E.D.N.Y.: 6 am knock-and-talk was not unreasonable

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.