Predawn (4 am in one case, 5:30 am in other) knock-and-talk was a trespass and violated social norms under Jardines. Implied license to enter the curtilage is time sensitive. People v. Frederick, 2017 Mich. LEXIS 1113 (June 1, 2017):
We believe, as the Supreme Court suggested in Jardines, that the scope of the implied license to approach a house and knock is time-sensitive. Id. at __; 133 S Ct at 1416 n 3; id. at __; 133 S Ct at 1422 (Alito, J., dissenting). Just as there is no implied license to bring a drug-sniffing dog to someone’s front porch, there is generally no implied license to knock at someone’s door in the middle of the night. See id. at __; 133 S Ct at 1416 (opinion of the Court) (“There is no customary invitation to do that.”). This custom was apparent to the investigating officers in this case. KANET officers testified candidly that it would be inappropriate for Girl Scouts or other visitors to knock on the door in the middle of the night, but evidently the officers believed that they were not bound by these customs. But a knock and talk is not considered a governmental intrusion precisely because its contours are defined by what anyone may do. King, 563 U.S. at 469 (“When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do.”). When the officers stray beyond what any private citizen might do, they have strayed beyond the bounds of a permissible knock and talk; in other words, the officers are trespassing. That is what happened here. The reasoning that leads us to conclude that these visits were outside the scope of the implied license is not nuanced or complicated. As the Jardines Court aptly explained, Girl Scouts and trick-or-treaters regularly manage to abide by the terms of the implied license. See Jardines, 569 U.S. at __; 133 S Ct at 1415 (“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.”). And, as any Girl Scout knows, the “background social norms that invite a visitor to the front door,” id. at __; 133 S Ct at 1416, typically do not extend to a visit in the middle of the night. See United States v Lundin, 817 F3d 1151, 1159 (CA 9, 2016) (“[U]nexpected visitors are customarily expected to knock on the front door of a home only during normal waking hours.”). Thus, we hold that the police were trespassing when they approached the defendants’ homes.