State v. Lohse
State v. Lohse
Opinion of the Court
¶ 1 Cody Lohse appeals from his convictions and sentences for numerous drug-related offenses, arguing the trial court erred by denying his motions to suppress evidence. He contends law enforcement obtained a search warrant based on information gained by unlawfully trespassing into his curtilage and that the search warrant failed to describe his home with sufficient particularity. We vacate the decision of the trial court in part and remand for further proceedings.
Factual and Procedural History
¶ 2 "In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court's ruling." State v. Gonzalez ,
*609After passing through both gates, the commander went straight to the front door where he knocked and identified himself.
¶ 3 When Lohse opened the door, the commander immediately smelled the odor of raw marijuana coming from inside the home. Lohse admitted there was a small amount of marijuana in the house, and another officer confirmed that no one present possessed a "medical marijuana card." See A.R.S. § 36-2801(13), (14). The commander then called narcotics detectives, who obtained a search warrant and discovered morphine, methamphetamine, marijuana, a handgun, a shotgun, and several items of drug paraphernalia.
¶ 4 Before trial, Lohse filed motions to suppress all evidence uncovered by the search of his home, arguing "sheriff's personnel trespassed into the curtilage of [his] home" and that the search warrant was invalid because it listed an address different than his own. Following a hearing, the trial court denied both motions, finding the officers had legitimately entered the curtilage pursuant to their community-caretaking function and, although the search warrant listed a neighbor's address, "the affidavit ... accurately describe[d] the residence actually served."
¶ 5 Following trial, the jury found Lohse guilty of possession of a narcotic drug, possession of marijuana, two counts of misconduct involving weapons, and five counts of possession of drug paraphernalia.
Community Caretaking
¶ 6 As a threshold matter, the trial court erred by determining the community-caretaking function justified the officers' intrusion into Lohse's curtilage. See State v. Mendoza-Ruiz ,
¶ 7 Here, nothing in the record indicates officers entered the curtilage of Lohse's home to address any public-safety concern or prevent any harm from occurring. Rather, they were investigating an aggravated assault that "had been around for a while." As the commander recognized, making contact with Lohse was not "an urgent necessity"; he simply did not want "to delay [the investigation] any further." Because officers did not enter pursuant to the community-caretaking function, we now address whether they were otherwise privileged to enter the curtilage.
General License to Enter Curtilage
¶ 8 Lohse contends that by passing through two gates-one of which he asserts was marked with a "No Trespassing" sign
¶ 9 In relevant part, the Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches." A search within the meaning of the Fourth Amendment "undoubtedly occur[s]" when "the Government obtains information by physically intruding" into a person's home. Florida v. Jardines ,
¶ 10 Nevertheless, the public has a general license-unless revoked-"to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave." Id. at 8,
¶ 11 Here, the state does not contest that officers had entered the curtilage of Lohse's home when they knocked on his front door. Accordingly, we must determine whether the officers' entry was permitted by the general license or whether Lohse had effectively revoked it under the totality of the circumstances. See Grady v. North Carolina , --- U.S. ----,
¶ 12 Neither has the United States Supreme Court, nor any reviewing court in Arizona, squarely addressed the circumstances by which a resident revokes the general license to enter the curtilage and knock on the front door.
¶ 13 To resolve whether coupling no-trespassing signs with gates and fences revokes the general license, courts consider the totality of the circumstances to determine whether a resident has asserted an objectively reasonable expectation of privacy warning uninvited visitors they are not welcome. See Brown v. State ,
¶ 14 By contrast, those cases determining that a combination of no-trespassing signs and a fence or gate did not bar uninvited visitors have done so when officers entered through an open gate. See United States v. Bearden ,
¶ 15 Consistent with this weight of authority, a resident revokes the general license to approach the front door when circumstances clearly indicate that uninvited *612visitors are not welcome. As the Idaho Supreme Court reasoned, a closed gate and no-trespassing sign communicate a clear demand for privacy that a reasonable member of the public will not breach apart from an explicit invitation. Christensen ,
¶ 16 The state argues any sign could have "reasonably been construed as informing visitors not to go anywhere on the property outside of the pathway to Lohse's front door." While this interpretation may be reasonable when a no-trespassing sign is unaccompanied by other circumstances, the same cannot be said when such a sign has been posted on a privacy fence surrounding the curtilage of a home. Instead, the more reasonable message would be that uninvited visitors should not enter within the marked fence.
¶ 17 Here, however, we cannot resolve whether Lohse effectively revoked the general license because the trial court resolved the question under the community-caretaker exception and therefore did not make the requisite findings. Although it is undisputed from the record that Lohse's home was surrounded by a chainlink fence and an opaque privacy fence, and that officers opened both gates to enter the curtilage, it remains unresolved whether a private-property or no-trespassing sign had been posted on the day in question. We also note that a witness testified to additional signals that Lohse did not want to be disturbed by uninvited visitors: his mailbox was located on the street and security cameras were visibly in place. See Brown ,
¶ 18 Citing Jardines , the state argues that officers were privileged to enter the curtilage because they "went to Lohse's front door without any type of special investigatory tools that would put them in a better position than an ordinary visitor." But Jardines concerned what officers who have lawfully entered the curtilage may do, see
¶ 19 Finally, the state argues it was "certainly possible that the trial court simply did not believe Lohse's witness that there was a no-trespassing sign in the first instance" and that it "implicitly den[ied]" that a sign had been posted. But, the absence of a no-trespassing sign was not necessary to whether the community-caretaking doctrine justified the officers' entry into the curtilage. See Horton v. Mitchell ,
¶ 20 Therefore, we remand to the trial court to make findings of fact to determine what circumstances existed on the day in question pertinent to whether Lohse had revoked the general license to approach and to determine what additional proceedings might be necessary, in light of those findings and consistent with this opinion.
Particularity of the Search Warrant
¶ 21 Finally, although we are remanding to the trial court to resolve outstanding factual questions, we nevertheless address Lohse's final assignment of error because it is an independent ground for suppression. Lohse complains the search warrant lacked sufficient particularity because it listed the wrong address and merely described his "trailer ... [as one] surrounded *613by a chain-link fence in a world of trailers surrounded by chain-link fences." Whether a warrant is sufficiently particular is a constitutional issue we review de novo. State v. Dean ,
¶ 22 The Fourth Amendment requires that warrants "particularly describ[e] the place to be searched." This requirement is satisfied "if the property is sufficiently recognizable from the description to enable the officer [executing the warrant] to locate the premises with definiteness and certainty" and "with reasonable effort." State v. Morgan ,
¶ 23 Here, although the search warrant listed the address of another home on the same block, we agree with the trial court that it accurately described Lohse's home. Specifically, the warrant included such details as the color scheme of the home, the types of fences, that Lohse's truck was parked out front-even listing its make, model, license plate, and vehicle identification number-and most notably, "that Deputies [we]re standing by at the residence, awaiting the completion of a warrant to search the residence/property." Notwithstanding the erroneous address, the warrant more than sufficiently described Lohse's home with reasonable certainty and particularity. See
Disposition
¶ 24 We vacate the trial court's denial of Lohse's motion to suppress and remand for further proceedings consistent with this opinion.
In his briefing, Lohse asserts the sign read "No Trespassing." This contention, however, is unsupported by any testimony or evidence admitted at the hearing on the motion to suppress. Moreover, the trial court precluded the admission of the purported photograph of the sign on the state's objection that it lacked foundation. To the extent the court adopted the state's reasoning that the photograph lacked foundation because there was "no evidence as to who took it and when it was taken," we note that laying foundation for an image does not depend on who took the photograph and may not depend on when it was taken. See Ariz. R. Evid. 901. Rather, a witness may provide adequate foundation by "attest[ing] that the photograph[ ] accurately portray[s] the scene or object depicted" at the relevant time frame. State v. Haight-Gyuro ,
The jury acquitted Lohse of hindering law enforcement, possession of methamphetamine for sale, and four counts of misconduct involving weapons.
Although Lohse's characterization of the wording on the alleged sign differs from the testimony at the suppression hearing, we cannot conjure a meaningfully different message that an uninvited visitor would understand from a sign reading "private property" rather than "no trespassing." Thus, for the purposes of this opinion, we not only use the terms interchangeably, we assume for the sake of argument that Lohse had posted such a sign.
Lohse relies on State v. Jacot for the proposition that a no-trespassing sign is a factor in determining whether a resident has revoked this general license.
A number of courts have resolved this issue on state-constitutional grounds; they do so, however, not to determine whether these measures communicate revocation of any license. Instead, they do so to determine whether to extend constitutional protection to areas beyond the curtilage. See State v. Bullock ,
Lohse has not argued-and, therefore, we do not consider-whether the officers' entry violated Arizona's constitution. See State v. Jean ,
Compare United States v. Carloss ,
Compare United States v. Perez-Diaz ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.