Opposition Brief — James Robert Christensen, Jr., Petitioner v. Tennessee

Supreme Court briefDec 11, 2017

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NO. 17-321

In the Supreme Court of the United States

JAMES ROBERT CHRISTENSEN, JR.,

Petitioner,

TENNESSEE,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Tennessee

BRIEF IN OPPOSITION

Herbert H. Slatery III

Attorney General and Reporter

State of Tennessee

Andrée S. Blumstein

Solicitor General

Sarah K. Campbell

Special Assistant to the Solicitor

General and the Attorney General

Counsel of Record

Jonathan David Shaub

Assistant Solicitor General

Office of the Attorney General

P.O. Box 20207

Nashville, TN 37202

(615) 532-6026

sarah.campbell@ag.tn.gov

Counsel for Respondent

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

QUESTION PRESENTED

Whether the posting of a “No Trespassing” sign on

private property is sufficient to revoke a law

enforcement officer’s implicit license to enter the

property to conduct a “knock and talk.”

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3

A. Factual Background . . . . . . . . . . . . . . . . . 3

B. Procedural Background . . . . . . . . . . . . . . 8

REASONS FOR DENYING THE PETITION . . . . 15

There Is No Conflict Among the Federal

Courts of Appeals or State Courts of Last

Resort on the Question Presented. . . . . . . . 15

A. The Tennessee Supreme Court’s Decision

Does Not Conflict with Any Federal Court

Decision. . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. The Tennessee Supreme Court’s Decision

Does Not Conflict with Any Decision of a

State Court of Last Resort. . . . . . . . . . . . 20

II.

This Case Is Not an Appropriate Vehicle To

Resolve the Question Presented. . . . . . . . . . 26

III.

The Tennessee Supreme Court’s Decision Is

Correct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

iii

TABLE OF AUTHORITIES

CASES

Birchfield v. North Dakota,

136 S. Ct. 2160 (2016) . . . . . . . . . . . . . . . . . . . . 31

Bush v. Cnty. of San Diego,

No. 3:15-cv-00686, 2016 WL 6070174

(S.D. Cal. Oct. 17, 2016) . . . . . . . . . . . . . . . 16, 17

Cnty. of L.A. v. Mendez,

137 S. Ct. 1539 (2017) . . . . . . . . . . . . . . . . . . . . 30

Cooksey v. State,

350 S.W.3d 177 (Tex. Ct. App. 2011) . . . . . 24, 25

CRST Van Expedited, Inc. v. EEOC,

136 S. Ct. 1642 (2016) . . . . . . . . . . . . . . . . . . . . 28

Davis v. United States,

327 F.2d 301 (9th Cir. 1964) . . . . . . . . . . . . . . . 19

Dep’t of Transp. v. Ass’n of Am. R.R.,

135 S. Ct. 1225 (2015) . . . . . . . . . . . . . . . . . 28, 29

Florida v. Jardines,

569 U.S. 1 (2013) . . . . . . . . . . . . . . . . . . . . passim

Illinois v. Gates¸

462 U.S. 230-32 . . . . . . . . . . . . . . . . . . . . . . . . . 31

Jones v. State,

943 A.2d 1 (Md. Ct. Spec. App. 2008) . . . . . 25, 26

Katz v. United States,

389 U.S. 347 (1967) . . . . . . . . . . . . . . . . . . passim

Kyllo v. United States,

533 U.S. 27 (2001) . . . . . . . . . . . . . . . . . . . . . . . 21

Minnesota v. Nat’l Tea Co.,

309 U.S. 551 (1940) . . . . . . . . . . . . . . . . . . . . . . 23

Missouri v. McNeely,

569 U.S. 141 (2013) . . . . . . . . . . . . . . . . . . . . . . 31

Ohio v. Robinette,

519 U.S. 33 (1996) . . . . . . . . . . . . . . . . . . . . . . . 30

Oliver v. United States,

466 U.S. 170 (1984) . . . . . . . . . . . . . 20, 21, 22, 23

People v. Scott,

593 N.E.2d 1328 (N.Y. 1992) . . . . . . . . . . . . . . . 23

Powell v. State,

120 So. 3d 577 (Fla. Dist. Ct. App. 2013) . . 24, 25

Samson v. California,

547 U.S. 843 (2006) . . . . . . . . . . . . . . . . . . . . . . 31

Sneed v. State,

423 S.W.2d 857 (1968) . . . . . . . . . . . . . . . . . . . . . 8

State v. Crowley,

--- S.3d ----, 2017 WL 4318598

(Fla. Dist. Ct. App. Sept. 29, 2017) . . . . . . . . . . 25

State v. Dixson,

766 P.2d 1015 (Or. 1988) . . . . . . . . . . . . . . . 22, 23

State v. Hubbel,

951 P.2d 971 (Mont. 1997) . . . . . . . . . . . . . . . . . 23

State v. Kochel,

744 N.W.2d 771 (N.D. 2008) . . . . . . . . . . . . 23, 24

State v. Kuchera,

Nos. 27375-6-II, 27376-4-II, 2002 WL 31439839

(Wash. Ct. App. Nov. 1, 2002) . . . . . . . . . . . . . . 23

State v. Mittleider,

809 N.W.2d 303 (N.D. 2011) . . . . . . . . . . . . . . . 24

State v. Odom,

928 S.W.2d 18 (Tenn. 1996) . . . . . . . . . . . . . . . . 32

State v. Roubique,

421 So. 2d 859 (La. 1982) . . . . . . . . . . . . 20, 21, 22

United States v. Bearden,

780 F.3d 887 (8th Cir. 2015) . . . . . . . . . . . . . . . 18

United States v. Brown,

510 F.3d 57 (1st Cir. 2007) . . . . . . . . . . . . . . . . 28

United States v. Carloss,

818 F.3d 988 (10th Cir. 2016), cert. denied,

137 S. Ct. 231 (2016) . . . . . . . . . . . . . . . . . passim

United States v. Depew,

8 F.3d 1424 (9th Cir. 1993) . . . . . . . . . . . . . . . . 19

United States v. Dunn,

480 U.S. 294 (1987) . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Hopper,

58 Fed. Appx. 619 (6th Cir. 2003) . . . . . 17, 18, 19

United States v. Knights,

534 U.S. 112 (2001) . . . . . . . . . . . . . . . . . . . . . . 30

Yee v. City of Escondido, Cal.,

503 U.S. 519 (1992) . . . . . . . . . . . . . . . . . . . . . . 29

CONSTITUTIONAL PROVISIONS

Or. Const. art. I, § 9 . . . . . . . . . . . . . . . . . . . . . . . . 22

Tenn. Const. art. I, § 7 . . . . . . . . . . . . . . . . . . . . . . . 8

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . passim

STATUTES AND RULES

Sup. Ct. R. 10(b) . . . . . . . . . . . . . . . . . . . . . . . . 19, 24

Sup. Ct. R. 14.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Tenn. Code Ann. § 39-16-602 . . . . . . . . . . . . . . . . . . 8

Tenn. Code Ann. § 39-17-433 . . . . . . . . . . . . . . . . . . 8

Tenn. Code Ann. § 39-17-435 . . . . . . . . . . . . . . . . . . 8

Tenn. Code Ann. § 39-17-1324. . . . . . . . . . . . . . . . . . 8

INTRODUCTION

Petitioner contends that the question presented

warrants review because, in the wake of this Court’s

decision in Florida v. Jardines, 569 U.S. 1 (2013),

federal and state courts have disagreed about whether

the posting of a “No Trespassing” sign is sufficient to

revoke the implicit license of a law enforcement officer

to approach the front door of a home and knock. But

only one federal court of appeals and one state court of

last resort have addressed that precise question—the

Tenth Circuit in United States v. Carloss, 818 F.3d 988

(10th Cir. 2016), cert. denied, 137 S. Ct. 231 (2016), and

the Tennessee Supreme Court in this case. And those

two decisions are in complete accord. Both the Tenth

Circuit and the Tennessee Supreme Court agree that

whether the implicit license to conduct a “knock and

talk” has been revoked requires an examination of the

totality of the circumstances, in which the presence of

a “No Trespassing” sign is a relevant, but not

dispositive, factor. See Carloss, 818 F.3d at 994-97;

Pet. App. 14-34. That approach is entirely consistent

with a long line of this Court’s Fourth Amendment

precedents.

In an attempt to manufacture disagreement among

the lower courts, petitioner relies on federal and state

court decisions that predate this Court’s decision in

Jardines, that evaluate “No Trespassing” signs only

under the distinct “reasonable expectation of privacy”

test from Katz v. United States, 389 U.S. 347, 360

(1967) (Harlan, J., concurring), or that were decided

under state constitutional provisions. But those

decisions do not implicate the question presented. And,

in any event, the analysis of those cases does not

conflict with that of the Tennessee Supreme Court.

There is simply no division of authority that warrants

this Court’s review.

Even if the question presented were otherwise

worthy of certiorari, this case is not an appropriate

vehicle by which to address it. Among other obstacles

to review, this case involves factual disputes regarding

the number and visibility of the “No Trespassing” signs

on petitioner’s property, an unresolved, antecedent

legal issue about whether the area where the signs

were located was within the curtilage of petitioner’s

residence, and an alternative ground for affirmance

that was not addressed by the Tennessee Supreme

Court. If the Court is interested in considering the

question presented, these obstacles make this case a

poor candidate in which to do so. Moreover, the Court

may wish to await a vehicle in which the question

presented is not limited to the property-based, implicitlicense analysis.

Nor is there any reason for this Court to review the

Tennessee Supreme Court’s fact-based conclusion that

the “No Trespassing” signs at issue in this case were

insufficient to revoke the implicit license. The “No

Trespassing” signs on petitioner’s rural property were

located in tall grass near the beginning of an

unobstructed driveway that was sixty to seventy yards

from his trailer. The signs included additional

warnings against hunting and fishing and were

accompanied by signs prohibiting spraying and

warning individuals to keep off the grass. Viewed in

context, petitioner’s “No Trespassing” signs conveyed to

a reasonable passerby only that unauthorized use of his

property was prohibited; they did not revoke the

implicit license to approach the front door for the

legitimate purpose of speaking to the home’s occupant.

For all of these reasons, the petition should be

denied.

STATEMENT OF THE CASE

A Tennessee jury convicted petitioner James Robert

Christensen, Jr., of promoting the manufacture of

methamphetamine, initiating the manufacture of

methamphetamine, resisting arrest, and two counts of

possessing a firearm during the commission of a

dangerous felony. Pet. App. 3, 12. Before trial,

petitioner moved to suppress evidence that law

enforcement officers had seized from his residence after

entering his property without a warrant to conduct a

knock and talk. Pet. App. 3. Petitioner argued that

the officers’ warrantless entry onto his property

violated the Fourth Amendment because he had placed

“No Trespassing” signs on his property. Pet. App. 3.

The Tennessee Supreme Court affirmed petitioner’s

convictions on appeal, holding that the officers did not

violate petitioner’s Fourth Amendment rights when

they “drove down [his] unobstructed driveway past ‘No

Trespassing’ signs and approached his residence” to

conduct a knock and talk. Pet. App. 37.

A. Factual Background

On August 3, 2013, narcotics investigators Michael

Green and Brent Chunn learned that an individual

who was suspected of manufacturing

methamphetamine, Mariah Davis, had purchased

pseudoephedrine at a local grocery store. Pet. App. 4.

The investigators had also received a tip from an

informant that Davis’s boyfriend, Cody Gatlin, was

manufacturing methamphetamine. Pet. App. 4. Based

on that information, the investigators drove to a

residence belonging to Gatlin’s father to speak with

Davis and Gatlin. Pet. App. 4. The investigators did

not obtain any warrants. Pet. App. 3.

When the investigators arrived at the residence,

they spoke first to Davis. Pet. App. 4-5. Gatlin was not

at the residence when investigators arrived; he was at

petitioner’s residence next door, about forty or fifty feet

away. Pet. App. 5. When Gatlin eventually walked

over from petitioner’s residence, the investigators

observed petitioner looking “out [his] screen door over

to where [they] were.” Pet. App. 5 (alterations in

original). Gatlin told the investigators that he had

taken the pseudoephedrine next door to petitioner, who

was in the process of using it to make

methamphetamine. Pet. App. 5.

After learning that methamphetamine was being

manufactured next door, the investigators backed out

of the driveway and drove thirty or forty feet to the

beginning of petitioner’s gravel driveway. Pet. App. 5.

Petitioner’s driveway was about sixty to seventy yards

long and was surrounded by very tall grass. Pet. App.

5. Investigator Green, who is over six feet tall,

estimated that the grass “c[a]me up probably to [his]

chin.” Pet. App. 5. The driveway was not blocked by a

gate or any other physical obstructions. Pet. App. 12.1

The petition states that petitioner’s “property consists of more

than three acres of land,” Pet. 28, but the record is silent regarding

the size of the property.

Several signs were mounted on a post in the tall

grass alongside the beginning of petitioner’s driveway.

The sign mounted near the top of the post read, in all

capital letters, “no trespassing[,] hunting[,] or fishing.”

Pet. App. 60. Directly below was a sign that read

“organic farm[,] do not spray.” R., Vol. 2, Ex. 2.2 And

below that were signs that read “water lines[,] septic

lines[,] small trees + plant seedlings[,] so keep off the

grass.” R., Vol. 2, Ex. 2. Investigator Green recalled

seeing the sign warning against spraying, but neither

he nor Investigator Chunn saw the “No Trespassing”

sign. Pet. App. 5. A video camera located on the dash

of the investigators’ car recorded the following image of

the post and signs:

Citations to “R.” are to the record on appeal.

R., Vol. 3, Ex. 12; see also R., Vol. 2, Ex. 1; Pet.

App. 59.3

No other “No Trespassing” signs were visible on the

video recorded by the investigators’ dash camera, and

the investigators did not recall seeing any other signs

as they entered petitioner’s property on August 3, 2013.

Pet. App. 55-56, 75 n.5. Petitioner testified at trial,

however, that he had “four or five” such signs on his

property. Pet. App. 10. And a local resident recalled

seeing several “No Trespassing” signs when she passed

by petitioner’s property on July 13, 2013, while

“witnessing” with her church. Pet. App. 10. A

photograph was admitted into evidence showing four

signs located on the edge of petitioner’s property, near

the roadway, but that photograph was taken at a later

date when snow, rather than tall grass, covered the

property. R., Vol. 2, Ex. 3; R., Vol. 4 at 59-60. The

photograph depicts two signs that read, “private

property[,] no trespassing,” one sign that reads “organic

farm[,] do not spray” in English and Spanish, and

another sign that is illegible. R., Vol. 2, Ex. 3.

Two trailers were located at the end of the

driveway, one occupied by petitioner and the other by

petitioner’s mother. R., Vol. 4 at 9. The investigators

parked their car about fifteen to twenty yards from

petitioner’s trailer and walked through the yard and up

some steps to the front door. R., Vol. 4 at 9-11. As the

investigators approached, petitioner opened the door

and came out to meet them. Pet. App. 5-6.

A clearer photograph of the signs, taken at a later date when the

tall grass was no longer present, was also admitted into evidence.

R., Vol. 2, Ex. 2; R., Vol. 3, Ex. 13; R., Vol. 4 at 25-29, 58-59.

When petitioner opened the door, the investigators

smelled an overwhelming odor associated with the

manufacture of methamphetamine. Pet. App. 6. From

his training in methamphetamine production,

Investigator Green knew that active

methamphetamine labs are volatile and can ignite

quickly. Pet. App. 6. Although the investigators lacked

a search warrant and had been unable to obtain

petitioner’s consent to enter his trailer, they forced

their way into the residence to dismantle the active

methamphetamine lab and prevent it from exploding.

Pet. App. 6-7. While Investigator Chunn entered the

trailer, Investigator Green struggled with petitioner

and eventually handcuffed him. Pet. App. 7. At some

point after Investigator Green began trying to detain

petitioner, petitioner told him to get off his property.

Pet. App. 7.4

Investigator Green eventually located the active

methamphetamine lab in petitioner’s freezer and

brought it outside, where the investigators had to

relieve pressure from the lab to prevent it from

exploding. Pet. App. 8. Investigator Green discovered

three firearms in the trailer—a loaded sawed-off

shotgun right inside the door and a loaded shotgun and

unloaded pistol on the couch. Pet. App. 8. The

investigators also discovered ten inactive

methamphetamine labs and various ingredients used

to manufacture methamphetamine. Pet. App. 9.

Petitioner testified that he told the investigators to leave his

property as they approached his front door, but neither

investigator recalled him telling them to leave at that point. Pet.

App. 7, 61.

B. Procedural Background

A Tennessee grand jury indicted petitioner on one

count of resisting arrest, Tenn. Code Ann. § 39-16-602;

one count of promoting the manufacture of

methamphetamine, id. § 39-17-433; one count of

initiating the manufacture of methamphetamine, id.

§ 39-17-435; and two counts of possessing a firearm

during the commission of a dangerous felony, id. § 3917-1324. Pet. App. 3; R., Vol. 1 at 2-3. Before trial,

petitioner moved to suppress the evidence against him

on the ground that it was obtained in violation of the

Fourth Amendment to the U.S. Constitution and article

I, section 7, of the Tennessee Constitution.5 Pet. App.

3. Petitioner argued that the investigators’ initial

warrantless entry onto his property to conduct a knock

and talk was unlawful in light of the “No Trespassing”

signs that were posted near his driveway. Pet. App. 3.

The trial court denied the motion to suppress. Pet.

App. 3. The trial court found that, before the

investigators entered petitioner’s property, they “knew

of the purchase and possession of materials used to

manufacture meth and [had been] told the materials

were delivered to [petitioner’s] home next door and that

an active meth lab was in progress.” Pet. App. 98.

This knowledge, the trial court reasoned, gave the

investigators “authority to investigate despite the no

trespassing sign.” Pet. App. 98. The trial court did not

make any express findings regarding the number of

The Tennessee Supreme Court has held that article I, section 7,

of the Tennessee Constitution is “identical in intent and purpose

with the Fourth Amendment.” Sneed v. State, 423 S.W.2d 857, 860

(1968).

“No Trespassing” signs on petitioner’s property or

whether those signs were visible when the

investigators approached petitioner’s residence. The

court simply concluded that, “[w]hile the no trespassing

sign evinced an expectation of privacy, it was not a bar

from the officers[’] investigating an ongoing dangerous

highly combustible activity.” Pet. App. 97. The trial

court further concluded that, once the investigators

“approached the trailer and smelled the strong odor of

an active meth cook,” exigent circumstances justified

the warrantless search of petitioner’s residence. Pet.

App. 98. Petitioner proceeded to trial and was

convicted as charged. Pet. App. 12. The trial court

sentenced him to an effective sentence of three years’

incarceration, followed by eight years of probation. Pet.

App. 12.

On direct appeal, a divided panel of the Tennessee

Court of Criminal Appeals affirmed the trial court’s

denial of petitioner’s motion to suppress. Pet. App. 12.

The majority “examine[d] the totality of the

circumstances . . . to determine whether [petitioner]

revoked the implied invitation of the front door” and

concluded that “a small sign reading ‘no trespassing[,]

hunting[,] or fishing,’ posted in a field next to

[petitioner’s] driveway that is difficult to see when

driving down the driveway” was insufficient “to revoke

the implied invitation.” Pet. App. 69, 75-77.6 The

majority reasoned that, especially when located on a

rural property, a “No Trespassing” sign is “generally

The court acknowledged testimony that there were multiple “No

Trespassing” signs on the property but concluded that the other

signs were “not visible to someone approaching the house using the

driveway, as the officers did in this case.” Pet. App. 75 n.5.

intended to prevent people from unauthorized use of

the property, not to prevent a casual visitor from

approaching the residence.” Pet. App. 76-77.

With respect to the investigators’ subsequent search

of petitioner’s residence, the majority held that the

active methamphetamine lab gave investigators

probable cause and exigent circumstances to enter

petitioner’s residence and remain there until the lab

was dismantled and that evidence other than the active

lab was properly seized under the plain view doctrine.

Pet. App. 77-80. The majority did not address the

State’s argument that the exigent circumstances

exception also justified the investigators’ initial entry

onto petitioner’s property.

Judge Williams concurred in part and dissented in

part. Pet. App. 84. He “agreed with the majority that

the totality of the circumstances in this case should be

examined” but disagreed with the majority’s

application of that standard. Pet. App. 85. Judge

Williams found that there were “nine signs on

[petitioner’s] property”—two at the edge of the property

near the roadway that read “private property” in large

letters and “no trespassing” in small letters and that

were “easily visible to passersby”; the signs on the post

beside the driveway that were visible on the

investigators’ dash camera; a sign near the roadway

that read “do not spray”; and another sign on a tree

that could not “be read on this record.” Pet. App. 88-89

& n.2. In Judge Williams’s view, a “simple [‘No

Trespassing’] sign, whether purchased or homemade,

is a clear expression of one’s intention to exclude

others” and was therefore sufficient to create a

legitimate expectation of privacy. Pet. App. 90. Judge

Williams would have rejected the State’s argument

that “exigent circumstances existed to allow the initial

entry onto the defendant’s property.” Pet. App. 85 n.1.

The Tennessee Supreme Court granted petitioner

permission to appeal on the suppression issue and

requested briefing on “(1) the effect, if any, of the

‘unlicensed physical intrusion’ definition of a search as

articulated in Florida v. Jardines, [569 U.S. 1] (2013);

and (2) if the officers’ entry into the curtilage of

[petitioner’s] home constituted a search, whether it was

supported by probable cause and the existence of

exigent circumstances.” Pet. App. 12. In a divided

opinion, the Tennessee Supreme Court affirmed the

denial of the motion to suppress. Pet. App. 1-2. As an

initial matter, the majority “assume[d], without

deciding, that [petitioner’s] driveway was part of the

curtilage,” because whether the driveway was within

the curtilage did not impact its resolution of the issue

before it—“whether Investigators Green and Chunn

engaged in an unconstitutional intrusion onto

[petitioner’s] property when they drove down [his]

unobstructed driveway near which were posted ‘No

Trespassing’ signs.” Pet. App. 14, 16.

Turning to that issue, the majority explained that

a “so-called ‘knock-and-talk’ is not a ‘search’ as that

term is understood within the context of the Fourth

Amendment, at least if the intrusion is conducted

within the scope of the implicit license recognized by

the [U.S.] Supreme Court in Jardines.” Pet. App. 18.

But the majority acknowledged that, because “‘the

knocker on the front door is treated as an invitation or

license to attempt an entry,’ . . . a homeowner may take

actions to revoke or otherwise limit that invitation or

license.” Pet. App. 20 (emphasis in original) (quoting

Jardines, 569 U.S. at 8). Whether the investigators’

initial entry on petitioner’s property was a search thus

turned on “whether posting ‘No Trespassing’ signs near

an unobstructed driveway is an express order sufficient

to revoke or limit” the invitation or license. Pet. App.

21.

The majority examined decisions from other

jurisdictions that had considered the impact of “No

Trespassing” signs on the validity of knock and talks

and found that “[m]ost jurisdictions that have

considered the issue appear to [have held] that ‘No

Trespassing’ signs, in and of themselves, will not

invalidate a knock-and-talk.” Pet. App. 23. The

majority determined that the appropriate inquiry was

whether “under the totality of the circumstances,” an

“objectively reasonable person [would] conclude that

entry onto [petitioner’s] driveway was categorically

barred.” Pet. App. 29. The majority emphasized that

its “approach recognize[d] the possibility that a sign,

under the right circumstances, could be sufficient to

revoke the implied license” and that it was therefore

“not adopting a per se rule.” Pet. App. 29 n.9.

Under the circumstances of petitioner’s case,

however, the majority concluded that the “No

Trespassing” signs near petitioner’s unobstructed

driveway were insufficient to revoke the implicit

license to conduct a knock and talk. Pet. App. 33. The

majority reasoned that the “No Trespassing” signs

“simply ma[d]e explicit what the law already

recognizes:

that persons entering onto another

person’s land must have a legitimate reason for doing

so or risk being held civilly or perhaps even criminally,

liable for trespass.” Pet. App. 31. But “[o]fficers

engaging in legitimate police business will conclude,

correctly, that they are not engaging in a ‘trespass’

when they approach a front door to conduct a knockand-talk.” Pet. App. 32.

The majority also considered whether the

investigators’ entry onto petitioner’s property

amounted to a search under “the ‘reasonable

expectation of privacy’ test set forth in Katz v. United

States, 389 U.S. 347 (1967).” Pet. App. 34. “Even if

[petitioner] had an actual, subjective expectation that

his signs would keep all persons from entering his

property under all circumstances,” the majority

explained, “a reasonable member of society would not

view that expectation as reasonable and justifiable.”

Pet. App. 36. Instead, “a reasonable member of society

would view [petitioner’s] ‘No Trespassing’ signs as

simply forbidding any unauthorized or illegitimate

entry onto his property.” Pet. App. 36. Because any

subjective expectation of privacy petitioner had was

unreasonable, he was not entitled to relief on that basis

either. Pet. App. 36.

The majority found it unnecessary to determine

whether the investigators’ initial entry onto petitioner’s

property was supported by probable cause and the

existence of exigent circumstances. Pet. App. 37. And

because petitioner’s counsel had conceded at oral

argument that the search was “supported by exigent

circumstances and probable cause,” the majority also

declined to address the constitutionality of the

investigators’ subsequent search of petitioner’s

residence. Pet. App. 37 n.12.

Justice Lee dissented. Pet. App. 38. Justice Lee

acknowledged that whether a particular “No

Trespassing” sign is sufficient to revoke the implied

license “depend[s] on the circumstances.” Pet. App. 46.

In her assessment, however, petitioner had

“sufficiently revoked the public’s implied license to

enter his property by posting multiple ‘No Trespassing’

and ‘Private Property’ signs near the entrance to his

driveway.” Pet. App. 41. She found that the signs

“were clearly visible to anyone approaching

[petitioner’s] driveway from the main road” and that,

“[e]ven in the absence of a fence or other physical

barrier, the signs effectively communicated [his] intent

to protect his privacy and exclude others from

approaching his home.” Pet. App. 45-46. Justice Lee

also would have found a Fourth Amendment violation

under the reasonable expectation of privacy test. Pet.

App. 49-50.

REASONS FOR DENYING THE PETITION

There Is No Conflict Among the Federal

Courts of Appeals or State Courts of Last

Resort on the Question Presented.

Federal courts of appeals and state courts of last

resort are not divided on the Fourth Amendment

question decided by the Tennessee Supreme Court.

With respect to law enforcement officers’ “implicit

license” to “approach a home and knock,” Florida v.

Jardines, 569 U.S. 1, 8 (2013), courts agree that (1) an

individual has the ability to revoke the officers’ implicit

license and (2) whether revocation has occurred

depends on the specific facts of the case.

Petitioner asserts that “federal circuits and state

courts alike are split on whether a ‘No Trespassing’

sign is sufficient to revoke the government’s implied

license to enter property.” Pet. 10. Not so. Only one

federal appellate court has addressed the issue, see

United States v. Carloss, 818 F.3d 988 (10th Cir. 2016),

cert. denied, 137 S. Ct. 231 (2016), and the Tennessee

Supreme Court expressly relied on and agreed with

that court’s approach, Pet. App. 26-30. The state court

decisions on which petitioner relies do not support his

assertion either. They do not address the question

presented at all, let alone in a manner contrary to the

Tenth Circuit or the Tennessee Supreme Court. To the

extent that state and federal courts have addressed

related issues under the Fourth Amendment and

counterpart state constitutional provisions, moreover,

they have applied the same fact-dependent, totality-ofthe-circumstances approach that the Tennessee

Supreme Court adopted, in which the presence or

absence of a “No Trespassing” sign is relevant but not

dispositive. Certiorari is thus not warranted.

A. The Tennessee Supreme Court’s

Decision Does Not Conflict with Any

Federal Court Decision.

Petitioner relies on three federal court decisions in

the hope of establishing that “[f]ederal circuits are

fraught with inconsistencies” about this issue. Pet 20.

Only two address the question presented, however, and

one of those is an unpublished district court decision.

And the only potential “inconsistenc[y]” in these

opinions arises out of petitioner’s forced, out-of-context

construction of a single dictum in the district court

decision.

Petitioner first discusses the Tenth Circuit’s opinion

in Carloss, quoting at length from the dissenting

opinion. Pet. 21-23; see also id. 10-11 & n.1. As for the

majority opinion, though, petitioner admits that the

“analysis of th[at] case is substantially similar to the

underlying case that serves as the basis for th[e]

Petition.” Pet. 21. On that score, at least, petitioner is

correct. The Tenth Circuit concluded in Carloss that

“the presence of a ‘No Trespassing’ sign is not alone

sufficient to convey to an objective officer, or member of

the public, that he cannot go to the front door and

knock.” 818 F.3d at 995. The Tennessee Supreme

Court reached the identical conclusion. See Pet. App.

29-30 & n.9.

Petitioner next cites an unpublished district court

decision, Bush v. County of San Diego, No. 3:15-cv00686, 2016 WL 6070174 (S.D. Cal. Oct. 17, 2016), as

evidence of the “fraught” division among the “[f]ederal

circuits.” Pet. 20, 23. In Bush, a civil action, a district

court concluded that officers’ attempt to conduct a

knock and talk violated the Fourth Amendment

because the homeowner had revoked the implicit

license to enter the curtilage. Id. at *4. In support of

this finding, the court noted that the property in

question was “encircled by a barbed chain link fence”

with a “closed front gate” that included “two ominous

signs reading ‘NO TRESPASSING’ and [‘]BEWARE OF

DOG.’” Id. Accordingly, the court reasoned that “[n]o

reasonable person could have stood at the front gate, in

plain view of such signage, and concluded they had an

implied invitation to enter.”

Id.

Given these

circumstances, “[t]he ‘NO TRESPASSING sign alone

explicitly communicate[d] that no such invitation

exist[ed].” Id.

Petitioner characterizes the Bush decision as

holding that “the presence of No Trespassing signs, in

and of themselves, are [sic] sufficient to revoke the

public’s license to enter property.” Pet. 23. Read in

context, however, the district court in Bush is

discussing the particular “No Trespassing” sign at

issue—posted on the closed gate of a barbed-wire fence

that encircled the property. The district court’s factspecific conclusion that a reasonable person would

understand the fence and signs to mean the implicit

license to enter the property had been revoked applies

the same test as and is entirely consistent with the

Tennessee Supreme Court’s decision. Pet. App. 29-33.

In discussing the purported disagreement among

the federal circuits, petitioner also discusses at length

the Sixth Circuit’s unpublished opinion in United

States v. Hopper, 58 Fed. Appx. 619 (6th Cir. 2003).

Pet. 24-25. But Hopper, decided before this Court’s

decision in Jardines, does not address the question

presented, which is limited to whether a “No

Trespassing” sign is sufficient to revoke an officer’s

implicit license to conduct a knock and talk. Pet. i.

Hopper addressed the distinct question whether the

defendant “ha[d] a constitutionally protected,

reasonable expectation of privacy,” 58 Fed. Appx. at

623, the second issue decided by the Tennessee

Supreme Court, but one that was not included in the

question presented, Pet. i; Pet. App. 35.

Moreover, the Sixth Circuit’s analysis of the

individual’s reasonable expectation of privacy in

Hopper parallels the Tennessee Supreme Court’s

analysis of both that issue and whether the implicit

license to approach petitioner’s residence had been

revoked. The Sixth Circuit concluded in Hopper that a

“No Trespassing” sign alone was not sufficient to make

entry into the curtilage presumptively unreasonable

under the Katz test. 58 Fed. Appx. at 624.7 The

Tennessee Supreme Court agrees. See Pet. App. 35-36.

And the Sixth Circuit, like the Tennessee Supreme

Court, suggested that a “No Trespassing” sign plus

“additional measures to protect the area from outside

interference” may lead to a different outcome. See id.

Although not cited by petitioner, the Eighth Circuit’s decision in

United States v. Bearden, 780 F.3d 887 (8th Cir. 2015), is also

consistent with the Tennessee Supreme Court’s decision. In

Bearden, the Eighth Circuit concluded that officers did not need a

warrant or exigent circumstances to conduct a knock and talk after

entering into the curtilage of a home through an open gate marked

“No Trespassing.” Id. at 893-94.

at 624 (distinguishing United States v. Depew, 8 F.3d

1424 (9th Cir. 1993)); compare Pet. App. 29-36 & n.9.

These three federal cases relied on by the

petitioner8—two court of appeals decisions that are in

total harmony with the decision below and one

unpublished district court decision that applies the

same test and looks to the same facts as the Tennessee

Supreme Court—do not establish “fraught”

disagreement or inconsistency, certainly not among the

“[f]ederal circuits.” Pet. 20. At most, an ambiguous

dictum in an unpublished district court decision could

be construed to be in tension with the Tennessee

Supreme Court’s ruling only by disregarding context

and the facts of that case. Regardless, any conflict with

an unpublished district court decision would not

warrant this Court’s review. See Sup. Ct. Rule 10(b).

In a footnote, petitioner also cites the Ninth Circuit’s decision in

Davis v. United States, 327 F.2d 301 (9th Cir. 1964), contending

that it announced a rule of law “directly on point with the issues

of the instant Petition.” Pet. 23 n.2. But Davis, which was decided

before this Court’s decision in Katz, merely establishes the

principle that a person in possession of property may revoke

officers’ implicit license to enter it by “express orders.” 327 F.3d at

303. The Tennessee Supreme Court agreed with that principle and

cited Davis positively. See Pet. App. 17, 20-21, 29 n.2. As

petitioner admits, Davis has nothing to say about the presence of

a “No Trespassing” sign, which is the specific issue presented by

the petition. Pet. 23 n.9; Pet. i.

B. The Tennessee Supreme Court’s

Decision Does Not Conflict with Any

Decision of a State Court of Last Resort.

Petitioner also asserts that “there is marked

dissimilarity among courts of last resort across the

country” on the question presented. Pet. 15. The

dissimilarities on which petitioner relies, however, are

dissimilarities in facts and in state constitutional

interpretation, not “dissimilarity” about the protections

of the U.S. Constitution. Other state courts of last

resort have not had an opportunity to address the

question presented. And their analyses of related

issues under the Fourth Amendment or state

constitutional provisions apply the same constitutional

principles underlying the Tennessee Supreme Court’s

decision.

The principal case on which petitioner relies to

establish conflict is the Louisiana Supreme Court’s

decision in State v. Roubique, 421 So. 2d 859 (La. 1982).

Petitioner argues that “[t]his case stands for the

proposition that a No Trespassing sign, in and of itself,

is sufficient to revoke the public’s implied license to

enter property.” Pet. 16. But there are at least four

problems with that characterization.

First, Roubique does not address the question

presented. Contrary to petitioner’s suggestion, the

Roubique court never addressed “the public’s implied

license”; it considered only “whether [the defendant]

had a reasonable expectation of privacy in the driveway

to his trailer.” 421 So. 2d at 862.

Second, it is not clear that Roubique is still good

law. Roubique predates this Court’s decision in Oliver

v. United States, 466 U.S. 170 (1984), which held that

“No Trespassing” signs posted at regular intervals and

a locked gate were not sufficient to establish a

constitutionally protected privacy interest in a highly

secluded area on the petitioner’s property but outside

the curtilage of the home, id. at 173-74, 180-84.

Contrary to the rule that later would be established in

Oliver, the Roubique court analyzed the privacy

implications of the “No Trespassing” signs and other

circumstances of the property without distinguishing

between curtilage and open fields or determining if the

officer entered the curtilage. See 421 So. 2d at 861-62.

The rule established in Oliver thus casts serious doubt

on the continuing validity of the analysis in Roubique.

Third, contrary to this Court’s precedent, the

Roubique court applied the Katz test by looking at only

subjective intent, finding it sufficient to establish a

Fourth Amendment violation that “[t]he sign at the

road’s entrance [wa]s ample evidence of [the

defendant’s] intent to preserve his privacy.” 421 So. 2d

at 862; contra Kyllo v. United States, 533 U.S. 27, 33

(2001) (“[A] Fourth Amendment search does not occur

. . . unless the individual manifested a subjective

expectation of privacy . . . and society is willing to

recognize that expectation as reasonable.” (emphasis

added) (internal quotation marks and alterations

omitted)). To the extent an individual’s reasonable

expectation of privacy is relevant to the question of

implicit license, only the objective inquiry could be

relevant: whether society regards a “No Trespassing”

sign as sufficient to revoke the implicit license to enter

the protected area and knock.

The subjective

component—the only component analyzed in

Roubique—is irrelevant to the question of implicit

license. Roubique thus has nothing to say about the

question presented.

Fourth, Roubique did not, as petitioner suggests,

hold that a “No Trespassing” sign is sufficient in and of

itself to establish an expectation of privacy. Instead,

the court relied on both the presence of the sign and

the fact that the individual’s “trailer was isolated” and

“barely visible from the road,” to determine that the

individual “had a reasonable expectation of privacy in

the premises.” 421 So. 2d at 862.

Roubique does not appear to have been cited by a

court in Louisiana for the stark proposition petitioner

ascribes to it or applied in that manner. And given the

numerous developments in this Court’s Fourth

Amendment jurisprudence since 1982—including its

decisions in Oliver and Jardines, the latter of which

forms a significant part of the basis for the petition, see

Pet. 8-9—Louisiana should be given the chance to

examine Roubique in light of current precedent before

any perceived conflict that decision creates would

warrant this Court’s attention.

The other state cases on which petitioner relies

likewise do not establish any “marked dissimilarity”

among state courts of last resort. Most importantly,

several of the cases interpret state constitutional

provisions, not the Fourth Amendment, and some do so

in a manner expressly contradicting this Court’s

Fourth Amendment jurisprudence. For example, the

Oregon Supreme Court’s decision in State v. Dixson,

766 P.2d 1015 (Or. 1988) (en banc), which petitioner

discusses at length, Pet. 18-19, interprets article I,

section 9, of the Oregon Constitution, not the Fourth

Amendment, 766 P.2d at 1024. And, like several other

state court decisions cited by the petitioner and the

majority below, Dixson interprets its state

constitutional provision in a manner at odds with this

Court’s decision in Oliver. See id. (rejecting Oliver’s

“[r]eliance on the common-law concept of curtilage to

justify excluding land outside the curtilage from

constitutional protection”); see also State v. Hubbel, 951

P.2d 971, 976-77 (Mont. 1997) (noting that, in

interpreting the Montana Constitution, the court had

“declined to follow” Oliver’s distinction between

curtilage and open fields); People v. Scott, 593 N.E.2d

1328, 1337-38 (N.Y. 1992) (detailing reasons that

“require [the Court] to reject Oliver and to turn instead

to our State Constitution for the protection of our

citizens’ rights”).9 Such “conflict,” to the extent any

exists, results from our federal system of government

and cannot be resolved by this Court. See Minnesota v.

Nat’l Tea Co., 309 U.S. 551, 557 (1940).

Finally, petitioner relies on state cases that do not

address the question presented but apply the Katz test

in distinct factual circumstances. And they apply the

Katz test in a manner entirely consistent with the

Tennessee Supreme Court’s analysis of the revocation

of the public’s implicit license. Most prominently, the

petition discusses the North Dakota Supreme Court’s

decision in State v. Kochel, 744 N.W.2d 771

Petitioner also cites in passing an unpublished decision by the

Washington Court of Appeals in State v. Kuchera, Nos. 27375-6-II,

27376-4-II, 2002 WL 31439839 (Wash. Ct. App. Nov. 1, 2002). Pet.

15. That decision also involves a state constitutional provision,

and its analysis mirrors that of the Tennessee Supreme Court. Id.

at *5 (“The presence of no-trespassing signs is not dispositive of

the establishment of privacy, but is a factor to be considered[.]”).

(N.D. 2008). In Kochel, the court determined that the

defendant had a reasonable expectation of privacy in

an addition to his mobile home that was “fully enclosed

by wooden walls complete with a door and a window,”

in part because the individual had posted a “No

Trespassing” sign on the steps leading to the door. 744

N.W.2d at 774. Considering the sign, as well as the

“size of the room, presence of a window and carpeting,

and presence of personal property,” the court concluded

that the addition was an “integral part of [the] home to

which an objective expectation of privacy should

extend.”

Id. at 775.

Kochel thus based its

determination on the specific facts of the case, and

nothing in its analysis conflicts with the Tennessee

Supreme Court’s similarly fact-based decision on the

implicit license issue. In fact, in a later case, the

Supreme Court of North Dakota clarified that “No

Trespassing” signs posted around a property were not

sufficient to establish “a reasonable expectation of

privacy in the entrance” of the property. See State v.

Mittleider, 809 N.W.2d 303, 308 (N.D. 2011).

The only other cases cited by petitioner are factdependent decisions by intermediate state appellate

courts. Even if these cases were in conflict with the

Tennessee Supreme Court’s decision, certiorari would

not be warranted because they do not represent the

final word by the state court of last resort. See Sup. Ct.

R. 10(b).

In any event, they do not conflict. Two of the cases

do not involve “No Trespassing” signs at all but

mention them only in passing dicta. See Cooksey v.

State, 350 S.W.3d 177, 184 (Tex. Ct. App. 2011); Powell

v. State, 120 So. 3d 577, 580, 584 (Fla. Dist. Ct.

App. 2013). In Cooksey, the Texas Court of Appeals

identified “posting ‘no trespassing’ signs” and “erecting

a locked gate” as examples of ways a homeowner could

“manifest an intention to restrict access” and thereby

revoke the implied authorization to enter the property.

350 S.W.3d at 184. But that court did not hold that a

“No Trespassing” sign would always be sufficient to do

so. The Powell dictum states that “homeowners who

post ‘No Trespassing’ or ‘No Soliciting’ signs effectively

negate a license to enter the posted property.” 120

So. 3d at 584 (citing Florida’s trespass statute). But

even courts within Florida recognize that this

“sentence in Powell . . . does not control the outcome” in

a case that actually involves a sign because “Powell

wasn’t a sign case.” State v. Crowley, --- S.3d ----, 2017

WL 4318598, at *3 (Fla. Dist. Ct. App. Sept. 29, 2017).

This Court should not give the Powell dictum more

weight than Florida courts give it. Moreover, neither

dictum forecloses those courts—and certainly not the

court of last resort in those states—from adopting the

test applied by the Tennessee Supreme Court, in which

“No Trespassing” signs may be relevant as part of the

totality of the circumstances but are not dispositive.10

Petitioner also cites Jones v. State, in which the Maryland Court

of Special Appeals held, consistent with the Tennessee Supreme

Court, that a “No Trespassing” sign does not “prevent visitors with

a legitimate purpose from walking to the front door, including

police officers in furtherance of an investigation.” 943 A.2d 1, 12

(Md. Ct. Spec. App. 2008).

The cases cited by petitioner thus do not support his

claim that “federal circuits and state courts alike are

split on whether a ‘No Trespassing’ sign is sufficient to

revoke the government’s implied license to enter

property.” Pet. 10. The Tennessee Supreme Court held

that “No Trespassing” signs, in and of themselves, “are

rarely going to be sufficient to revoke the implied

license allowing persons to approach a front door and

knock.” Pet. App. 30. Petitioner has cited no case, and

certainly no decision by a federal court of appeals or

state court of last resort, that holds otherwise. In fact,

the vast majority of the cases cited in the petition do

not address the question presented at all but address

either a state constitutional provision or the distinct

question whether, in a specific factual context that

includes a “No Trespassing” sign, an individual has

established a reasonable expectation of privacy. The

reasoning of the cases on which petitioner relies,

moreover, demonstrates not “dissimilarity” but rather

almost complete agreement. See Jones, 943 A.2d at 12

(noting that “courts have been very consistent in

concluding that no trespassing signs, in and of

themselves” do not establish a reasonable expectation

of privacy but “may be considered as part of the totality

of the circumstances”).

Certiorari is thus not

warranted.

II.

This Case Is Not an Appropriate Vehicle To

Resolve the Question Presented.

Petitioner contends that this case “presents an ideal

opportunity” for this Court to resolve the question

presented, Pet. 26, but he is mistaken. Even if the

question presented otherwise warranted this Court’s

review, the petition should still be denied because this

case is not an appropriate vehicle to resolve that

question.

First, there are disputed factual questions that

would impede this Court’s resolution of the issue

presented. The trial court denied petitioner’s motion to

suppress without making any factual findings

regarding the number of “No Trespassing” signs on

petitioner’s property or their visibility when the

investigators entered the property on August 3, 2013.

Pet. App. 92-98. In the Court of Criminal Appeals, the

majority found that the signs other than the one

alongside the driveway were not visible to the

investigators, Pet. App. 75 n.5, while the dissent found

that the two “Private Property” signs near the roadway

were “easily visible to passersby.” Pet. App. 88. In the

Tennessee Supreme Court, the majority recounted the

conflicting evidence presented regarding the visibility

of petitioner’s signs, see Pet. App. 5, 10, but did not

make any express findings about the precise number or

visibility of the signs. Instead, in framing the issue as

whether posting “No Trespassing” signs was sufficient

to revoke the implied license, the majority seemed to

assume that petitioner had more than one visible sign

on his property. Pet App. 14, 21, 33. The dissent,

meanwhile, stated that the two “Private Property”

signs near the roadway were “clearly visible to anyone

approaching [petitioner’s] driveway from the main

road.” Pet. App. 45. If this Court is interested in

addressing the question presented, it would be prudent

to await a case in which clear factual findings have

already been made by the lower courts.

Second, this case presents an unresolved antecedent

legal question—namely, whether the area in which

petitioner’s “No Trespassing” signs were located was

part of the curtilage of his residence. The Tennessee

Supreme Court assumed, without deciding, that

petitioner’s “driveway was part of the curtilage,” but

acknowledged that “[t]here is no bright-line rule

delineating the inclusion or exclusion of a given

driveway within a house’s curtilage for Fourth

Amendment purposes.” Pet. App. 15-16. Other courts

that have considered the effect of “No Trespassing”

signs on officers’ ability to conduct a knock and talk

have examined whether the signs were on the

curtilage. For example, the Tenth Circuit in Carloss

found that “No Trespassing” signs located in

“unenclosed front and side yards and along the

driveway of the house” were in “open fields” and

therefore “would not have conveyed to an objective

officer, or member of the public, that he could not walk

up to the porch and knock on the front door and

attempt to contact the occupants.” 818 F.3d at 995.

To evaluate properly whether the signs in this case

precluded the investigators from approaching

petitioner’s property without a warrant, this Court may

first need to determine whether the area near the

roadway and at the top of petitioner’s driveway where

the signs were placed was part of petitioner’s curtilage.

As the Tennessee Supreme Court recognized, that

question is not governed by a “bright-line rule,” Pet.

App. 15, but instead requires a fact-intensive inquiry.

See United States v. Dunn, 480 U.S. 294, 301 (1987);

United States v. Brown, 510 F.3d 57, 65 (1st Cir. 2007).

But “it is not th[is] Court’s usual practice to adjudicate

either legal or predicate factual questions in the first

instance.” CRST Van Expedited, Inc. v. EEOC, 136 S.

Ct. 1642, 1653 (2016); see also Dep’t of Transp. v. Ass’n

of Am. R.R., 135 S. Ct. 1225, 1234 (2015) (“[O]urs is a

court of final review and not first view.” (internal

quotation marks omitted)). There is no reason to

depart from that usual practice in this case.

Third, the issue presented is not dispositive of

petitioner’s suppression motion.

Because the

Tennessee Supreme Court concluded that the

investigators’ entry onto petitioner’s property was a

permissible knock and talk, it did not address the

State’s alternative argument that, even if the entry

was a search, it was justified by probable cause and

exigent circumstances. Pet. App. 37. If this Court

were to grant certiorari and reverse, that issue would

remain for the Tennessee Supreme Court on remand

and may provide an alternative ground to affirm

petitioner’s convictions.

Finally, although the Tennessee Supreme Court

expressly considered and rejected petitioner’s argument

that his “No Trespassing” signs also gave rise to a

reasonable expectation of privacy that precluded

officers from conducting a knock and talk, see Pet. App.

34-37, petitioner has not sought certiorari on that

distinct question. Petitioner’s “framing of the question

presented has significant consequences, however,

because under this Court’s Rule 14.1(a), ‘[o]nly the

questions set forth in the petition, or fairly included

therein, will be considered by the Court.’” Yee v. City

of Escondido, Cal., 503 U.S. 519, 535 (1992) (quoting

Sup. Ct. R. 14.1(a)). Thus, if the Court is interested in

addressing the effect of a “No Trespassing” sign on the

ability of officers to conduct a knock and talk, it should

await a vehicle in which the question presented is not

limited to the property-based understanding of the

Fourth Amendment. This Court has explained that the

property-based approach is an alternative to, not a

substitute for, the Katz reasonable-expectations test.

Jardines, 569 U.S. at 11.

III.

The Tennessee Supreme Court’s Decision Is

Correct.

The Tennessee Supreme Court concluded that

“under the totality of the circumstances, the

Defendant’s ‘No Trespassing’ signs posted near his

unobstructed driveway were not sufficient to revoke the

implied license referred to in Jardines.” Pet. App. 33.

Both the Tennessee Supreme Court’s adoption of a

standard that examines the totality of the

circumstances and its application of that standard to

the specific facts of this case were correct and do not

warrant this Court’s review. This Court has long

recognized that an analysis that looks to the totality of

the circumstances is appropriate in the context of the

Fourth Amendment. See United States v. Knights, 534

U.S. 112, 118 (2001) (noting the Court’s “general

Fourth Amendment approach of ‘examining the totality

of the circumstances’” (quoting Ohio v. Robinette, 519

U.S. 33, 39 (1996))). And that approach is particularly

appropriate here in light of the inherent ambiguity of

“No Trespassing” signs, as the facts of this case well

illustrate.

The standard applied by the Tennessee Supreme

Court is entirely consistent with this Court’s Fourth

Amendment precedents, which frequently consider the

totality of the circumstances in determining whether a

Fourth Amendment violation has occurred. See, e.g.,

Cnty. of L.A. v. Mendez, 137 S. Ct. 1539, 1546 (2017)

(whether force used in making a seizure is excessive

depends on totality of circumstances); Birchfield v.

North Dakota, 136 S. Ct. 2160, 2186 (2016) (whether

consent to search is voluntary depends on totality of

circumstances); Missouri v. McNeely, 569 U.S. 141, 151

(2013) (whether exigency exists depends on totality of

circumstances); Samson v. California, 547 U.S. 843,

852 (2006) (whether parolee has reasonable expectation

of privacy depends on “totality of the circumstances

pertaining to petitioner’s status”); Illinois v. Gates¸ 462

U.S. 230-32 & n.7 (1983) (whether probable cause

existed depends on totality of circumstances). The per

se rule urged by petitioner—that “No Trespassing”

signs always, no matter their context, revoke the

public’s implicit license to knock on the front door of a

home, Pet. 27, 29, would directly contravene that

longstanding approach.

Indeed, context is critical in determining the

meaning conveyed by a “No Trespassing” sign because

a “No Trespassing” sign, standing alone, does not

unambiguously convey to passersby that they may not

enter the property for the entirely legitimate purpose

of knocking on the front door and speaking to the

home’s occupant. To the contrary, a “No Trespassing”

sign simply conveys to an outside individual that

“trespass” is not allowed. But “[o]fficers engaging in

legitimate police business will conclude, correctly, that

they are not engaging in a ‘trespass’ when they

approach a front door to conduct a knock-and-talk.”

Pet. App. 32. As Chief Judge Tymkovich explained in

his concurring opinion in Carloss, “I doubt a

reasonable, lawful visitor would believe that ‘No

Trespassing’ eliminated th[e] presumption [that a

visitor to a residential neighborhood can enter the front

porch curtilage to knock] in every instance.” 818 F.3d

at 999. Even Justice Lee’s dissenting opinion rightly

recognized that whether a “No Trespassing” sign would

be sufficient to revoke the implicit license would

“depend[] on the circumstances,” Pet. App. 46,

including the sign’s “word[ing] and place[ment],” Pet.

App. 43 n.7.

The facts of this case make that principle

particularly clear. Construed in the light most

favorable to the State, the record shows that petitioner

had only one “No Trespassing” sign that may have been

visible to the investigators. See State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996) (the prevailing party on a

motion to suppress is “entitled to the strongest

legitimate view of the evidence adduced at the

suppression hearing as well as all reasonable and

legitimate inferences that may be drawn from that

evidence”).11 That sign was located in tall grass near

the beginning of an unobstructed driveway that was

sixty to seventy yards long. It read, “no trespassing[,]

hunting[,] or fishing” and was surrounded by signs

telling passersby not to spray because organic farming

was taking place on the property and to keep off the

grass. Pet. App. 5; R., Vol. 2, Ex. 2.

In these circumstances, the “No Trespassing” sign

did not unambiguously communicate to members of the

public that they were not permitted to approach the

front door for the legitimate purpose of contacting

Petitioner claims that the “record reflects that [he] had at least

two ‘No Trespassing’ signs and one ‘Private Property’ sign located

in his driveway and elsewhere on his property,” Pet. 3-4, but that

characterization of the record fails to construe the evidence in the

light most favorable to the State.

petitioner. Rather, the most reasonable understanding

of petitioner’s admonition against trespassing,

accompanied as it was by warnings against hunting

and fishing and additional warnings related to farming

activities being conducted on the property, is that it

was “intended to prevent unauthorized use of

petitioner’s land, not to keep out the casual visitor who

wishes only to approach the residence to contact its

occupant.” Pet. App. 75-76; see also Carloss, 818 F.3d

at 996 (reasoning that a sign forbidding trespassing,

hunting, fishing, and trapping “references activities

that ordinarily do not take place within a home or its

curtilage” and thus was not “directed to people who

desire to approach and speak directly with the

occupants of the home in the ordinary course of

societally accepted discourse”).

The location of the sign in tall grass alongside the

beginning of petitioner’s unobstructed driveway, at

least sixty to seventy yards from his residence,

reinforces this conclusion. A sign located on a fence or

other barrier blocking the driveway, or near the path

that would be used to approach the front door of the

residence, would more clearly communicate to

members of the public that they are not welcome, even

for the legitimate purpose of contacting petitioner.

Even assuming that petitioner’s other “No

Trespassing” signs were visible to the investigators at

the time they visited petitioner’s residence, they do not

change the analysis or compel a different conclusion.

At most, petitioner had two other “No Trespassing”

signs at the edge of his property near the roadway that

read “private property[,] no trespassing.” R., Vol. 2,

Ex. 3. Those signs were near a third sign that read

“organic farm[,]no spraying.” R., Vol. 2, Ex. 3. Like

petitioner’s sign beside the driveway, these signs are

most reasonably understood to prevent unauthorized

use of petitioner’s property, not entry onto the property

for a legitimate purpose. And because these signs are

located even farther from the driveway and residence

than the other sign, they are even less likely to

communicate to passersby that they are not welcome to

approach the front door.

Consistent with the approach of other jurisdictions

and this Court’s precedent, the Tennessee Supreme

Court considered the totality of the circumstances and

determined that petitioner’s “No Trespassing” signs did

not revoke the investigators’ implicit license to enter

his property to conduct a knock and talk. Contrary to

petitioner’s assertions, the inquiry does not end at the

words “No Trespassing.” The Tennessee Supreme

Court correctly recognized that. And this Court’s

review of its fact-based decision is not warranted.

CONCLUSION

The petition for a writ of certiorari should be