CA11: Officers investigating child porn by knock-and-talk entered for welfare check; subsequent entry was by consent and attenuated

Officers received a tip that defendant, a pharmacist, had child pornography on a computer. They investigated as best they could and found no support for it. A year later, officers came to his house and, after knocking for several minutes did not bring him to the door, they supposedly feared that he could be ill or worse. Their knocking woke his next door neighbor. Officers entered through a partially open and unlocked sliding glass door and heard moaning. With guns drawn they found defendant nude on an air mattress and unarmed. He said he would talk to them after he got dressed and he’d meet them outside. They went back outside, and he came outside. They never looked at or touched anything. By this time, a child pornography investigator was at the house. Defendant agreed to an entry, and it was admittedly by consent. The court found the second entry was attenuated from the initial entry, valid or not. This was a classic knock-and-talk. United States v. Smith, 688 F.3d 730 (11th Cir. 2012):

In undertaking this [Herring exclusionary rule] analysis, “[w]e are obliged to determine whether the consent was ‘sufficiently an act of free will to purge the primary taint of the unlawful invasion,’ or, alternatively, whether the causal connection had ‘become so attenuated as to dissipate the taint.'” Delancy, 502 F.3d at 1309 (quoting Wong Sun, 371 U.S. at 486-87, 83 S. Ct. at 416-17). This inquiry requires that we review carefully the facts and circumstances of each case. Although no single factor is dispositive, we have identified previously three helpful factors in framing the analysis: (1) the temporal proximity of the illegal act and the subsequent consent, (2) the intervening circumstances and (3) the purpose and flagrancy of the officers’ misconduct. Id. These factors “are not meant to be exhaustive.” Id. The underlying question “involves a pragmatic evaluation of the extent to which the illegal police conduct caused the defendant’s response.” Id. at 1310 (internal quotation marks omitted).

We turn first to the time that elapsed between the officers’ entry and Mr. Smith’s consent. Our case law reflects the commonsense principle that the more time that has elapsed between the illegal act and the defendant’s consent, the more likely it is that the defendant’s consent was untainted. Id. …