IN: A person has a right to refuse to answer a knock-and-talk; refusal not exigent circumstances

A person has a right to refuse to answer a knock-and-talk, and that refusal isn’t exigent circumstances. Here, the police came to the juvenile’s house because of a noise complaint, found a store shopping cart in the back of a pickup truck, and they attempted a knock-and-talk. The occupants ignored them for a long time and the police entered the curtilage at the back of the fenced house in an effort to get them to open up. J.K. v. State, 2014 Ind. App. LEXIS 189 (April 29, 2014):

III. Knock and Talk and Unlicensed Physical Intrusion on Protected Curtilage

Next, J.K. contends the officers in this case violated J.K.’s Fourth Amendment rights by engaging in an unconstitutional knock and talk. J.K. maintains that the officers’ presence at the home and continually knocking for approximately one hour without an answer from an occupant exceeded their implied invitation to knock and talk. See Jardines, 133 S.Ct. at 1415-16. Essentially, we consider whether conduct that may begin as a valid knock and talk may devolve into an unlicensed physical intrusion on a protected area, resulting in an unconstitutional search. See id. at 1415-18; see also United States v. Jones, 132 S.Ct. 945, 949-53 (2012) (holding a physical intrusion—or “trespass”—on protected property may constitute an unconstitutional search).

This is an interesting issue, but it is one on which there is little binding authority. The Supreme Court in Jardines described the implied invitation to knock and talk as the license to do “no more than any private citizen might do.” Jardines, 133 S.Ct. at 1416 (citation omitted). As noted above, this limited invitation “permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Id. at 1415 (emphasis added). This statement implies that a failure to leave after a brief period exceeds the implied invitation to enter one’s curtilage and would violate the Fourth Amendment. Indeed, Jardines held that law enforcement’s use of trained drug dogs on the defendant’s front porch violated the Fourth Amendment; that holding is based on the idea that such conduct was not encompassed by the implied invitation to approach portions of the curtilage. Id. at 1416-17.

Discussing the law enforcement’s unconstitutional search in Jardines, the Supreme Court explained how a conventional knock and talk may be distinguished from an unconstitutional search and that the nature of the police conduct is central in determining whether that conduct conforms to social norms:

An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose.

Id. at 1416 (footnote omitted).

Further, it is well-established that “the occupant has no obligation to open the door or to speak.” King, 131 S.Ct. at 1862. “When the police knock on a door but the occupants choose not to respond or to speak, the investigation will have reached a conspicuously low point . . . .” Id. (citation and quotation marks omitted). Additionally, the Indiana Supreme Court has stated that “[i]f residents exercise this right, officers generally must leave and secure a warrant if they want to pursue the matter.” Hardister, 849 N.E.2d at 570.

With these principles in mind, we must conclude that the officers’ conduct was an unconstitutional search in violation of the Fourth Amendment. The officers’ actions in this case extended well beyond the implied invitation to approach a citizen’s front door. The officers surrounded J.K.’s residence around one o’clock in the morning and repeatedly knocked on the door for over forty-five minutes. During that span of time, the officers peered through the windows and continuously yelled into the house demanding that an occupant answer the door. The Supreme Court has said officers may “approach a home and knock, precisely because that is ‘no more than any private citizen might do.'” Jardines, 133 S.Ct. at 1416 (quoting King, 131 S.Ct. at 1862). There is no doubt that the officers’ conduct in this case went far beyond anything that would ordinarily be expected to occur on one’s doorstep. If three men with guns and flashlights were to surround the average person’s home in the wee hours of the morning, knock for over forty-five minutes, and yell inside demanding the occupants open the door, this situation would—like the Court noted in Jardines—inspire that homeowner to call the police.

Setting aside the officers’ conduct while on the curtilage, the length of time the officers remained there would alone constitute a violation of the Fourth Amendment. The officers knocked but did not receive an answer, ostensibly because the occupants chose not to answer. At this time, the officers’ investigation reached a “conspicuously low point.” King, 131 S.Ct. at 1862. But rather thanvacate J.K.’s curtilage and attempt to obtain a warrant,5 the officers simply remained on the curtilage for an additional forty-five minutes. This is not permitted under the Fourth Amendment.

[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity . …

Jardines, 133 S.Ct. at 1414 (citation and quotation marks omitted). When a Hoosier exercises his constitutional right to remain inside his home, law enforcement may not pitch a tent on the front porch and wait in hopes of obtaining evidence.