Also known as: implied licences by conduct · implied license
Written by attorneys · grounded in primary & secondary sources — see below
A revocable permission inferred from a property owner's conduct or surrounding circumstances that allows another to enter land or perform an act that would otherwise be unlawful. The scope of the permission is measured by the conduct a typical visitor would undertake for ordinary social or business purposes.
A patrol officer suspected Marco stored fentanyl in a toolbox inside the roofed carport attached to his home. The officer walked a trained narcotics dog up the driveway and into the carport, where the dog alerted at the toolbox and kitchen door. Marco moved to suppress the resulting evidence. The conduct exceeded any implied license because ordinary visitors do not bring detection dogs into attached structures to investigate for contraband.
John Wiley & Sons discovered that Kirtsaeng had imported and resold textbooks manufactured abroad for the U.S. market. Wiley argued the sales infringed its distribution right. Kirtsaeng contended that Wiley's initial foreign sales and subsequent conduct created an implied license permitting resale in the United States. The court examined whether the copyright owner's actions manifested permission for the challenged distribution.
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No. The implied license permits only the limited conduct of a typical visitor approaching to knock and speak briefly. Bringing a trained detection dog onto the porch for investigative purposes exceeds that license and constitutes a search of the curtilage.
Supporting sources
Courts examine objective indicia such as fencing, personal items, proximity to the home, and whether the area appears reserved for private use. A maintained path alone does not extend the license when taller hedges and secluded features signal that the space is not open to exploratory investigation by visitors.
Supporting sources
No. Routine access by service workers may create a limited implied license for those specific purposes, but it does not authorize officers to bring a drug dog into the same area for evidence gathering. The license is defined by ordinary social norms, not by the investigative goals of law enforcement.
Supporting sources
…right after they had been directly told that they were prohibited from doing so. We concluded that the defendants had an implied license to use the common areas of the building to contact tenants even without "any proof of direct authority"; and therefore, the defendant's "entry" was lawful.[^maj-19] Id. at 639-640. The…