By Anna Driggers
In Missouri v. Kruse, the State of Missouri seeks certiorari from the Supreme Court and asks the Court to invalidate a Missouri Court of Appeals ruling creating a rule that it is unreasonable for police officers to enter the curtilage of an individual’s home to cover the back door while other officers conduct a knock and talk at the front door, seeking the non-resident subject of an arrest warrant. The Missouri Court of Appeals expanded upon the Supreme Court’s rule in Steagald v. United States, whichbars law enforcement officers from entering the home of a third party when the subject of an arrest warrant is in the home, absent consent of the resident or exigent circumstances. The Missouri Court of Appeals held that law enforcement officers also may not enter of the curtilage of the home absent consent or exigent circumstances. While the home is a source of great privacy interests, a case-by-case inquiry into the reasonableness of the officers’ intrusion is likely more appropriate than a per se rule, like the one adopted by the Missouri Court of Appeals that entry into the curtilage of a home violates the Fourth Amendment rights of the resident. A case-by-case inquiry into the reasonableness of the officers’ intrusion into the curtilage should include consideration of the nature of the law enforcement activity and the characteristics of the curtilage, particularly its openness to the public.
In this case, the officers had probable cause to believe that the subject of the arrest warrant was at the home and might have been engaged in illegal activity there. While capturing the subject of an arrest warrant is a compelling government interest, absent other circumstances that would make an immediate arrest critical, law enforcement officers should wait for another opportunity to apprehend the individual rather than intruding on the privacy of a third-party resident. In this case, the police officers’ hunt for the arrest warrant subject brought them to the third-party’s home in the middle of the night. When the officers arrived, they could see the subject’s van parked in the driveway with a flat tire. In the event the resident refused consent, the subject could not have escaped in his vehicle, and in the event the officers saw the subject running away, there would be exigent circumstances and the officers could have chased him.
While a resident has been held to have less of an expectation of privacy in the curtilage of his home in some circumstances, the circumstances in this case do not support a finding that the officers’ intrusion was reasonable. In past cases, the Supreme Court has upheld observation of the curtilage of a home that did not involve warrantless entry, like observation from an aircraft above the property. While the backyard in this case was not enclosed with a fence, the backyard and shed were not visible to the public from the street. In addition, the yard was surrounded by woods, not by an open area allowing the officers to position themselves to allow monitoring of the curtilage without intruding on the property. The state references a well-worn path to the backyard used by the officers, but the existence of a path used by residents and invited guests does not constitute a pathway open to the public and inviting intrusion on the property.
There may be circumstances where the government interest in entering the curtilage is so critical that the officers’ intrusion would be reasonable. There may also be circumstances where the curtilage is so visible and open to the public that the residents would not have a reasonable expectation of privacy in the curtilage and the officers’ entry would be less intrusive. A case-by-case inquiry considering the reasonableness of the intrusion would allow law enforcement officers’ more flexibility in situations with compelling circumstances while preserving the reasonable expectation of privacy of individuals in their home and the home’s private, surrounding curtilage.