Anthony Bandiero, Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

A roadside chat recorded a little after the Fourth of July. The question comes from an officer in Ohio, where fireworks are now legal statewide but still a misdemeanor under his city ordinance, and he wants to know whether that ordinance gets him into a fenced backyard.

Can police enter a backyard for a fireworks violation? I probably should have made this video before the Fourth of July, but it actually came in after. Anyway, let me give you some context here.

This officer is from Ohio. The officer says, okay, fireworks are now legal in Ohio, I’m sure you know, overall. But in his city it is still a misdemeanor to possess, discharge or transport, per city ordinance. Do you believe that police have the right to enter a backyard of a single family home to make arrests and seize the fireworks? This could be taking place at any hour of the day, afternoon or night. It’s a residential neighborhood. The street is a 25 mile per hour zone. The backyard is very close to the home, small, it has a fence and so forth. It has some sight screening. I have the address to the house, I won’t give you that here, but I did look at the house.

Does an ordinance violation let you enter the curtilage?

All right, so the answer is, look, even if the people in the backyard are violating the law, in order to enter the backyard the police would need some form of exigency. Emergency. Urgency. What is pressing right now in order to prevent you or inhibit you from getting a search warrant? That’s what we’re looking for.

Now, I don’t have any fireworks cases that I can think of, or that I’ve seen, or that I’ve kept track of. But I do have nuisance cases involving loud music, and I got to tell you that this is kind of where I’m going to go with this. Blowing off the fireworks in the backyard against the ordinance may be deemed an ongoing nuisance where it is not reasonable to wait to go get a warrant.

What did United States v. Rohrig say about loud music and exigency?

Let me read you a case. It’s a pretty decent case. Famous is probably stretching it, but it’s a pretty good case on this issue of nuisances. It’s United States v. Rohrig, R-O-H-R-I-G. It’s a case out of the Sixth Circuit, 1996. Let me read you the context here. This is a loud music call.

The officers undoubtedly confronted a situation in which time was of the essence. The officers testified that they arrived at the defendant’s residence in the middle of the night in response to complaints from the neighbors, and they could also hear the loud music at least a block away from the home. So imagine the fireworks are going off late at night. Upon their arrival at the scene, they were confronted by an irate group of pajama-clad neighbors. Had the officers attempted to secure a warrant, it is clear that the audible assault emanating from the defendant’s home would have continued unabated for a significant period of time. Thus, if we insist on holding to the warrant requirement under these circumstances, we in effect tell the defendant’s neighbors that mere loud and disruptive noise in the middle of the night does not pose enough of an emergency to warrant an immediate response.

That’s not what the court found. The court found that the entry was lawful.

What do you have to articulate before going into the backyard?

But I also want you to know that if there is no ongoing exigency, then entering the garage or entering the backyard could be problematic. So in order to justify this, the cops got to articulate, hey, what is going on right now? Are we getting calls from the neighbors? Are they concerned?

Let’s say that these fireworks are not just ones on the ground, that they actually fly through the air. They’re missiles. I’d be concerned that one of these fireworks would land on my roof and burn my house down, or get caught in one of my trees. So what are the cops confronted with? Are they bottle rockets? Are the sparks and everything going to other people’s yards? What do you have here? One o’clock p.m. is different than 1 a.m. So that’s what I want to hear cops articulate.

Can you enter the backyard just to seize the fireworks or write a citation?

But if that’s not what’s going on, and the cops simply want to seize the fireworks but they’re not being blown off at this time, then you can’t enter the backyard. If cops want to give them a citation but there’s no ongoing nuisance right now, then cops should not enter the backyard. Cops are going to have to take the regular approach of getting a warrant, seeking their consent, they don’t want to come out and so forth. But that’s what you’re going to have to do.

The crime itself, the fact that this violates an ordinance, in and of itself does not give you the authority to invade on a person’s curtilage, like their backyard.

So I hope this helps. I’m sure in most of these cases the cops will have exigency, especially with fireworks. They can be considered a danger and so forth, and a nuisance to neighbors. So I’m sure they probably had it. But I want the cops to articulate it.

I’m also going to mention that there’s an Ohio case from around 2000, since my officer is from Ohio, where the Ohio court upheld this Rohrig type of analysis.

The short version

  • Even if the people in the backyard are violating the law, in order to enter the backyard the police would need some form of exigency. What is pressing right now that prevents you from getting a search warrant?
  • I don’t have any fireworks cases, but I do have nuisance cases involving loud music. Blowing off fireworks in the backyard against the ordinance may be deemed an ongoing nuisance where it is not reasonable to wait to go get a warrant. That’s United States v. Rohrig, Sixth Circuit, 1996.
  • The cops got to articulate what is going on right now. Calls from neighbors? Missiles going over other people’s roofs? One o’clock p.m. is different than 1 a.m.
  • If the fireworks are not being blown off at this time and cops just want to seize them or write a citation, you can’t enter the backyard. Get a warrant or seek consent.
  • The fact that this violates an ordinance, in and of itself, does not give you the authority to invade on a person’s curtilage.

There’s your answer. Hope it helps.

Related from Blue to Gold

This article is a lightly edited transcript of a Blue to Gold roadside chat and is for training purposes only. It is not legal advice. Check your own state law and your prosecutor before acting. Source video: Ep. #311