CA11: Ten officers for a “knock and talk” violated Jardines, but it wasn’t the cause of the search of the house

Ten officers approaching defendant’s house for a “knock-and-talk” violated Jardines, but that doesn’t matter because it didn’t lead to the discovery of evidence. Defendant didn’t see them, and he opened the door in response to the knock. Then the officer at the door saw drugs and paraphernalia right behind him. There was a protective sweep, but there was a search warrant based on the initial view, and that was an independent source. United States v. Maxi, 2018 U.S. App. LEXIS 8595 (11th Cir. Apr. 5, 2018):

No doubt, the officers here breached the curtilage of the duplex. There were approximately ten officers who ran to the duplex, many going through a gate in the fence, with four or five approaching the door and the rest taking up tactical positions around the exterior. Mr. Maxi did not give the officers an express license to come into his yard. And while the officers had a license “implied from the habits of the country,” id. at 8, 133 S. Ct. at 1415 (quotation omitted), to approach the front door and knock, they did much more than that. First, their physical intrusion was not “geographically limited to the front door or a ‘minor departure’ from it.” United States v. Walker, 799 F.3d 1361, 1363 (11th Cir. 2015) (per curiam) (quoting United States v. Taylor, 458 F.3d 1201, 1204-05 (11th Cir. 2006)). Officers testified they took up tactical positions not just at the front door but around the perimeter of the duplex. Second, the officers’ intent in approaching the duplex wasn’t that of an ordinary citizen. Detective Ogden testified: “We decided—or I decided that we should approach the residence with them there because I had a feeling that maybe they would alert the persons inside.” From the record before us, we do not doubt that the officers intended to secure the duplex and detain anyone they found inside, which is, of course, exactly what they did. That this encounter was not intended to be a casual, informational interview is also supported by the fact that at least one officer had his gun drawn and in a “low, ready position.” As in Jardines, there is no customary invitation to do that. See Jardines, 569 U.S. at 9, 133 S. Ct. at 1416.

Because their actions did not qualify as a “knock and talk,” the officers here did not have a license to enter the curtilage of the duplex. However, that is not the end of our inquiry. “The question whether the exclusionary rule’s remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” Illinois v. Gates, 462 U.S. 213, 223, 103 S. Ct. 2317, 2324, 76 L. Ed. 2d 527 (1983). In Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006), the Supreme Court held that exclusion of evidence was not required when police officers committed a Fourth Amendment violation by failing to “knock and announce” when executing a search warrant. Id. at 594, 126 S. Ct. at 2165. In that case, the Court noted that the constitutional violation was in the manner of entry, not in the entry itself. Id. at 588, 126 S. Ct. at 2162. The officers had a valid warrant but conceded they had not waited an appropriate amount of time after knocking before entering to conduct a search. Id. And the “illegal manner of entry was not a but-for cause of obtaining the evidence. Whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained,” and they would have discovered the inculpatory evidence inside. Id. at 592, 126 S. Ct. at 2164.

Here, the constitutional violations of the officers did not result in the production of evidence. As in Hudson, the violation was the manner in which the officers approached the house, not that they approached at all. If Detective Ogden had walked up the path to the door alone, knocked, and waited briefly to be received, he would have conducted a proper “knock and talk.” See Jardines, 569 U.S. at 8, 133 S. Ct. at 1415. There is no evidence to suggest that anything would have turned out differently if he had done so—Mr. Maxi opened the door almost immediately after Detective Ogden knocked and seemed entirely unaware of the scene developing outside. This is not to say, however, that “knock and talk” violations will never result in exclusion. For example, if Mr. Maxi opened the door because he saw a phalanx of officers descending on his location; if he did so as a result of a show of authority by the officers outside; or if he otherwise changed his behavior in response to a demand made by the officers, we would have a different case. Jardines makes clear that if officers had found evidence in the yard or peered through windows as they took up positions around the house, that evidence would be subject to exclusion. See id. at 9, 133 S. Ct. at 1416. But those are not our facts. Because the constitutional violations here did not produce the contested evidence, we conclude that exclusion is not the appropriate remedy. See Hudson, 547 U.S. at 592, 126 S. Ct. at 2164.

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