Overnight guest with standing to challenge entry of house did not have standing to challenge entry into the backyard curtilage; knock-and-talk led to surrounding house and [police created] exigency

The E.D. Wis. holds that an overnight guest who otherwise had standing to challenge the search of the house [Olsen] did not have standing to challenge the entry of officers into the curtilage of the backyard during a knock-and-talk. [This was an extraordinary knock-and-talk:] The officers came to the house from all directions and surrounded it while investigating a heroin operation based on an informant seeing heroin on the premises in the extremely recent past. Somebody inside threw a bag of heroin out the window on the knock. That act created exigent circumstances for a warrantless entry based on reasonable suspicion of destruction of evidence. [The court fails to note police created exigency.] United States v. Butler, 2007 U.S. Dist. LEXIS 55907 (E.D. Wis. August 1, 2007):

Butler criticizes the recommendation and argues that the police were unreasonable in their “knock and talk” tactics because (1) they impermissibly and illegitimately entered the back area of the residence when they had no authority to do so, in order to detain persons found in the residence; and (2) they manufactured exigent circumstances and made a warrantless and illegitimate entry into the home. (Butler’s Obj. 5-7.) Over Butler’s objections, the court notes that the “knock and talk” form of investigation was reasonable, and the officers did not gain impermissible or illegitimate entry into the home as Butler suggests.

To begin, this circuit has noted that “knock and talks” are reasonable forms of police investigation, subject to certain constitutional limitations. Adeyeye, 359 at 461 (7th Cir. 2004) (approving of the “knock and talk” technique of investigation). The relevant preliminary Fourth Amendment inquiry for a “knock and talk” is whether a “reasonable person would feel free to terminate the encounter.” Id. at 462. Turning to the instant case, the court finds that it’s unlikely that the defendants would have felt free to terminate the encounter. The stipulated facts demonstrate that the officers came to the residence, surrounded the home, knocked on the doors, displayed their badges, and demanded that the occupants open the doors. (Stipulated Facts PP 3-4.) The officers’ actions, particularly the demand that the occupants open the door, lead the court to conclude that a reasonable person would, more than likely, not feel at liberty to terminate the encounter or request that the officers leave. Thus, the court finds that the conduct of the officers in this case “conveyed the message that compliance with their requests was required,” and therefore “transformed the situation from a consensual encounter into an investigatory stop.” See Adeyeye, 359 F.3d at 462 (citing United States v. Jerez, 108 F.3d 684 (7th Cir.1997)).

However, the constitutional inquiry does not end there; upon a determination that the individuals did not feel free to terminate the encounter, the court must next consider whether the officers had reasonable suspicion to conduct the “investigatory stop” or “knock and talk.” See Adeyeye, 359 F.3d at 462. “Reasonable suspicion” is “more than an inchoate and unparticularized suspicion or hunch,” and determining whether or not reasonable suspicion existed involves examining the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). The court once again turns to the stipulated facts and readily determines that there was reasonable suspicion for the officers to perform the “knock and talk” investigation. The facts state that the officers were investigating a tip, given that same day, that the persons in control of that residence were operating a heroin house. The informant gave facts that he or she personally observed large quantities of heroin within the home. (Stipulated Facts P 1.) These facts, viewed in totality, form an adequate finding of reasonable suspicion, and the court finds that the officers did not violate the Fourth Amendment in conducting the “knock and talk.”

Comment: Surrounding a house during a knock-and-talk is extraordinary and per se coercive, and the court correctly concludes that the persons inside would feel compelled to comply with any request for entry. The court fails, however, to decide that the act of the officers was a police-created exigency when the occupants threw the bag out the window in response. As for the destruction of evidence, how much heroin was in the sandwich bag tossed out the window compared to the whole amount allegedly inside, and did they have time to move that amount? What was the surveillance before the knock-and-talk? This case is just wrong to me, and it should be appealed and reversed.

Defense counsel was not ineffective for failing to move to suppress on the ground that the defendant’s stop was pretextual under Ladson. There was an objective basis for the stop, which was challenged, and the case was sufficiently like other cases finding no pretext that the court finds none. State v. Nichols, 161 Wn.2d 1, 162 P.3d 1122 (2007). Comment: This case summarizes Washington’s law on pretexual stops and searches, but finds the facts deficient.

Defendant had been held more than 48 hours before arraignment in apparent violation of Gerstein and County of Riverside but he had a full and fair opportunity to challenge that in state court and did and lost, so a federal court could not review it on habeas. Evans v. Booker, 2007 U.S. Dist. LEXIS 55735 (E.D. Mich. August 1, 2007).*