North Carolina Law Review

University of North Carolina School of Law

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Chapel Hill, NC 27514

The Fourth Amendment's De Facto Physical Barrier Requirement: A Movement Toward a True Totality of the Circumstances Test After United States v. Carloss

January 17, 2018

96 N.C. L. Rev. 546 (2018)

 

The phrase “no trespassing” conveys a simple message: one may not enter someone else’s property without an invitation or the legal authority to do so. Homeowners often use no trespassing signs to signal that visitors are unwelcome on their property. In circumstances involving police, however, most courts have held that no trespassing signs alone are ineffective in revoking the customary license police are presumed to have. Instead, the most important consideration for most courts is the existence of a barrier physically preventing police from entering the premises. In essence, most courts have created a de facto requirement that a barrier exist between the homeowner and the police to maintain the homeowner’s Fourth Amendment rights. This de facto requirement leads courts to apply a more stringent standard than is constitutionally required for homeowners. Consequently, courts have made it more difficult for homeowners to keep police away from their homes.

 

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