CA5: Knock-and-talk was actually an illegal entry, so consent was vitiated

The knock-and-talk in this case was a virtual entry without a warrant. Voluntariness of alleged consent was not the issue. Instead, the question was whether the alleged consent was an independent act of free will. Reversed. United States v. Hernandez, 392 Fed. Appx. 350 (5th Cir. 2010)*:

Our holding in Gomez-Moreno applies almost precisely to this case. The officers’ conduct during their knock-and-talk—banging on doors and windows while demanding entry, attempting a forced entry by breaking the glass on Hernandez’s door, then relying on her admission that an illegal alien was present as probable cause to enter—violated the Fourth Amendment.

The district court should have acknowledged that the officers’ knock-and-talk conduct was an unreasonable search. Had it done so, the court then would have proceeded not to the six-factor voluntariness analysis of Hernandez’s consent, but instead to the alternative analysis of whether her consent was an independent act of free will, breaking the chain of causation between the constitutional violation and the consent. United States v. Hernandez, 279 F.3d 302, 307 (5th Cir. 2002). Courts consider that question by weighing three factors: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct. Id.