Sending the SWAT team to surround a house for a knock-and-talk violated the Fourth Amendment. Having officers in the backyard for officer safety may serve that function, but it’s still a violation of the curtilage under the Fourth Amendment. There is no case like this, but the primacy of protection of the home is clearly established, and this still violates clearly established law. Morgan v. Fairfield County, 2018 U.S. App. LEXIS 25293 (6th Cir. Sep. 6, 2018):
The county mistakenly focuses its application of the Dunn analysis on the backyard balcony itself, arguing that there is no search because the balcony was not part of the curtilage. But even if the county were correct that a backyard, second-story balcony with no outside access was not part of the curtilage, it would make no difference here, because the balcony is not what is at issue. The curtilage that the officers are said to have entered is the area surrounding the house, five-to-seven feet from the residence. Regarding that area, the county argues only two points—first that the immediate perimeter surrounding the house was not part of the curtilage because there was no fence enclosing the rear or perimeter of the house and, second, that area was not part of the curtilage because Morgan and Graf had neighbors. Those arguments are belied, however, by Dunn and Jardines and the “relatively unambiguous” conclusion this court came to 20 years ago in Daughenbaugh.
Because the area surrounding Morgan’s and Graf’s house was curtilage, and curtilage is treated as part of the home for Fourth Amendment purposes, the officers’ entry onto the curtilage could be justified only by a warrant or one of the recognized exceptions to the warrant requirement. It is undisputed that the SCRAP unit had no warrant. As for exceptions to the warrant requirement, the county argues that the entry was justified for three reasons. None, however, is convincing.
First, the county argues that forming a perimeter was not unconstitutional because the officers were protecting their own safety. To be sure, officer safety can be an exigency justifying warrantless entry. But “[q]ualification for this exception is not easy” and requires a particularized showing of a risk of immediate harm. United States v. Purcell, 526 F.3d 953, 960 (6th Cir. 2008). The only particularized facts that the county offers here are a contested fact, i.e., that Morgan was in a motorcycle gang, and a fact with no citation to the record, i.e., that Morgan may have had a weapon. Without more, the county cannot show “the need for prompt action by government personnel” required to conclude that delay to obtain a warrant “would be unacceptable under the circumstances.” Id. (quoting United States v. Rohrig, 98 F.3d 1506, 1517 (6th Cir. 1996)).
Instead of showing a particular and immediate risk, the county argues that concern for officer safety generally allows police to enter the curtilage and form a perimeter. Yet rather than citing a case supporting that position, the county argues that drugs and guns often go together. Maybe. But that is no more than a general statement of correlation; and generic possibilities of danger cannot overcome the required particularized showing of a risk of immediate harm. See id. at 961. But, even if the officers knew that Morgan had a weapon, “[t]he mere presence of firearms does not create exigent circumstances.” United States v. Johnson, 22 F.3d 674, 680 (6th Cir. 1994).
What is more, the county’s position would create an exception that would swallow the rule. It might be safer for the police to enter the curtilage to form a perimeter; it would certainly be easier to stop someone who might flee by establishing some sort of barrier to that flight. Indeed, many (if not most) Fourth Amendment violations would benefit the police in some way: It could be safer for police without a warrant to kick in the door in the middle of the night rather than ring the doorbell during the day, and peering through everyone’s windows might be a more effective way to find out who is cooking methamphetamine (or engaging in any illegal behavior, for that matter). But the Bill of Rights exists to protect people from the power of the government, not to aid the government. Adopting defendants’ position would turn that principle on its head.
Next, the county argues that the officers’ presence in the backyard was not a search because they were not there for the purpose of executing a search. Jardines forecloses that argument. The subjective intent of officers is irrelevant if a search is otherwise objectively reasonable, but subjective intent cannot make reasonable an otherwise unreasonable intrusion onto a constitutionally protected area. See Jardines, 569 U.S. at 10. Notably, the county does not attempt to distinguish Jardines—in fact it fails to cite it altogether.
Finally, the county argues that the marijuana plants were discovered in plain view. It is a long-standing rule that police do not conduct a search under the Fourth Amendment by seeing something that is in plain view. After all, the Fourth Amendment does not require police to “shield their eyes when passing by a home on public thoroughfares.” Ciraolo, 476 U.S. at 213. The plain-view exception, however, applies only when “the officer did not violate the Fourth Amendment in arriving at the place where the evidence could be plainly viewed.” United States v. Taylor, 248 F.3d 506, 512 (6th Cir. 2001). As explained above, the SCRAP unit discovered the marijuana only after entering Morgan’s and Graf’s constitutionally protected curtilage. The plain-view exception does not apply.
The SCRAP unit was concerned about general drug activity at Morgan’s and Graf’s house. But the Fourth Amendment prohibited them from entering the property: they had no warrant, no exigent circumstances, and no other exception to the warrant requirement. A ‘knock and talk’ by police was permitted “precisely because that is ‘no more than any private citizen might do.'” Jardines, 569 U.S. at 8 (quoting Kentucky v. King, 563 U.S. 452, 469 (2011)). Thus, the officers’ right to enter the property like any other visitor comes with the same limits of that “traditional invitation”: “typically … approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Id. Certainly, “[a] visitor cannot traipse through the garden, meander into the backyard, or take other circuitous detours that veer from the pathway that a visitor would customarily use.” Id. at 19 (Alito, J., dissenting). Neither can the police. By doing so here, the SCRAP unit violated Morgan’s and Graf’s Fourth Amendment rights.
