State v. Christopher D. Wilson, 2020AP1014-CR, District 1, 5/11/21 (one-judge decision; ineligible for publication); PfR granted 11/17/21; case activity (including briefs)
Police lawfully entered Wilson’s backyard under the “knock and talk” exception to the Fourth Amendment warrant requirement.
The officers were investigating a 911 call of an erratic driver. They found the car described by the caller parked and idling in an alley with the rear hatch open. The car’s registration didn’t list a nearby address, the gate of the nearby fence was ajar, and the 911 caller had seen the driver go into the backyard through the gate. The officers went into the backyard too and, not seeing anyone, knocked on the garage door. Wilson answered; he met the 911 caller’s description, had slurred speech, and stumbled on the dry, level garage floor. Police went back to the car with Wilson so he could get his identification; police saw a gun in the car and eventually arrested Wilson for driving with a revoked license and OWI. (¶¶2-9).
The court of appeals holds the officers’ entry into Wilson’s backyard was legitimate under the “knock and talk” exception grounded in Florida v. Jardines, 569 U.S. 1, 8 (2013), which referred to the “implicit license” that allows visitors to “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” This same implicit license allows police without a warrant to approach a home and knock because that is no more than what a private citizen may do. Id.; State v. Edgeberg, 188 Wis. 2d 339, 347, 524 N.W.2d 911 (Ct. App. 1994) (police may enter areas of the curtilage that are impliedly open to use by the public). It doesn’t matter that the officers went into the backyard, not to the front door, and that the path to the garage door wasn’t open to public use:
¶22 Although Jardines referred to an approach to the home by “the front path,” courts have recognized that there are instances in which officers are justified in approaching by an alternative or back entryway. See, e.g., Alvarez v. Montgomery Cnty., 147 F.3d 354, 356 (4th Cir. 1998) (stating that the Fourth Amendment does not prohibit police from entering into a backyard when circumstances indicate they might find the homeowner there); United States v. Garcia, 997 F.2d 1273, 1279-80 (9th Cir. 1993) (stating that “[i]f the front and back of a residence are readily accessible from a public place, like the driveway and parking area … the Fourth Amendment is not implicated when officers go to the back door reasonably believing it is used as a principal entrance to the dwelling”).
¶23 Under the specific facts of this case, we conclude that an “implicit license” existed for the officers to enter the backyard in the middle of the day from the alley, walk to the side garage door, and knock. Although the backyard was surrounded by a fence, the gate was open. It was not latched or locked shut. As a result, there is no clear indication that visitors were intended to be excluded from entering. See Edgeberg, 188 Wis. 2d at 346-47 (distinguishing the entry of a porch with an unlocked screen door leading to an interior front door from the entry of a locked hallway that was only accessible to a limited group).
¶24 Moreover, there was reason to believe that someone was in the backyard. Prior to entering the backyard, Officer Siefert spoke to the 911 caller who stated that the driver of the car … had opened the fence and entered the backyard. ….
¶25 Thus, here, we conclude that the officers conducted a permissible knock and talk investigation. Wilson had no obligation to open the door or speak with the officers. See Kentucky v. King, 563 U.S. 452, 469-70, 131 S. Ct. 1849 (2011). It was not until after Wilson left the backyard and returned to the car that any seizure occurred.
