Patios, Porches, Police, and Backyards in Texas
This post is going to focus on your home and the areas that surround it. The areas around the home, in the legal world, is called the curtilage. The curtilage has the almost identical constitutional privacy protections as does your home. The reason why is because this part of your property is so closely related to the home and family activities. To enter this area, police need to have either a Search Warrant or Warrant of Arrest. The big difference between your home, Patios, Porches, Police, and Backyards in Texas is that the inside of your home isn’t in plain view. Plain View is an exception to the warrant requirement under the constitution and I’ll cover that in a later post.
Patios, Porches, Police, and Backyards
For the sake of this post, we’ll assume that your patio or porch is in the backyard of your house. We’ll also assume that you have a tall wooden fence surrounding your backyard. Having a fence around your backyard shows the world and the rest of society that you want to keep that area private and exclude others. This may also include posting signs around your property. The general rule is that officers don’t have the right to search these areas because you have a reasonable expectation of privacy in these areas. This expectation comes from society’s norms and customs. In order to search your backyard, officers would generally need a search warrant. However, if a police officer is legally authorized to be in an area, the officer doesn’t have to shield her eyes from illegal activities or items.
What if there is a pathway to the backyard and an open gate? Would Police need a warrant?
Similar to the rule above regarding society’s expectations, police are required to follow the same rules. A pathway would be considered a “usual or indicated” form of access. This means that you should expect people to use this pathway to you backyard and the pathway likely encourages them to. Police can’t take different routes into your yard than normal visitors would for the sole purpose of searching. If police knocked on the front door, and heard no response, they could follow the pathway around back to the open gate. The open gate is legally symbolic of an invitation to enter the backyard and your intent not to exclude others. In this situation police likely wouldn’t need a warrant because the gate is open.
What if your backyard has no fence? What if it’s a chain link fence?
If you can see the backyard in plain view, then police are also allow to see in your backyard. Police don’t have to shield their eyes from illegal items or activities that are in plain view. Arguably, these items or activities are being shown to the whole world. Anyone who might drive by can see into the yard. Police are no different. If you want more privacy, then put a fence up that people can’t see through into your backyard. For legal purposes, this shows a greater expectation of privacy in that part of your home and property.
What if you tell the police to leave as they approach the backyard?
Assuming the police don’t already have a Search Warrant or Warrant of Arrest, then you are perfectly within your right to tell them to leave. At that point, police have no implied authority to stay on your property and they have to leave. Illegal searches by police can mean that the evidence against you can be thrown out of Court. They might come back with a warrant later. But that’s OK! Make them do their constitutional duty and go get a warrant, signed by a Judge. Whether it’s searching your home, or other areas, police officers need enough evidence to demonstrate probable cause for a Judge to be convinced that a crime was committed or was being committed on the premises. We have the Fourth Amendment protections for a reason… SO USE THEM.