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Avoiding Service of Legal Process by Posting “No Trespassing” Signs




Although there are a few exceptions, Pennsylvania law requires that legal process be served by the County Sheriff’s Office. But what is a sheriff’s deputy to do when the defendant he is supposed to serve has posted her property with “No Trespassing” signs and has a locked gate across her driveway? Does the deputy infringe upon the federal constitutional rights of the owner by walking past the gate?

The Third Circuit Court of Appeals confronted this situation recently in a lawsuit filed against the Monroe County Sheriff’s Office. The court ruled that the plaintiffs failed to state a federal constitutional claim. The case is legally significant because, quite surprisingly, this issue has never been decided.

Multiple Attempts at Service

The Deputy attempted to visit the defendant’s home three times but each time found the gate to the driveway locked. He left his card in the mailbox, but no one picked it up. The property was not just the defendant’s home. Her husband’s law office was in a converted garage adjacent to the home.

On the fourth day, finding the gate still locked and his card still in the mailbox, the deputy parked his car, went around the locked gate on foot, and walked up the driveway toward the owners’ house. When he reached the end of the driveway, he approached the detached law office building, where he saw a woman standing inside an open garage. He told the woman he was looking for the defendant, and the reply was “You found me.” The deputy served the defendant, at which point her husband, the lawyer, approached and asked the deputy to identify himself and explain why he was on their property. He briefly answered the lawyer’s questions and then left the way he came.

The Lawsuit

The lawyer and his wife sued the Sheriff and his deputy in federal court claiming that they infringed upon their Fourth Amendment rights by conducting an unlawful search on their private property. The federal district court, based in Scranton, rejected the plaintiffs” federal claims.

Argument in Philadelphia

The case was later argued on appeal before the Third Circuit Court of Appeals in Philadelphia. The panel consisted of Judges Ambro, Krause, and Scirica.

After an animated argument, the court concluded that the Deputy’s service of process on the attorney’s wife was not within the “curtilage” of the home, was not an illegal 4th Amendment search and no claim was stated because service was not within the private “curtilage” of the home but was within “open fields,” a legal term relating to areas on rural property with a lesser expectation of privacy:
“…The government’s intrusion upon the open fields is not one of those ‘unreasonable searches’ proscribed by the text of the Fourth Amendment,” Oliver, 466 U.S. at 177, his trespass onto the [Defendants’] property did not violate the Fourth Amendment. The District Court properly dismissed their Fourth Amendment claims on summary judgment.” Stone v. Martin, No. 17-1150, 2017 U.S. App. LEXIS 23640 (3d Cir. Nov. 22, 2017).

State Claims

The plaintiffs also raised claims under Pennsylvania State law and those claims were sent to the Monroe County Court of Common Pleas for disposition. The Sheriff asked that these claims also be dismissed and he is waiting for a ruling on those claims.

The Opinion

The case was argued by NEWMAN WILLIAMS shareholder, Jerry Geiger. The plaintiffs still have the option of asking the U.S. Supreme Court for review. The opinion can be downloaded here.


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