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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)