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SCOW will review police “knock and talk” in fenced backyard

State v. Christopher D. Wilson2020AP1014-CR, petition for review of an unpublished decision granted 11/17/21; case activity (including briefs)

Issue presented (from the petition):

Did the police have implicit license to enter the backyard of Mr. Wilson’s home through a gated privacy fence?

Someone called 911 to report erratic driving; the caller relayed that the vehicle had parked in an alley, and the driver had opened a gate and entered the fenced-in backyard. The police saw the gate in the privacy fence remained ajar, and they entered the backyard as well. Not seeing anyone, they knocked on a side door leading into a detached garage. Wilson answered and spoke with the officers; they eventually developed probable cause and arrested him.

The court of appeals thought the officer’s entry into the backyard was a legitimate “knock and talk” as described in Florida v. Jardines, 569 U.S. 1 (2013). But as the petition notes, the Jardines Court spoke of an “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.” The court of appeals cited a couple of cases from other jurisdictions blessing officers’ approach to entryways or areas other than the front door, but as Wilson notes, in each of those cases there were specific facts suggesting these locations were intended to be open to the public–and thus to police for a knock-and-talk. He argues there were no facts here indicating “that it was common practice for members of the public to enter the homes of others through backyards enclosed by tall, solid privacy fences. Regardless of the fact that the gate to the fence happened to be open at the moment police arrived, the existence of a privacy fence surrounding the perimeter of the backyard strongly
implied that it was not open to the public.”

Besides being distinguishable on their facts, Wilson observes that these cases, being foreign, are not binding on Wisconsin courts. Wisconsin thus has no law on the backyard knock-and-talk; it likely soon will.

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