Recently, I received a favorable outcome from a case I argued in Oregon before the Court of Appeals. In that case I argued that when a property owner intends to exclude the public by posting no trespassing signs, constructing fences, putting up gates, etc., then a police officer needs a legal justification to enter the property. The legal justification required is a warrant, or if absent a warrant, the officer needs to comply with on of the clear exceptions to the warrant requirement.
In the Oregon case the officer followed my client on a country road for over a mile. My client was driving in a area where there had been burglaries in the past, but not on the night he was driving. My client committed no traffic violations while the officer was following him. My client pulled his truck onto his family’s property, passing through a perimeter fence that surrounded the property and by a no trespassing sign located at the entrance of the property.
The officer followed my client onto his property to inquire why he was there. As the officer approached he could smell alcohol on my client’s breath. The officer then proceeded to do a DUI investigation and arrest my client for DUI.
When we tried the case in the trial court, we filed a motion to suppress the DUI evidence based on an illegal search of my client’s property. Our motion was denied. We filed an appeal and on July 22, 2015 a decision was made. Reversed and Remanded back to the trial court. Now the court must decide if the methods to exclude the public were reasonable.
As I practice now in Utah, I was curious if there was a similar body of law that requires legal justification to enter private property outside the curtilage of the home when the property owner intends to exclude the public by posting no trespassing signs, building fences, and constructing gates.
The answer. NO. This area of the law is under-developed in Utah. Generally, anything outside the curtilage of the home does not enjoy an expectation of privacy. Anything outside the curtilage of the home remains unprotected under the Fourth Amendment, even when fenced, or posted with “no trespassing” signs. Oregon law is more protective of private property. It would be nice if Utah adopted a similar approach.