Warrantless Searches

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“The service of civil process does not authorize a warrantless search of private property.” State of Tennessee v. Harris, 919 S.W.2d 619, 625 (1995). Failing to respect that legal fact invites disaster on two fronts.  First, suit may be filed in federal court alleging a violation of civil rights pursuant to 42 U.S.C. §1983. There is no cap on damages in such actions, and attorneys’ fees are awarded to the prevailing plaintiff in addition to damages.  Second, evidence of criminal conduct discovered under such circumstances is inadmissible in court, allowing the offender to escape prosecution even for serious felony offenses. It is crucial to distinguish civil from criminal procedural rules here, and the ramifications for not doing so can be astonishingly harsh. For that reason, the limits on an officer’s authority to enter or remain on the property are examined more comprehensively below.

The parameters are inflexible; the rule of law is that an officer attempting to serve civil process is permitted to go anywhere on the premises a (well behaved) member of the general public might be expected to go and no further. State v. Marcus Ellis, No. 01C01-9001-CR 00021, slip op. at 4, 1990 WL 198876, (Tenn. Crim. App., Nashville, Dec. 12, 1990).

The obligation to serve process indisputably gives officers the right to approach a dwelling and knock on the door. After all, the sheriff is required to “go to the house or place of abode of every defendant against whom the sheriff has process, before returning on the same that the defendant is not to be found.” T.C.A. § 8-8-201(a)(8). An individual has no expectation of privacy in the area in front of his residence that leads from the street to the front door, and what an officer sees while standing on the sidewalk between the street and door is not protected. State v. Baker, 625 S.W.2d 724, 727 (Tenn. Crim. App. 1981).

However, the Fourth Amendment to the United States Constitution and Article I, Section 7, of the Tennessee Constitution protect a citizen of this state from unreasonable searches and seizures of his dwelling and the curtilage that adjoins the dwelling. State v. Prier, 725 S.W.2d 667, 671 (Tenn. 1987); Welch v. State, 154 Tenn. 60, 289 S.W. 510 (1926).

Therefore, any significant departure from an area where the public is impliedly invited “exceed[s] the scope of the implied invitation and intrude[s] upon a constitutionally protected expectation of privacy.” Id. (quoting State v. Seagull, 95 Wash.2d 898, 632 P.2d 44, 47 (Wash.1981) (en banc)). And, while an officer attempting to serve process does have the right to go to the intended recipient’s home or “place of abode,” the officer may not enter the home itself without consent. Op. Tenn. Atty. Gen. No. 01-148 (September 24, 2001).

If it is obvious that no one is home, the deputy is at liberty to await the arrival of the residents. The deputy is not authorized to peer in windows or prowl around private, occupied, or fenced property. In Harris, the court pointedly stated: “Moreover, nothing in the law justifies the sheriff's proceeding down the lane behind a residence for over a hundred yards to serve civil process even if the sheriff had believed that Harris was ‘hiding’ from service.” Harris, 919 S.W.2d at 623. “Consequently, the warrantless search of appellant's property and the resulting seizure of (over 100) marijuana plants was unconstitutional. Any statements made by appellants must likewise be suppressed.” Id. at 624-625.

Although it may represent the deputy’s diligence, or may simply be an innocent effort to determine whether the property is inhabited or abandoned, walking around the exterior of a dwelling or attempting to gaze inside a window constitutes a search, and, “‘[e]xcept in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.'” State v. Lakin, 588 S.W.2d 544, 547 (Tenn. 1979) (quoting Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924)). Tennessee courts have consistently held that police entry upon private, occupied, fenced land without a warrant and absent exigent circumstances is unreasonable, and evidence obtained as a result of such a search must be suppressed. State v. Prier, 725 S.W.2d 667 (Tenn. 1987).