Some Thoughts on Justice Gorsuch and His Approach to Police Practices Cases

by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail:

Another article in this issue of The Virginia Criminal Justice Bulletin discusses a recent Tennessee Supreme Court case, Tennessee v. Christensen,[1] dealing with the effect of “no trespassing” signs on the legally recognized license to the public to approach the front door of a private residence. That decision addressed the question of whether the implied consent to the public to enter private property is rescinded when a resident has taken apparent actions to restrict visitors.  The Tennessee Supreme Court held that the answer to that question turns on “whether a reasonable person would conclude that entry onto the curtilage ….. by police or others was categorically barred.”  The court held further that merely posting “no trespassing” signs would not cause a reasonable person to conclude that the invitation to enter had been revoked.  In the opinion announcing its decision, the Tennessee Supreme Court relied heavily on United States v. Carloss, a decision of the United States Court of Appeals for the Tenth Circuit.[2]

There was a strong, lengthy dissenting opinion in Carloss, written by Judge Neil Gorsuch.  As of April 10, 2017, Judge Gorsuch is now Justice Gorsuch, having assumed the seat on the United States Supreme Court left vacant by the death of Antonin Scalia.  Observers of the Supreme Court love to speculate about positions that a new Justice is likely to take on cases before the Court.  Judge Gorsuch made some interesting comments in his Carloss dissent that may provide clues as to positions he will take on three issues of importance to the law enforcement community.

The Impact of “No Trespassing” Signs

The first of these issues is the one addressed in the Christensen and Carloss cases – the impact of “no trespassing” signs on the invitation to the public to enter private property.  That issue has not been addressed by the U.S. Supreme Court.  However, it is an issue of great importance, and, therefore, an issue that the Supreme Court might well address at some time in the not-too-distant future.  Therefore, it is of interest to see how Judge Gorsuch approached the issue in the Carloss case.

All three judges on the panel that decided Carloss wrote an opinion.  Judge Ebel wrote the opinion for the court.  Chief Judge Tymkovich joined that opinion, but it was his concurring opinion (which Chief Judge Tymkovich indicates was designed “to explain more precisely my thinking on the novel question presented by this case”) that provided the basis for most of Judge Gorsuch’s comments.  (It was also Chief Judge Tymkovich’s concurring opinion that provided the rule adopted by the Tennessee Supreme Court in its Christensen decision).

Judge Gorsuch describes the rule adopted by Chief Judge Tymkovich’s concurring opinion this way: “No Trespassing signs cannot revoke the license [to the public to enter private property] in the ‘residential context’ unless they are coupled with a ‘fence or other physical obstacle.’”  He also describes the reasoning used by Chief Judge Tymkovich: “[M]ost people know that it’s illegal to ‘trespass’ on private property, and they also know that it generally isn’t ‘trespassing’ to walk up to the front door of a house and knock.  So ….. ‘reasonable persons’ visiting a residential neighborhood understand the particular words ‘no trespassing’ to refer to conduct other than the exercise of the implied license [to enter].”

While there is a certain logic to this reasoning, Judge Gorsuch rejects it.  His primary reason is that the rule is inconsistent with the rule that prevailed at common law.  Judge Gorsuch indicates that “at the time of the founding the common law permitted government agents to enter a home or its curtilage[3] only with the owner’s permission or to execute legal process…… In fact, at common law, a homeowner could revoke any license to enter his property at his pleasure.”  Judge Gorsuch makes clear the significance of that quote:  “We know that the Fourth Amendment, at a minimum, protects the people against searches of their persons, houses, papers, and effects to the same degree the common law protected the people against such things at the time of the founding, for in prohibiting ‘unreasonable’ searches the Amendment incorporated existing common law restrictions on the state’s investigatory authority.”

These statements are significant because they form much of the basis for Judge Gorsuch’s conclusion that the posting of no trespassing signs is sufficient to rescind the invitation to enter private property.  However, they are also important because they support numerous reports that Gorsuch is an originalist.[4]  An originalist interprets the Constitution in accordance with the intent of the Framers of the Constitution.  The plain language of the Constitution is often a clue to the Framers’ intent (an approach to legal interpretation called textualism).  Another clue to proper interpretation is the law that existed at the time the constitutional language was written.  In the quotes above, Judge Gorsuch is consulting the common law for evidence of whether property owners can revoke the license to the public to enter private property.

Judge Gorsuch spends more time in his dissenting opinion explaining why the majority and concurring opinions are in error than he does articulating and explaining the rule he would adopt.  However, his rule seems to be that no trespassing signs should be sufficient to rescind the invitation to enter, at least if the signs are posted in places where they would be readily seen by persons approaching the property, and he would clearly apply this revocation of the invitation to the police as well.  As such, he would adopt a rule that would be appealing to liberals.

After discussing the no trespassing signs issues, Judge Gorsuch makes some brief comments about other issues the government could have raised in the case.  Included in these comments are statements about two other significant issues that should give liberals some pause.  Both of these statements are what lawyers call dicta.  These are statements that are not necessary to the court’s resolution of the issue it is deciding in a case.  As such, the dicta are not part of the court’s holding in the case and do not constitute precedent that applies to future cases.  Nevertheless, such statements often provide important insights into a judge’s thinking.

Good Faith Exception to the Exclusionary Rule

The first issue on which Judge Gorsuch offers an opinion in dicta concerns the extent to which evidence found by the police pursuant to a good faith mistake by the police is admissible at a criminal trial.  Following the lead of the U.S. Supreme Court, courts do not permit the introduction at trial of evidence obtained by the police in violation of the 4th Amendment (usually referred to as the exclusionary rule).[5]  Typically, this rule is applied even when the constitutional error by the police was the result of an honest and reasonable misunderstanding or application of the law.  However, the U.S. Supreme Court has made statements in recent cases suggesting that the Court may be ready to reconsider (or perhaps has already reconsidered) this approach.[6]  The strongest indication that the Court is leaning toward adopting what could be called a full-blown good faith exception to the exclusionary rule is found in Herring v. United States.[7]

In Herring, a police officer had arrested Herring after conducting a traffic stop because a computer check revealed an outstanding arrest warrant for Herring.  A search of Herring incident to the arrest resulted in the discovery of contraband.  However, the arrest warrant had been withdrawn, and therefore, the arrest of Herring was unconstitutional.  The fruits of a search incident to an arrest are inadmissible under the exclusionary rule if the arrest itself was unconstitutional.

In a previous case, Arizona v. Evans,[8] the police had also arrested the defendant on the basis of a database error indicating the presence of an outstanding arrest warrant for the defendant.  In that case, the Court declined to suppress the evidence obtained pursuant to a search of the defendant incident to his arrest, because the computer error was made by a court clerk.  The Court emphasized that the purpose of the exclusionary rule is to deter misconduct by the police, not by clerical employees.  Excluding the evidence in Evans would have had no effect on police behavior.

In Herring, however, it was a law enforcement officer who was responsible for the computer error.  Nevertheless, the Court still declined to suppress the evidence found in the search conducted incident to the unconstitutional arrest.  In reaching this conclusion, Chief Justice Roberts, writing for the Court, indicated that “[a]s laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”  This statement has received a great deal of attention.  It suggests that the Court has always taken the position that evidence obtained in good faith by the police – even though later found by a court to have been obtained unconstitutionally – is admissible.  While the Chief Justice only refers to “deliberate, reckless, or grossly negligent conduct,” the only unlawful acts by the police that would not be included in this description would be those made in good faith due to honest, reasonable mistakes.

Whether this means that the Court has now adopted a full-blown good faith exception to the exclusionary rule is open to debate.[9]  In his comments about other approaches that the government could have attempted in this case, Judge Gorsuch indicates that “I can imagine the government arguing that even if a Fourth Amendment violation took place here, it acted at most negligently and in good faith so that as a matter of remedy suppression should not follow” (citing Herring).  This could easily be interpreted as a statement from Gorsuch that he believes there is a full-blown good faith exception to the exclusionary rule and that he believes the exception has already been adopted by the U.S. Supreme Court.

Consent as Fruit of the Poisonous Tree

Another issue on which Judge Gorsuch weighs in gratuitously in his Carloss dissent concerns consent to search as fruit of some other unconstitutional action.  The most common situation where this issue arises is when the police arrest someone unconstitutionally (typically without probable cause), obtain consent from the person arrested to search an area (such as a house or automobile), and discover evidence of a crime during the search.

The strongest argument against the validity of the consent is that the consent is fruit of the poisonous tree.  The rationale behind the exclusionary rule is that the police will be encouraged to educate themselves about the law and follow the law if they know that they cannot use evidence found through actions that violate the Constitution. The Supreme Court has long held that in order to maximize this deterrent effect of the exclusionary rule, it is necessary to suppress not only the evidence obtained directly by the police from their unconstitutional behavior but also any evidence obtained in exploitation of (i.e., derived from) that behavior.[10]

In Florida v. Royer,[11] the Supreme Court held that the police had unconstitutionally arrested Royer at an airport when a valid Terry stop lasted too long because the police only had reasonable suspicion to stop Royer and did not have probable cause to arrest him.  Pursuant to the unconstitutional arrest, Royer consented to a search of his luggage that revealed drugs.  The Court indicated that the “consent was tainted by the illegality [i.e., the unconstitutional arrest] and was ineffective to justify the search.”  This statement constitutes a clear statement that consent to search can be fruit of the poisonous tree, but the Court did not elaborate on the circumstances (if any) when such consent would not be fruit of the poisonous tree.

However, the Supreme Court has examined when a confession obtained pursuant to an unconstitutional arrest will not be considered fruit of the poisonous tree.  In Brown v. Illinois,[12] the Court held that a confession made after an unconstitutional arrest is admissible if circumstances exist that break the connection between the illegal arrest and the confession (the so-called attenuation or purged taint exception to the fruit of the poisonous tree doctrine).  The Court identified four factors that courts should consider in determining whether a confession has been purged of the taint of the unconstitutional arrest: 1) whether the defendant was advised of his rights prior to the questioning that resulted in the confession, 2) how quickly the confession came after the arrest, 3) the presence of any intervening circumstances, and 4) the purpose and flagrancy of the unconstitutional arrest.

The Court has used these factors in other purged taint cases,[13] and it seems likely that the Court would also utilize them in the consent-as-fruit-of-an-unconstitutional-arrest situation.  Of course, the first factor would not apply to consent searches (although courts could logically inquire as to whether the defendant was told that he had a right not to consent to the search, even though there is no constitutional requirement that the police so advise a person from whom consent to search is sought[14]), but the other three factors would still be relevant.

With this background, Judge Gorsuch’s brief comments about consent to search in Carloss can be examined.  As with his comments about the availability to the government of a good faith exception to the exclusionary rule, Judge Gorsuch’s references to consent to search come in the course of his speculating about other tacks that the government might have pursued to seek admission of the evidence in Christensen.  He indicates that “[m]aybe the government could have argued that its initially nonconsensual search in this case became a consensual and reasonable one thanks to the homeowner’s after-the-fact consent.”  (The suggestion here seems to be that the government could have argued that, even if the no trespassing signs rescinded the invitation to enter, Christensen’s actions after the police arrived could have been viewed, perhaps, as consent to enter, or what Gorsuch refers to as “a retroactive license”).  Later, Gorsuch indicates that “[a]fter-the-fact consent may suffice [to justify entry of the private property] if freely given.”

Clearly, one cannot draw firm conclusions from these comments about Justice Gorsuch’s likely approach to consent as fruit of unconstitutional behavior.  Nevertheless, the comments do not provide a basis for optimism for persons who would like to see greater protections for criminal defendants under the 4th Amendment.


Speculation about how a new Supreme Court Justice will decide future cases is a favorite parlor game of observers of the Court.  It is always risky to draw conclusions about future decisions that any judge will make based solely on statements a judge has made in dicta.  Statements made in dicta are made without the benefit of carefully constructed arguments on both sides of an issue in the context of a real fact situation.  That is one of the important reasons why these statements are not afforded the status of precedents.

On the other hand, these statements provide a window into the thinking of a judge.  The position taken by Judge Gorsuch on the effect of no trespassing signs on the license to the public to enter private property should provide some reason for hope to supporters of a 4th Amendment that provides extensive rights to persons accused of crimes.  Numerous comparisons of Neil Gorsuch and Justice Scalia have suggested that they are both originalists and textualists.  This sometimes led Justice Scalia to take positions in favor of criminal defendants under the 4th Amendment.[15]  The decision on the issue before the court in Carloss provides some preliminary support for a belief that Justice Gorsuch may take 4th Amendment positions similar to those of Justice Scalia.  However, the statements in dicta by Judge Gorsuch on a full-blown good faith exception to the exclusionary rule and consent to search as fruit of an unconstitutional arrest will be of concern to advocates of a more robust 4th Amendment.

Judge Gorsuch is now Justice Gorsuch.  Let the court watching begin!


[1] 2017 Tenn. LEXIS 195.

[2] 818 F.3d 988 (2016).

[3] The curtilage consists of areas near the home where activities of the sort associated with the privacy of the home take place.

[4] See, for example, Adam Liptak and Matt Flegenheimer, “Neil Gorsuch Confirmed as Supreme Court Justice, New York Times, April 7, 2017, retrieved from

[5] Weeks v. United States, 232 U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643 (1961).

[6] See an exchange between H. Lee Harrell and this author for a discussion of this issue.  H. Lee Harrell, “Feeling Left Out:  The Exclusionary Rule in 2009,” and Jack E. Call, “Comments on Lee Harrell’s ‘Feeling Left Out:  The Exclusionary Rule in 2009,‘” Virginia Police Legal Bulletin, Vol. 4, No. 1 (December 2009) at

[7] 555 U.S. 135 (2009).

[8] 514 U.S. 1 (1995).

[9] Supra, note 7.

[10] Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920); Nardone v. United States, 308 U.S. 338 (1939).

[11] 460 U.S. 491 (1983).

[12] 422 U.S. 590 (1975).

[13] See Utah v. Strieff, 136 S.Ct. 2056 (2016) for a very recent instance of this.

[14] Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

[15] See, for example, Kyllo v. United States, 533 U.S. 27 (2001), Arizona v. Gant, 556 U.S. 331 (2009), and Florida v. Jardines, 133 S.Ct. 1408 (2013).