A 6 am knock-and-talk was not shown to be unreasonable [on the totality] under Jardines. Defendant doesn’t claim that he was too sleepy to respond to them. United States v. Ofsink, 2021 U.S. Dist. LEXIS 24933 (E.D. N.Y. Feb. 8, 2021):
The Magistrate Judge specifically found, based on the testimony of the witnesses, that the Agents’ movement of their car was not aggressive, but rather slow and non-threatening. There is no testimony that the driveway was blocked to the extent that Defendant was prevented from leaving or that the Agents had any such intent. The Report notes that the driveway was two-cars in width and that the Agents’ car only partially blocked it. Report at 5. Although the testimony is clear that the Agents moved the car before Defendant took his son to school, there is no evidence that he would not have been able to leave had they not taken that action. It cannot be said that, as a matter of law, an “ordinary visitor” would not park in such a way to temporarily obstruct part of the driveway.
He focuses the bulk of his argument on the time of day, relying upon the Supreme Court’s observation in Jardines, noted in dicta in both the majority and dissenting opinions, that a “middle of the night” visit would be a cause for great alarm to a typical person. Jardines, 569 U.S. at 9, n.3; id. at 20 (Alito, J. concurring). Defendant contends that “ordinary visitors” do not arrive at 6:00 a.m. In support, he states that the facts of his case “closely resemble” those present in a state case in Michigan. See Def. Obj. at 21 (citing People v. Frederick, 500 Mich. 228, 895 N.W.2d 541 (2017). In Frederick, the searches at two homes were conducted at 4:00 a.m. and 5:30 a.m., and there was testimony that at both locations, everyone appeared to be asleep. A defendant at each home answered the door after a few minutes, thinking there was an emergency, and was confronted by seven police officers. Here, the Agents arrived at 6:00 a.m. when it was already light outside. Detective Fandrey testified that they arrived at the Residence in the hopes of speaking with Defendant before he left for work. They did not knock on the door or disturb other occupants at the Residence who may, or may not, have been sleeping. They stayed in their vehicle and only moved it and emerged to speak with Defendant after he had opened his garage door and exited his house. There was no testimony to suggest that Defendant was drowsy, or that he had just awakened; to the contrary, he was awake and alert enough to drive his son to school. Any “surprise” or “alarm” caused by the timing of the Agents’ arrival would have dissipated by the time he returned from the drive to school and voluntarily continued the conversation. Additionally, he could have retreated into his home at any time and terminated the conversation.
Upon de novo review, and finding no constitutional infirmity in the knock-and-talk procedure employed here, Defendant’s objection on this basis is overruled, and the Report is adopted.
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)