CA5: 2 am knock-and-talk that led to alleged consent and excessive force claim gets no QI

2 a.m. knock and talk may have been unreasonable, and summary judgment for officers is reversed. Plaintiff closed her door and they insisted upon entry. The officers were investigating whether plaintiff’s son committed trespass that night. Plaintiff also stated a claim for excessive force for their actions when she questioned why they were there. Westfall v. Luna, 2018 U.S. App. LEXIS 25967 (5th Cir. Sep. 13, 2018):

Fact issues remain, however, as to whether a reasonable officer could conclude that they were performing a duty or exercising lawful authority when they searched Westfall’s home. The basis for consent argued by Defendants and found by the district court was Westfall’s instruction to her son to “go get” the marijuana, after Anderson asked Monte for one of the boys to take the officers upstairs, and Monte’s act of “leading” Anderson into the house. Two issues remain regarding this consent: (1) whether a reasonable officer could conclude that the “knock and talk” nature of the encounter did not affect the consent that was allegedly given; and (2) whether a reasonable officer could conclude that any consent that was given was not revoked.

The “knock and talk” nature of the officers’ initial interaction with Westfall puts into question their ability to have obtained valid consent. We have recognized the knock-and-talk strategy as “a reasonable investigative tool when officers seek to gain an occupant’s consent to search or when officers reasonably suspect criminal activity.” United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001). We have held, however, that “[t]he purpose of a ‘knock and talk’ is not to create a show of force, nor to make demands on occupants, nor to raid a residence. Instead, the purpose … is to make investigatory inquiry or, if officers reasonably suspect criminal activity, to gain the occupants’ consent to search.” United States v. Gomez-Moreno, 479 F.3d 350, 355 (5th Cir. 2007), overruled on other grounds by Kentucky v. King, 563 U.S. 452, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011). When no one answers the door despite knocking, “officers should … end[] the ‘knock and talk’ and change[] their strategy by retreating cautiously, seeking a search warrant, or conducting further surveillance.” Id. at 356. Where officers continue an illegal search or seizure, any consent given after that fact is invalid, unless it was an independent act of free will. Id. at 357. This law was clearly established at the time of the officers’ search of Westfall’s home.

The officers’ knock-and-talk conduct here, given the fact that they went to her home at 2:00 a.m., continued to knock on Westfall’s door after she closed it, called her home repeatedly, looked through the windows of her home, and walked around her property, even after she closed the door, may have been an unreasonable search that rendered any subsequent consent invalid. See, e.g., United States v. Hernandez, 392 F. App’x 350, 351-53 (5th Cir. 2010) (holding that “[t]he district court should have acknowledged that the officers’ knock-and-talk conduct was an unreasonable search” and that there was no valid consent where the woman who allegedly gave consent did not initially answer the door, and the officers then circled her trailer, banged on doors and windows, shouted that they were present, and broke the glass pane of her door before she answered it). If the district court determines that the officers’ search was unreasonable for this reason, it would then need to consider whether Westfall’s alleged consent was an independent act of free will. See, e.g., United States v. Hernandez, 279 F.3d 302, 307 (5th Cir. 2002) (outlining the three-factor test). The district court did not consider this argument and should do so on remand.