{"id":4605,"date":"2011-02-10T12:54:38","date_gmt":"2010-08-30T07:37:57","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-08-30T07:35:26","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=4605","title":{"rendered":"CA5: Knock-and-talk was actually an illegal entry, so consent was vitiated"},"content":{"rendered":"<p>The knock-and-talk in this case was a virtual entry without a warrant. Voluntariness of alleged consent was not the issue. Instead, the question was whether the alleged consent was an independent act of free will. Reversed. <a href=\"http:\/\/www.ca5.uscourts.gov\/opinions%5Cunpub%5C09\/09-40709.0.wpd.pdf\">United States v. Hernandez<\/a>, 392 Fed. Appx. 350 (5th Cir. 2010)*:<\/p>\n<blockquote><p>Our holding in <a href=\"http:\/\/scholar.google.com\/scholar_case?case=5589160479682231606&amp;q=479+F.3d+350&amp;hl=en&amp;as_sdt=1002\">Gomez-Moreno<\/a> applies almost precisely to this case. The officers&#8217; conduct during their knock-and-talk\u2014banging on doors and windows while demanding entry, attempting a forced entry by breaking the glass on Hernandez&#8217;s door, then relying on her admission that an illegal alien was present as probable cause to enter\u2014violated the Fourth Amendment.<\/p>\n<p>The district court should have acknowledged that the officers&#8217; knock-and-talk conduct was an unreasonable search. Had it done so, the court then would have proceeded not to the six-factor voluntariness analysis of Hernandez&#8217;s consent, but instead to the alternative analysis of whether her consent was an independent act of free will, breaking the chain of causation between the constitutional violation and the consent. <a href=\"http:\/\/scholar.google.com\/scholar_case?case=10226511726934038595&amp;q=279+F.3d+302&amp;hl=en&amp;as_sdt=1002\">United States v. Hernandez<\/a>, 279 F.3d 302, 307 (5th Cir. 2002). Courts consider that question by weighing three factors: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct. Id.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"<p>b2evALnk.b2WPAutP <a class=\"more-link\" href=\"https:\/\/fourthamendment.com\/?p=4605\">Continue reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-4605","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4605","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4605"}],"version-history":[{"count":0,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4605\/revisions"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4605"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4605"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4605"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}