CA3: Knock-and-talk at back door violated curtilage and Fourth Amendment

The knock and talk exception only applies to the front door. If the officer goes to the back door first, the knock and talk exception doesn’t apply. The officer’s entry onto the curtilage here was a violation of the curtilage as a matter of law. Carman v. Carroll, 749 F.3d 192 (3d Cir. 2014):

From the moment that Carroll entered the Carmans’ backyard, he was in the curtilage surrounding their house. It is undisputed that Carroll entered into the Carmans’ curtilage without a warrant, without consent, and without exigent circumstances. Carroll argues that he nonetheless did not violate the Fourth Amendment because he entered the Carmans’ property while conducting a “knock and talk.” As he correctly points out, a “knock and talk” encounter is a permitted exception to the warrant requirement. Accordingly, we assess whether this exception applies to this case.

Under the “knock and talk” exception, “a police officer not armed with a warrant 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 Kentucky v. King, 131 S. Ct. 1849, 1862, 179 L. Ed. 2d 865 (2011)); see also Marasco, 318 F.3d at 519 (“Officers are allowed to knock on a residence’s door or otherwise approach the residence seeking to speak to the inhabitants just as any private citizen may.”). Needless to say, government officers cannot benefit from the “knock and talk” exception simply because they knock on a door. For purposes of the Fourth Amendment, a “knock and talk” is a brief, consensual encounter that begins at the entrance used by visitors, which in most circumstances is the front door. A “knock and talk” encounter must satisfy three requirements.

First, a police officer, like any visitor, must “knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” See Jardines, 133 S. Ct. at 1415.

Second, the purpose of a “knock and talk” must be to interview the occupants of a home, not to conduct a search. See id. at 1416 n.4 (“[I]t is not a Fourth Amendment search to approach the home in order to speak with the occupant, because all are invited to do that. . . . But no one is impliedly invited to enter the protected premises of the home in order to do nothing but conduct a search.”); Marasco, 318 F.3d at 520 (noting that the “knock and talk” exception may apply “[w]here officers are pursuing a lawful objective, unconnected to any search for the fruits and instrumentalities of criminal activity” (emphasis added)). In Jardines, for example, the officer’s entry into the curtilage violated the Fourth Amendment because his “behavior objectively reveal[ed] a purpose to conduct a search, which is not what anyone would think he had license to do.” 133 S. Ct. at 1417.

Third, a “knock and talk” encounter must begin at the front door because that is where police officers, like any other visitors, have an implied invitation to go. It is well settled that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.” Id. at 1415 (quoting Breard v. Alexandria, 341 U.S. 622, 626, 71 S. Ct. 920, 95 L. Ed. 1233, 62 Ohio Law Abs. 210 (1951)) (internal quotation marks omitted). This implied invitation “typically permits the visitor to approach the home by the front path …. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.” Id. at 1415.

Although officers have a right to knock at the front door while executing a “knock and talk,” this right does not “necessarily extend[] to the officers the right to enter [elsewhere] into the curtilage.” Marasco, 318 F.3d at 520. In Marasco, we recognized that an officer’s entry into other parts of the curtilage “after not receiving an answer at the front door might be reasonable” in limited situations. Id. (emphasis added). However, we rejected the “sweeping proposition” that “officers may proceed to the back of a home when they do not receive an answer at the front door any time they have a legitimate purpose for approaching the house in the first place.” Id. at 519-20.

In this case, Carroll cannot avail himself of the “knock and talk” exception to the warrant requirement because he entered the back of the Carmans’ property without approaching the front door first. Carroll contends that the layout of the Carmans’ property “made the back door the most expedient and direct access to the house from where the troopers had to park.” Carroll Br. at 18. While it may have been more convenient for the troopers to cut through the backyard and knock on the back door, the Fourth Amendment is not grounded in expediency. The “knock and talk” exception requires that police officers begin their encounter at the front door, where they have an implied invitation to go. This exception does not license officers to bypass the front door and enter other parts of the curtilage based on where they park their cars. Because Carroll did not knock on the Carmans’ front door, but instead proceeded directly through the back of their property, his intrusion cannot be justified as a “knock and talk.” Accordingly, Carroll’s warrantless entry into the Carmans’ curtilage violated the Fourth Amendment as a matter of law.