Can The Police Search Your Backyard?
In most situations, police in California are required to attain a valid search warrant before searching a residence, including houses, apartments, and mobile homes. However, there are significant exceptions to this rule. A warrantless search may be conducted if:
- Consent: You or someone with authority over the property consents to the search.
- Exigent Circumstances: There is an imminent threat to life or risk of significant property damage.
- Search Incident to Legal Arrest: The search is connected to a lawful arrest and is necessary to ensure officer safety or prevent evidence destruction.
These rules stem from the Fourth Amendment of the U.S. Constitution and Article I, Section 13 of the California Constitution, protecting against unreasonable searches and seizures. Under the exclusionary rule, evidence obtained through an unreasonable search cannot be used against a defendant in a criminal trial.
Understanding Police Trespassing and the Fourth Amendment
Even though the Fourth Amendment of the Constitution of the United States of America protects the people against unreasonable searches and seizures, it does not bar lawful trespass by the police. It is common for officers to trespass through private property on foot or in a vehicle, and many people do not consider this offensive. However, if this entry results in the finding of items regarded as illegal, such as drugs or weapons, then issues of illegality of the entry surface.
The question, therefore, arises as to whether such an entry forms the definition of a “search” under the law. Under certain circumstances, it is a search if the defendant sets foot on private property where evidence is likely to be discovered. However, decisions on whether such an entry is lawful depend on several aspects, including its justification under the warrant exceptions.
Types of Trespassing
Criminal Trespassing:
- Involves unlawfully occupying property or refusing to leave when asked by the owner.
Police rarely engage in this type of trespassing, and if they do remain after being asked to leave, it is often justified under legal exceptions to the warrant requirement.
Technical (Common Law) Trespassing:
- Occurs when officers enter private property without permission but without committing a crime.
This type of trespassing can be deemed a “search” under the Fourth Amendment, depending on the circumstances.
Another factor involved in these circumstances is the issue of “curtilage”, which encompasses the space directly adjacent to a home and is considered part of the home in regard to the Fourth Amendment. It is important to understand these differences when considering when police entry onto private property may become an unlawful search.
When Trespassing Becomes a “Search”
Police trespassing can become a “search” if it enables officers to observe something the occupants reasonably believed would remain private. Determining whether this constitutes a search depends largely on two factors: the nature of the property entered and the steps taken by the occupants to protect their privacy.
Front Yards
The front yard is generally the least private area because it is often visible to the public and used by visitors and delivery personnel to reach the front door. Courts have ruled that officers walking on designated pathways, porches, and other access routes are not conducting a search.
Driveways: If a driveway serves as a path to the front door, an officer’s entry is not considered a search. Even if not a primary access route, the driveway is generally not protected unless specific circumstances restrict access.
Side Yards
Unfenced Areas: These are more private than front yards but still visible and accessible to the public. Privacy expectations increase with unusual or unexpected entries, such as late-night visits or detours around obstacles.
Backyards
Higher Privacy: Backyards are typically considered more private due to limited visibility, fencing, and their use for intimate household activities. Privacy expectations are stronger here, but they can be reduced if the backyard is a primary access route or the front door is inaccessible. In such cases, officers may reasonably enter the backyard to contact occupants or find another entrance.
While officers frequently enter private property, their actions may cross into an illegal search if they infringe on areas where occupants reasonably expect privacy, especially in less publicly accessible parts of the property, like side and backyards.
