Can police enter your gated yard without permission? Questions arise after arrest of Harrisburg activist - PennLive

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Editor’s Note: This video contains graphic language.

One day after Harrisburg police released body cam footage showing the arrest of a community activist after a noise complaint, Kimeka Campbell said she still believes the officer didn’t have a right to enter her fenced back yard.

She repeatedly ordered the officer to leave, because she believed he had unlawfully opened the latched gate of her wooden 6-foot privacy fence to let himself inside a darkened corner of her yard.

But he refused to leave and the incident ended in a cloud of pepper spray and Campbell in handcuffs, charged with two summary offenses.

The incident at 11:30 p.m. Saturday at Campbell’s home in the 300 block of South Front Street launched a vigorous debate among people over privacy rights in their own yards and police officers' ability to conduct their duties.

So did the officer have a right to be on her property?

It depends, according to local attorneys.

Dauphin County’s Chief Deputy Public Defender Paul Muller said it didn’t seem necessary for the officer to enter the yard.

“He didn’t use his flashlight until he was well into the yard,” Muller said, after reviewing the body cam footage. “I think he unnecessarily created a potentially dangerous situation over a minor issue.”

This screenshot shows the moments after an officer entered Kimeka Campbell's darkened back yard and was greeted by her dogs.

That being said, Muller said her recourse was to file a complaint afterwards.

“Whether he could lawfully be in the yard is debatable, but a civil issue,” he said. “The Fourth Amendment protects citizens from unlawful search and seizure unless there is probable cause.”

The question becomes, Muller said, did the noise complaint constitute probable cause?

“I know this isn’t a straightforward answer,” he said, “but there rarely is in one in these cases.”

The city’s mayor, police commissioner, and district attorney have said they believe the officer had a duty to try to find the property owner to properly investigate the noise complaint. They said it was reasonable for the officer to go to the source of the noise: the back yard.

“He’s investigating a complaint,” said Commissioner Thomas Carter. “He has a right to be there. His sole purpose was to talk to the property owner.”

Carter said the officer was prepared to give a warning instead of a citation, but he needed the owner’s name and date of birth for his paperwork, to confirm that he had contacted the owner and resolved the complaint.

If Campbell had provided that information, the officer would have quickly left, Carter said. The officer is heard on the video saying he just needed her name and "I’m out of here.” Campbell provided her full name, including spelling her first name, but then refused to spell her last name or provide her date of birth, insisting that the officer had breached her rights.

The way the police department’s body cameras are set up, the audio begins when the officer presses the start button, but the video is captured 20 for seconds prior without audio. The officer started recording after he entered the yard when Campbell’s dogs began barking at him, so that’s when the audio begins, but the video saved 20 seconds prior showing the officer outside the fence and opening the gate.

The officer said he tried to get the attention of people in the back yard before opening the gate, and that he announced himself, but that was not recorded on the footage.

After Campbell’s arrest, she called for the officer to be fired and a local organization started a petition for his firing and more accountability for police.

Carter said Community Policing Coordinator Blake Lynch invited Campbell to come downtown to watch the officer’s body cam footage and have a discussion prior to the public release of the video, but she declined.

District Attorney Fran Chardo said going into the back gate to find the homeowner wasn’t much different than an officer walking up to a front porch to find a homeowner.

“The conduct of the police officer was entirely reasonable and lawful,” Chardo said. “It’s no different than a neighbor walking up and seeing if you’re home.”

The Fourth Amendment protects against “unreasonable search and seizure,” and attorneys say the key factor is reasonableness of the officer’s actions.

The officer, for example, couldn’t simply open up her front door and walk inside her home if she didn’t answer, Chardo said.

“The house is different from the yard,” he said. “There is a big difference in the expectation of privacy.”

Even if a resident believes an officer’s conduct is out of line, Chardo said people should respond reasonably and “take up any grievance after the fact.”

This is a daytime view of Kimeka Campbell's back yard in Shipoke with a red circle showing where the latched gate is located.

The Fourth Amendment allows five exceptions, according to attorneys, and the relevant one in this case is known as “curtilage,” a term for the property attached to someone’s home. The rules around when an officer can enter the curtilage is extremely fact-specific, including the size of the yard, what is publicly visible in the yard, and the location of the gate, among other details, attorneys said.

So who gets to decide whether an entry into curtilage is legal? It likely would require a homeowner to file a lawsuit and then the judge would decide, Muller said.

“The Fourth Amendment is like Swiss cheese, the courts have poked so many holes and exceptions in it over the years,” he said. “It’s like reading tea leaves to try to get an answer.”

Defense attorney Brian Perry said even if the officer’s entry was considered unreasonable, there isn’t an automatic remedy, like if officers had seized physical evidence. In that case, the evidence could be suppressed. But there is no such remedy in this case like automatic dismissal of the charges she now faces.

“However, because she was in her own back yard,” Perry said. “I find it hard to believe the Commonwealth can prove her guilt beyond a reasonable doubt on the charge of disorderly conduct.”

Campbell also is facing a summary offense for the noise complaint.

Campbell said she still has questions, and complaints, from her interaction with police. She said the officer accused her in the disorderly citation of refusing to turn the music down, but the music was off when the officer entered the yard.

“There are discrepancies,” she said. “Can officers sneak onto the property of residents? Why not go to the front door? All those questions, I still have.”

READ: Rash of shootings in Harrisburg due to gangs: police

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