The Fourth Amendment protects against unreasonable searches and seizures. Absent a warrant, or an exception to the warrant requirement, law enforcement is not allowed to enter your home. There are also areas immediately surrounding your home, known as curtilage, that enjoy the same constitutional protections as your house.

Courts often look at the Dunn factors when determining what constitutes curtilage: (1) proximity to the home; (2) how is the area being used; (3) is the area surrounded by an enclosure; and (4) what steps are taken to exclude others from the area. Generally, curtilage will include areas around the house where the activities of being at home extend. This can include areas such as a detached garage, front or back porch, and driveway in certain circumstances.

These Fourth Amendment protections are not absolute, however. The general public, and law enforcement, can go onto a person’s property. Solicitors stop by. Kids selling things for their schools or extra-curricular activities. Canvassers for political campaigns. A neighbor to tell you about a neighborhood meeting. These people are all using what is called an implied license. This implied license allows people to approach and knock at the front door of a house. A totally reasonable thing to do.

The implied license is limited in time and purpose according to social norms. Florida v. Jardines, a United States Supreme Court case, reasoned that “[c]omplying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.” An implied license does not extend to all hours. If there is an emergency, then it is a different story. If the homeowner routinely accepts visitors at all hours, and there is evidence of that, then it is a different story.

Florida v. Jardines involved a drug-sniffing dog on a front porch. It was not a simple approach to the homeowner’s front door. The cops do not need typically need a warrant for that. The implied license is not unlimited in scope. Officers cannot enter a constitutionally protected area without a customary invitation to conduct a search. In Jardines, the officers’ entry onto the curtilage of the home was not explicitly or implicitly invited.

Recently, the Minnesota Court of Appeals addressed implied licenses in LaClair v. Commissioner of Public Safety. In this case, our firm successfully obtained a reversal from the court of appeals when the police officer exceeded the scope of an implied license. The cop patrolled a neighborhood and saw a car parked in a driveway with its headlights on. An hour later, the same officer drove by and saw the headlights still on. He parked at the end of the driveway, activated his squad’s spotlight and approached the home. He walked up the driveway and noticed a puddle, which he thought was urine near the vehicle. He went to the passenger side and saw a person in the driver’s seat slumped over the center console. He then opened the driver’s door without knocking or announcing.

In LaClair, the district court judge reasoned that the driveway is a place an ordinary visitor would be expected to go. The court of appeals did not agree. The court of appeals reasoned that the district court did not consider time the officer entered the driveway for a non-emergency situation, which was at one in the morning. The court of appeals decided these were not circumstances where a person would approach a home in the middle of the night; and reversed the driver’s license revocation stemming from the DWI arrest.

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