence of a ‘No Trespassing’ sign is not alone sufficient to convey to an objective officer, or member of the public, that he cannot go to the front door and knock. Such signs, by themselves, do not have the talismanic quality Carloss attributes to them.”
The Tenth Circuit did indicate that such signs made a part of the home’s curtilage or placed inside an enclosed front yard used for intimate activities of the home and also made part of the home’s curtilage would be sufficient notice of privacy protected by the Fourth Amendment.
What was left unsaid in the Carloss decision is whether a law enforcement officer, or a general member of the public, can, after receiving no response to a knock, walk around the home looking in the windows or going to the backdoor to knock in an effort to speak to the owner of a property.
Apparently the only way to fully protect the privacy of the home is to encircle it with a privacy fence that completely conceals it from view; place a pick-proof lock (preferably with a skull and bones symbol on it) on the gate; tack a sign to the gate informing any law enforcement officer or member of the public that they do not have an “implied license” to knock and talk; and place another sign with the owner’s contact information for anyone wishing to speak to him or her.
Perhaps a moat and a few alligators might help get the privacy message across.