CA1: 5 am knock-and-talk violated Jardines

5 am knock-and-talk with repeated entries to the property and entreaties to get plaintiff to come out of the house violated the clearly established law of Jardines. French v. Merrill, 2021 U.S. App. LEXIS 29679 (1st Cir. Oct. 1, 2021):

Officers Morse and Gray arrived at French’s home shortly before 5:00 a.m. They observed lights on in the home and decided to conduct a “knock and talk” rather than immediately apply for a warrant. The officers entered the property, walked onto the front porch, knocked on the front door, and announced that they were police officers seeking to speak with French. No one answered and the officers left the property. At this point, there was nothing constitutionally infirm about the officers’ conduct, which was expressly permitted by the “knock and talk” exception to the warrant requirement. Morse and Gray initially did no more than a member of the public might be expected to do — enter the curtilage, knock on the front door seeking to speak with an occupant, wait to be received and, receiving no response, leave. See id. at 9-10. Because this behavior was consistent with the conduct permitted by the implied social license, the officers’ initial entry onto the curtilage was lawful. Thus, we focus our clearly established law analysis on the conduct of the officers in the wake of that first lawful entry onto the curtilage, and consider it in totality. It is that conduct in the aggregate that requires the conclusion that the officers violated clearly established law.

After the initial attempted knock and talk, Officers Morse and Gray left the property. Morse went to speak with Nardone, and Gray stayed near French’s home to surveil the property. While watching the property, Gray walked onto the neighbor’s adjacent driveway, which provided an unobstructed view of the narrow strip of grass, the bedroom window, and the cellar window of French’s home. From there, Gray observed a young man peering out the basement window. Then, still standing on the neighbor’s driveway, Gray shined his flashlight through the window, which caused the young man to cover the window and turn off the basement lights. Gray then returned to the front porch of French’s building and again knocked on the front door, but no one answered. The knocking apparently caused a dog in the home “to bark frantically.” At that point, Gray’s incident report recounts that “still no one came to the door. More lights were quickly being turned off in the residence. Window coverings which looked like blankets were drawn over the open windows as well.”

Morse then returned from Nardone’s apartment and, along with the two Old Town police officers (Detective Fearon and Officer Orr), joined Gray off the property but near French’s building. Instead of honoring the clear signals that the occupants of the home did not wish to receive visitors, Morse walked back onto the property and, peering through a drawn window covering, saw that a light remained on in the kitchen. Morse then rejoined the other officers and told them that he would return to the station to apply for a search warrant. Fearon suggested that the officers attempt another “knock and talk,” to which Morse responded that he and Officer Gray “had already knocked” and that “[he] didn’t think that . . . French would respond.” See Affidavit of Travis Morse, Dkt. No. 35-22.

Ignoring Morse’s hesitation and suggestion that the officers should apply for a search warrant, the officers persisted in their efforts to get French to come out of his home. This time, Fearon and Morse went to the left side of the house, walked through the curtilage along the narrow strip of grass and located what they had reason to believe was French’s bedroom window. They knocked forcefully on the window frame and yelled for French to come out and talk. Fearon also shined his light into the bedroom. At the same time, Officer Gray returned to the front porch, knocked on the front door, and told French to come outside.

The simultaneous knocking apparently caused the dog inside the home to start barking loudly again. At some point, Andrews finally answered the front door and, after a brief discussion with Gray, agreed to look for French. According to French’s affidavit, Andrews decided to answer the door because he was afraid that the police would break the door down, which would cause his dog to become defensive and could result in the police shooting the dog. A short while later, French, feeling as though he “had no choice,” came to the door.

By the time French came to the door, the officers had entered his property four times. The first entry occurred when Morse and Gray initially approached French’s residence by the front path, knocked on the front door, and asked French to come to the door. The second occurred when Gray, after he shined his flashlight through the basement window from the neighbor’s driveway and saw a young man looking out, again approached the home by the front path, knocked on the front door, and asked French to come to the door. This second entry caused the occupants of the home to quickly turn off lights and cover windows. The third entry involved only Officer Morse when, after returning from Nardone’s residence, he reentered the property, peered through a drawn window covering, and saw a light on in the kitchen. Morse then rejoined the other officers and recommended applying for a warrant, but Detective Fearon suggested that they try again. On the fourth entry, Morse and Fearon walked through the curtilage of French’s home, located his bedroom window, knocked on the window frame, and asked him to come out, while Gray reentered the property by the front path, knocked on the front door, and asked French to come to the door.

2.Violating Clearly Established Law

While the officers’ conduct does not involve the gathering of evidence from the curtilage of French’s home with the help of a dog, it does plainly demonstrate that, if we consider their actions as a whole, they exceeded the scope of the implicit social license that authorized their presence on French’s property. Despite obvious signs that the occupants of the home were aware of and did not want to receive visitors — their refusal to answer the door upon Morse and Gray’s initial knock and Gray’s second knock, and their swift covering of windows and turning off lights in response to that second knock — the police doubled down on their efforts to coax French out of the home. Any reasonable officer would have understood that their actions on the curtilage of French’s property exceeded the limited scope of the customary social license to “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Jardines, 569 U.S. at 8. Indeed, Officer Morse revealed such an understanding when he observed that French was not likely to come to the door upon another attempt and that the officers should secure a warrant. Yet, the officers disregarded Morse’s advice and reentered the curtilage without a warrant.

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