CA9: 4 am knock-and-talk violated implied license of Jardines

Officers came to defendant’s house at 4 am for a knock-and-talk to arrest him. They heard a crashing noise in the backyard and found defendant there. The subsequent search of defendant’s house was presumptively unreasonable and without any lawful justification. United States v. Lundin, 2016 U.S. App. LEXIS 5236 (9th Cir. March 22, 2016):

The government contends that the officers were permitted to knock on Lundin’s door under the so-called “knock and talk” exception to the warrant requirement, which permits law enforcement officers to “‘encroach upon the curtilage of a home for the purpose of asking questions of the occupants.’” Perea-Rey, 680 F.3d at 1187 (quoting United States v. Hammett, 236 F.3d 1054, 1059 (9th Cir. 2001)). The “knock and talk” exception resembles to some degree the exception for consensual searches. The relevant “consent” in a “knock and talk” case is implied from the custom of treating the “knocker on the front door” as an invitation (i.e., license) to approach the home and knock. Jardines, 133 S. Ct. at 1415 (citation omitted). The scope of the exception is coterminous with this implicit license. Stated otherwise, to qualify for the exception, the government must demonstrate that the officers conformed to “‘the habits of the country,’” id. (quoting McKee v. Gratz, 260 U.S. 127, 136, 43 S. Ct. 16, 67 L. Ed. 167 (1922) (Holmes, J.)), by doing “‘no more than any private citizen might do,’” id. at 1416 (quoting King, 563 U.S. at 469). In the typical case, if the police do not have a warrant they may “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. For two reasons, we agree with the district court that the officers exceeded the scope of the customary license to approach a home and knock.

First, unexpected visitors are customarily expected to knock on the front door of a home only during normal waking hours. This does not mean that the “knock and talk” exception never applies when officers knock on the door of a home in the early morning. In some circumstances, an early morning visit may be “consistent with an attempt to initiate consensual contact with the occupants of the home.” Perea-Rey, 680 F.3d at 1188. For example, officers may have reason to believe that the resident in question generally expects strangers on his porch early in the morning — perhaps he sells fresh croissants out of his home. Or the officers may have a reason for knocking that a resident would ordinarily regard as important enough to warrant an early morning disturbance — perhaps a fox has gotten into the resident’s henhouse. Here, however, the officers knocked on Lundin’s door around 4:00 a.m. without evidence that Lundin generally accepted visitors at that hour, and without a reason for knocking that a resident would ordinarily accept as sufficiently weighty to justify the disturbance. Indeed, the officers here acted for a purpose that virtually no resident would willingly accept.

Second, the scope of a license is often limited to a specific purpose, Jardines, 133 S. Ct. at 1416, and the customary license to approach a home and knock is generally limited to the “purpose of asking questions of the occupants,” Perea-Rey, 680 F.3d at 1187 (citation omitted). Officers who knock on the door of a home for other purposes generally exceed the scope of the customary license and therefore do not qualify for the “knock and talk” exception.

“Reasonableness” under the Fourth Amendment “is predominantly an objective inquiry.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 2080 (2011) (citation omitted). A court’s task is usually to determine only “whether the circumstances, viewed objectively, justify [the challenged] action.” Id. (alteration in original) (citation omitted). However, the Supreme Court has recognized several “limited exception[s]” to this general rule, where “actual motivations” matter. Id. (alteration in original) (citation omitted). For example, police do not need a judicial warrant or probable cause to conduct a search or seizure that is justified by “special needs,” see, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 665, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995) (deterring drug use in public schools), or to conduct an administrative inspection, see, e.g., Michigan v. Clifford, 464 U.S. 287, 294, 104 S. Ct. 641, 78 L. Ed. 2d 477 (1984) (authorizing fire inspection).

Before Jardines, it was not clear whether the proper application of the “knock and talk” exception is an entirely objective inquiry, or whether, as in special-needs-search and administrative-inspection cases, the actual motivation of the officers matters. The Court answered the question in Jardines, explaining that the scope of the license to approach a home and knock “is limited not only to a particular area but also to a specific purpose.” 133 S. Ct. at 1416 (emphasis added). That is, the application of the “knock and talk” exception ultimately “depends upon whether the officers ha[ve] an implied license to enter the [curtilage], which in turn depends upon the purpose for which they enter[].” Id. at 1417 (emphasis added). After Jardines, it is clear that, like the special-needs and administrative-inspection exceptions, the “knock and talk” exception depends at least in part on an officer’s subjective intent.

The “knock and talk” exception to the warrant requirement does not apply when officers encroach upon the curtilage of a home with the intent to arrest the occupant. Just as “the background social norms that invite a visitor to the front door do not invite him there to conduct a search,” id. at 1416, those norms also do not invite a visitor there to arrest the occupant. We do not hold that an officer may never conduct a “knock and talk” when he or she has probable cause to arrest a resident but does not have an arrest warrant. An officer does not violate the Fourth Amendment by approaching a home at a reasonable hour and knocking on the front door with the intent merely to ask the resident questions, even if the officer has probable cause to arrest the resident.

This entry was posted in Curtilage, Knock and talk, Nighttime search. Bookmark the permalink.

Comments are closed.