D.Conn.: Def didn’t consent; in police photographs “Her jaw is slack and her eyes are wide open in a classic ‘deer-in-the-headlights’ pose. In the Court’s view, she appears frightened and overwhelmed.”

The government didn’t get consent to enter. The officers pounded on the door and entry was by acquiescence. The defendant was photographed. “In both photographs, she is wearing a sheer nightgown. Her jaw is slack and her eyes are wide open in a classic ‘deer-in-the-headlights’ pose. In the Court’s view, she appears frightened and overwhelmed.” United States v. Marchi, 2018 U.S. Dist. LEXIS 46616 (D. Conn. Mar. 21, 2018):

The Government introduced into evidence two photographs of Ms. Gumbs and her son sitting on the bed in the Apartment while the Agents were present. Ms. Gumbs is looking up at and listening to Officer Pereira as he stands over her speaking and gesturing in an authoritative manner. See [Gov. Ex. 8 at USAO 2907-08]. In both photographs, she is wearing a sheer nightgown. Her jaw is slack and her eyes are wide open in a classic “deer-in-the-headlights” pose. In the Court’s view, she appears frightened and overwhelmed.

There is no evidence on the time that elapsed between Ms. Gumbs’s first encounter with the Agents and the time she signed the Consent to Search Form, but the entire encounter lasted approximately one hour. The Search occurred and the Agents located the firearm, which is the subject of this motion. During the encounter, Ms. Gumbs also made statements to the Agents, none of which appear to be inculpatory.

. . .

B. Right to Be on Premises and Consent

1. The Agents Exceeded Their Right to be on Premises

The Government states the Agents’ intent was to secure the evidence and scene and to conduct a “knock and talk” with Mr. Marchi, during which they would confront him with the evidence against him in hopes he would concede his guilt and cooperate with the investigation. The “knock and talk” exception to the warrant requirement permits law enforcement officers to “encroach upon the curtilage of a home for the purpose of asking questions of the occupants.” United States v. Hammett, 236 F.3d 1054, 1059 (9th Cir. 2001), implied overruling on other grounds by United States v. Perea-Rey, 680 F.3d 1179 (9th Cir. 2012); see United States v. Allen, 813 F.3d 76, 87 (2d Cir. 2016) (recognizing the “knock and talk” tactic); United States v. Lucas, 462 F. App’x 48, 50-51 (2d Cir. 2012) (same).

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. Florida v. Jardines, 569 U.S. 1, 8, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013) (citation omitted). The scope of the exception is coterminous with this implicit license. Id. 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)). 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. Notably, “[a]n 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.” United States v. Lundin, 817 F.3d 1151, 1160 (9th Cir. 2016). That is not what happened here. The Agents did not linger briefly. They knocked on the Vestibule Door incessantly for several minutes and continued knocking until Ms. Gumbs responded. Their incessant knocking prompted Ms. Gumbs to come downstairs in her nightgown to answer the door.

Here, the Agents came beyond the yard, through the first door that was unlocked onto the covered porch, and banged on the door repeatedly by their own admission for several minutes. They impressed upon Ms. Gumbs such a sense of urgency that she responded wearing only a sheer nightgown without taking the time to get dressed. Thereafter, they mounted the stairs uninvited and entered her apartment en masse, forcing Ms. Gumbs to retreat.

2. The Agents Did Not Receive Consent to Enter the Apartment

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