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Look After Your Fences: 12th District finds no violation of the law when officer conducts a warrantless search through a broken fence.

by | Mar 24, 2021 | Criminal Defense

The 12th District Court of Appeals (governing Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble, and Warren counties) recently held in State v. Neanover that a deputy dog warden’s decision to look through a hole in Mr. Neanover’s privacy fence, without a warrant, was not a violation of the United States or Ohio Constitution.

Can an officer enter my property without a warrant?

Classic lawyer answer: it depends.

Even though this is a very simple question, it has a very complicated answer. Generally, the Fourth Amendment to the United States Constitution (and its Ohio equivalent) requires government actors (like police officers) to remain on public property unless they have been issued a warrant to search or seize a person or property. However, there are a myriad of exceptions to that general rule. Meaning that under certain circumstances the police do not need a warrant to search or seize you or your property.

It may be easier to address more specific questions that the 12th District answered in the Neanover case.

Can a police officer enter my driveway?

Yes.

Even though driveways are on your private property, they are not considered “private.” In other words, driveways are generally used for access to your residence from the road. Roads are public property (meaning anyone can use them). Driveways are used by friends, family, mail carriers, delivery drivers, and others every day to access our homes, for any number of reasons, from the public roadway.

Because anyone can use your driveway, you do not have what the law calls a “reasonable expectation of privacy” in your driveway. Meaning it is not a violation of your constitutional rights if a police officer enters your driveway.  While in your driveway, if that officer sees something that it is illegal or that an emergency exists (e.g. someone is harmed or a pet is in danger), then the officer can enter your property without a warrant.

Can a police officer come knock on my door?

Yes.

Just like your driveway, anyone can use a sidewalk or path to walk up to your front door and knock on it. In fact, that is the very reason why we have access routes to our front doors. If an officer parks in your driveway and walks up the path to your front door, even without a warrant, they have not violated your rights or the law. That means an officer that decides to approach your home for a “knock and talk” does not need warrant.

Like the driveway, if an officer sees something that it is illegal or that an emergency exists while on the path to your front door or while talking to you at your front door, they will not need a warrant to further investigate that matter.

Can a police officer look through my privacy fence?

It depends.

In the Neanover case, the officer parked her vehicle at the end of the driveway next to Mr. Neanover’s home. At the end of the driveway where the officer parked was a privacy fence that went around Mr. Neanover’s backyard. The officer exited her vehicle, approached Mr. Neanover’s front door, and knocked to see if anyone was home. There was no answer, so the officer walked back towards her vehicle. While back at her vehicle she peered into the backyard through a portion of the fence that was broken (the top part of the wooden picket fence was broken off). On Mr. Neanover’s deck, the officer saw a dog next to a doghouse. The reason the officer was at Mr. Neanover’s home was because her office received a complaint that Mr. Neaonver’s dog was not well and she was performing a welfare check.

Typically, areas immediately around your home like patios, porches, and backyards—especially when fenced-in—are protected from police officers unless they have a warrant. However, the 12th District decided that the officer did not violate the law or Mr. Neanover’s constitutional rights when she looked into his backyard because she did so through a hole in the fence while she was standing in his driveway. Remember, the driveway is not a private area; accordingly, the court decided there was not a trespass onto Mr. Neanover’s property because the officer stayed on the public access areas and looked through the hole in the fence.

Can a police officer enter my fenced-in backyard?

It depends.

Again, generally the police are prohibited from entering a fenced-in backyard without a warrant. However, the farther the area is from your home, the less protection you have under the law. Meaning that the police may be able to enter a portion of your land without a warrant.

For most standard suburban or urban dwellings, a privacy fence is used to block the entirety of our backyard; thus, it has greater legal protection from police interference. However, if an officer, while in a public place (like a driveway), sees something illegal occurring in our backyard or believes an emergency exists, then the officer can enter without a warrant.

In Mr. Neanover’s case, because the officer believed the dog needed medical attention, the court decided that she was permitted to unlock Mr. Neanover’s gate, enter his backyard, and remove the dog even though she did not have a warrant or permission from Mr. Neanover.

Just because it is “your property” does not mean the police are prohibited from entering it to search or seize you or your property—even if they do not have a warrant or your consent. It is important to know your Fourth Amendment rights. If you do not know your rights, it is impossible to assert them and protect yourself from governmental interference into your private life. If you believe your Fourth Amendment rights have been violated, you need to speak with an experienced criminal attorney about possible police misconduct.

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