N.D.Cal.: 4 a.m. knock-and-talk violated the implied license of curtilage

A 4 a.m. knock-and-talk violated the implied license of curtilage, even though the officers did not identify themselves as officers at first. [Excellent discussion of Jardines curtilage and implied license to a 4 a.m. visit by anybody.] United States v. Lundin, 2014 U.S. Dist. LEXIS 88058 (N.D. Cal. June 26, 2014):

3. Conclusion

Although the purpose and timing of the officers’ visit were both inconsistent with a “knock and talk,” there is some evidence that pushes the other way. For example, officers did not identify themselves as police, and did not “demand that the occupants open the door.” United States v. Winsor, 846 F.2d 1569, 1573, n. 3 (9th Cir. 1988) (en banc); see also Cormier, 220 F.3d at 1109 (holding a “knock and talk” reasonable because, inter alia, the officer “never announced that she was a police officer while knocking nor did she ever compel Cormier to open the door under the badge of authority,” and “[b]ecause there was no police demand to open the door”). The officers also only knocked twice, and were not “unreasonably persistent in … [their] attempt to obtain access to” the resident of the dwelling. Cormier, 220 F.3d at 1109 (citing U.S. v. Jerez, 108 F.3d 684, 691-92 (7th Cir. 1997)).

But while these facts might tip the balance in a closer case, here they are insufficient to render the officers’ 4:00 a.m. visit constitutional. By entering onto Lundin’s curtilage at four in the morning for the purpose of locating him to arrest him, the officers engaged not in a lawful “knock and talk” but rather in a presumptively unreasonable search. Since the government has not demonstrated that any exception to the warrant requirement applies, the search was unconstitutional.

For this reason, all evidence obtained in the April 23 search of Lundin’s backyard and home must be suppressed as the fruits of the unconstitutional approach onto Lundin’s curtilage. From the front porch, officers were able to hear the sounds of Lundin from within the building. The government has not met its burden to demonstrate that the officers could have heard those sounds from beyond Lundin’s curtilage. It was only by hearing those sounds that the officers were able to make any claim to lawfully obtaining the items within his home on April 23. With the exception of the “inevitable discovery” doctrine (which the court concludes at III-B-3, infra, does not apply), all of the officers’ arguments for the legality of the April 23 search stem from the noises the officers heard within. If the officers “gain entry to premises by means of an actual or threatened violation of the Fourth Amendment,” they cannot invoke the “exigent circumstances” doctrine. King, 131 S. Ct. at 1862. And the officers’ claim to have effected a lawful “protective sweep” requires them to detain Lundin, which they were only able to do because they were able to hear that he was in the backyard.

B. April 23 Search of Backyard and Home

Even if the approach to the front porch were constitutional, the court would still conclude that the items seized on April 23 must be suppressed because the officers’ later actions also violated the Fourth Amendment.

On April 23, the officers searched Lundin’s apartment, an interior hallway, and the enclosed back patio of the apartment, which was enclosed behind a high fence. Exh. A to Anderson Decl., at C009 (ECF No. 30-1); O’Donovan Decl. ¶¶ 8-10. The United States does not dispute that these areas are all either part of the home or its “curtilage,” and that officers may not search those areas without a warrant unless a recognized exception to the warrant requirement applies. See Sims v. Stanton, 706 F.3d 954, 959-60 (9th Cir. 2012), reversed on other grounds by Stanton v. Sims, ___ U.S. ___, 134 S. Ct. 3, 7 (2013). And the United States concedes that the officers lacked a warrant. But the government argues, in the alternative, that three different exceptions to the warrant requirement apply. The “burden of proving that a warrantless search or seizure falls within an exception to the warrant requirement is on the government.” Scott, 705 F.3d at 416. The court addresses each of the government’s arguments in turn.