Knock and Talks: Faithfully Applying Social Norms to Prevent Unconstitutional Police Intrusion upon the Home
A “knock and talk” is a common police practice involving an officer approaching a home and knocking on the front door to speak with a resident. The knock and talk is a long-recognized exception to the Fourth Amendment’s warrant requirement, making it a powerful police tool to access constitutionally protected areas of the home. But courts have struggled to define the limits of a knock and talk. For example, when police officers knock and receive no answer, can they remain standing at the door, or even roam to other parts of the home?
The Supreme Court grounds the practice in a recognized social license for any person to knock on someone else’s door. But the circuits have developed a chaotic body of rulings that are unmoored from this guiding principle, allowing police to impermissibly expand the scope and duration of knock and talks. This Comment argues that the circuits have expanded or restricted knock and talks in ways inconsistent with Supreme Court precedent, resulting in numerous splits. These splits can be harmonized with a renewed focus on the social license underlying the knock and talk. This would result in common-sense rules that allow police to conduct knock and talks without undermining the Fourth Amendment’s robust protection of the home.
- I. Introduction
- II. History: Knock and Talk Jurisprudence Before and Up to Jardines
- III. The Chaotic State of Current Knock and Talk Jurisprudence
- A. Disputes over Jardines’s Relevance
- B. Courts that View Jardines as Limiting the Knock and Talk to the Front Door
- C. Courts that Expand the Knock and Talk License to Cover the Curtilage Generally
- D. Courts Where Police Cannot Remain at the Door after No One Has Answered
- E. Courts That Are Permissive of Officers Remaining on the Curtilage after Receiving No Response
- IV. Bringing Knock and Talk Doctrine into Accordance with the Implied License
- A. The Location of the Knock and Talk Is Limited to Doorways Accessible to Visitors
- B. A Knock and Talk Cannot Be Extended Because Occupants Are Present
- C. The Knock and Talk Exception Extends to Entrances of the Home and No Further
- D. The Value of Using Bright-Line Rules Once Police Have Begun a Knock and Talk
- E. Restricting Unconstitutional Knock and Talks Will Vindicate the Property Rights of Residents
- V. Conclusion
I. Introduction
TOPUnder the Fourth Amendment, the home is protected as “first among equals.”1
Florida v. Jardines, 569 U.S. 1, 6 (2013).
Id. at 8 (quoting Entick v. Carrington (1765) 95 Eng. Rep. 807, 817).
The Fourth Amendment protects not just the interior of a house, but also its curtilage, defined as an area that harbors the “intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’”3
United States v. Dunn, 480 U.S. 294, 300 (1987) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).
Id.
480 U.S. 294 (1987).
Id. at 301.
Florida v. Jardines, 569 U.S. 1, 7 (2013).
Even though the home is a constitutionally protected area, the police have enjoyed a long-recognized ability to warrantlessly enter the curtilage of the home to conduct a “knock and talk,” where an officer will knock on the front door and request to speak with an occupant.8
See id. at 8–9.
See, e.g., United States v. Carloss, 818 F.3d 988 (10th Cir. 2016) (allowing admission of methamphetamine residue discovered inside house during consent search).
See, e.g., United States v. Jones, 239 F.3d 716 (5th Cir. 2001) (holding that there is no expectation of privacy concerning articles that can be seen in plain view by an officer when a defendant opens the door to respond to knocking).
Although state and federal courts had already recognized the knock and talk exception for decades, the Supreme Court did not weigh in on knock and talks until the relatively recent cases of Kentucky v. King11
563 U.S. 452 (2011).
569 U.S. 1 (2013).
Id. at 8.
See Carroll v. Carman, 574 U.S. 13, 20 (2014) (“We do not decide today . . . whether a police officer may conduct a ‘knock and talk’ at any entrance that is open to visitors rather than only the front door”).
The clarity of knock and talk guidelines is also important for the appropriate enforcement of Fourth Amendment rights. Often, the only remedy for a homeowner whose rights have been violated during a knock and talk is a 42 U.S.C. § 1983 claim (“Section 1983”).15
42 U.S.C. § 1983.
Id.
See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
See, e.g., United States v. Carloss, 818 F.3d 988 (10th Cir. 2016).
This Comment focuses on judicial attempts to define the physical and temporal scope of the knock and talk exception in relation to Jardines and argues that most circuits have adopted rules that cannot be justified under Fourth Amendment jurisprudence. Accordingly, this Comment proposes guidelines that would bring knock and talk practices in line with the social license that permits them. Part II provides a background of the general types of police behavior that have long been considered allowed by the knock and talk exception, as well as an overview of the Court’s landmark decision in Jardines. Part III examines the heavily fractured state of current knock and talk jurisprudence, with a particular focus on how courts have interpreted Jardinesand its discussion of the implied license to approach the home. Part III also identifies which circuits heavily constrain where police may go during a knock and talk, and which circuits allow police to intrude on the curtilage even after no one has answered the door. Part IV argues that under Jardines, the Fourth Amendment compels a set of limitations on the scope of knock and talks. Specifically, these limitations would require police to only conduct knock and talks at entrances to the home and forbid police from extending the duration of knock and talks without explicit invitation from an occupant. Part V concludes.
II. History: Knock and Talk Jurisprudence Before and Up to Jardines
TOPA. The Implied License and Knock and Talks Pre-Jardines
TOPThere has been a longstanding recognition of an implied license for people to approach a house and knock on the door.19
See Breard v. City of Alexandria, La., 341 U.S. 622, 626 (1951) (“the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers for all kinds of salable articles.”).
For a general overview see Fern Kletter, Annotation, Construction and Application of Rule Permitting Knock and Talk Visits Under Fourth Amendment and State Constitutions, 15 A.L.R.6th 515 (2006).
See, e.g., United States v. Perea-Rey, 680 F.3d 1179 (9th Cir. 2012).
See, e.g., Hardesty v. Hamburg Twp., 461 F.3d 646, 654 (6th Cir. 2006).
See, e.g., Edens v. Kennedy, 112 F. App’x 870 (4th Cir. 2004) (allowing knock and talk where police knocked at both the front and back door of a residence); United States v. Gomez-Moreno, 479 F.3d 350, 356 (5th Cir. 2007) (acknowledging that police may knock at back door if front door is not answered).
See, e.g., United States v. Ray, 199 F. Supp. 2d 1104 (D. Kan. 2002) (allowing police to conduct a knock and talk at 1:30 a.m. after receiving a tip that a trailer was a meth lab); Scott v. State, 366 Md. 121 (2001) (allowing a suspicionless knock and talk at motel room at 11:30 p.m.); United States v. Walker, 799 F.3d 1361, 1364 (11th Cir. 2015) (allowing a knock and talk at 5:04 a.m. because there were lights on, indicating someone was awake).
Courts have generally avoided saying what is necessary for a resident to revoke the implied license to approach the door. In many pre-Jardines cases, courts highlighted the lack of a “no trespassing” sign as additional confirmation that there was an implied license to conduct a knock and talk. However, even in cases where such a sign was posted on the property, courts have still found an implied license.
The first time that the Supreme Court considered the social license involved in a knock and talk was in Kentucky v. King.25
Kentucky v. King, 563 U.S. 452 (2011).
Id. at 456.
Id.
Id. at 469–70.
Id. at 470 (quoting United States v. Chambers, 395 F.3d 563, 577 (6th Cir. 2005) (Sutton, J., dissenting)).
B. The Decision in Jardines and the Revival of the Property-Based Understanding of the Fourth Amendment
TOPThe Supreme Court extensively discussed knock and talks for the first time in Florida v. Jardines.30
Florida v. Jardines, 569 U.S. 1 (2013).
Id. at 3–4.
Id.
Id.
Id. at 11–12.
See id. at 8–10.
Jardines, 569 U.S. at 8.
Id. at 9.
It is important to note that Justice Scalia’s opinion relies upon “the traditional property-based understanding of the Fourth Amendment.”38
Id. at 11.
See, e.g., Olmstead v. United States, 277 U.S 564 (1928) (holding that a wiretap without a warrant was admissible evidence because telephone wires outside of the home are not property protected under the Fourth Amendment), overruled by Katz v. United States, 389 U.S. 347 (1967)).
(1765) 95 Eng. Rep. 807.
Jardines, 569 U.S. at 8 (quoting Boyd v. United States, 116 U.S. 616, 626 (1886)).
Id. (quoting Entick, 95 Eng. Rep. at 817).
This understanding contrasts with the now common privacy-based understanding of the Fourth Amendment stated in Katz v. United States.43
389 U.S. 347 (1967).
Id. at 360 (Harlan, J., concurring).
Id. at 351.
Jardines, 569 U.S. at 11.
Id.
Id. (quoting United States v. Jones, 565 U.S. 400, 409 (2012)).
III. The Chaotic State of Current Knock and Talk Jurisprudence
TOPA. Disputes over Jardines’s Relevance
TOPAlthough Jardines discussed knock and talks at some length, it was not immediately clear whether the landscape of knock and talks had changed at all. The challenged behavior in the case was the use of a police dog to gather information. The officers in Jardines never even attempted a knock and talk. Many courts nevertheless read Jardines as redefining the scope of the knock and talk exception. The First Circuit, for example, reads Jardines as generally defining the scope of the implied social license to approach and knock on the house door, rather than applying to the specific context of a search for evidence using a police dog.49
See French v. Merrill, 15 F.4th 116, 131 (1st Cir. 2021), cert. denied, Morse v. French, 143 S.Ct. 301 (2022).
Id. at 134.
Id.
French v. Merrill, 24 F.4th 93, 94 (1st Cir. 2022) (denying rehearing en banc).
Judge Lynch of the First Circuit dissented from the majority’s interpretation of Jardines, saying that Jardines is inapplicable in the context of a knock and talk “where there was no police dog or any other instrumentality used.”53
French,15 F.4th 116 at 142 (Lynch, J., dissenting).
Id. at 143 (Lynch, J., dissenting).
818 F.3d 988 (10th Cir. 2016).
Id. at 992–93.
The Fifth Circuit has also analyzed a knock and talk outside of the context of Jardines. In Westfall v. Luna,57
No. 21-10159, 2022 WL 3334535 (5th Cir. 2022).
Id. at *1.
Id. at *7.
Id. at *4 (noting that police may attempt a second knock at a different entrance, but that if no one answers, police must change their strategy) (quoting United States v. Gomez-Moreno, 479 F.3d 350, 355–56 (5th Cir. 2007)).
Appellant’s Opening Brief at 30, Westfall v. Luna, No. 21-10159 (5th Cir. 2022).
The Eleventh Circuit takes a similar position to the First Circuit, arguing that Jardines is not limited to the specific facts of the case. Rather, “[Jardines] extends to any police intrusion onto curtilage that exceeds the customary license extended to all, whether measured by officers’ actions or their intent.”62
United States v. Maxi, 886 F.3d 1318, 1327 (11th Cir. 2018).
While the Supreme Court has not directly said how broadly Jardines must be read, multiple Justices recently asserted in a statement concerning the denial of certiorari that Jardines protects the curtilage from far more than police dogs. In Bovat v. Vermont,63
141 S.Ct 22 (2020).
See State v. Bovat, 211 Vt. 301, 309 (Vt. 2019).
Id. at 307–09.
Bovat v. Vermont, 141 S.Ct. at 23.
Id.at 24.
211 Vt. 301 (2019).
See State v. Calabrese, 268 A.3d 565, 577 (Vt. 2021).
Id.
B. Courts that View Jardines as Limiting the Knock and Talk to the Front Door
TOPThe Third Circuit attempted to address the new role of Jardines in Carman v. Carroll,71
749 F.3d 192 (3rd Cir. 2014).
Id. at 197.
Id. at 199.
Id.
Id.
Caroll v. Carman, 574 U.S. 13, 17–20 (2014) (“But whether or not the constitutional rule applied by the court below was correct, it was not ‘beyond debate.’”).
Id. at 20 (“We do not decide today . . . whether a police officer may conduct a ‘knock and talk’ at any entrance that is open to visitors rather than only the front door”).
The First Circuit also likely views Jardines as restricting police to approaches at the front door. In French v. Merrill,78
15 F.4th 116 (1st Cir. 2021).
Id. at 129.
Id.
Id.
Id. at 130.
In United States v. Wells,83
648 F.3d 671 (8th Cir. 2011).
Id. at 673.
Id.
Id. at 680.
C. Courts that Expand the Knock and Talk License to Cover the Curtilage Generally
TOPThe Fourth and Eleventh Circuits have held that the police may conduct knock and talks beyond the front door of the house and that the knock and talk exception even extends to circumstances where the police do not knock on a door.87
SeeCovey v. Assessor of Ohio Cnty., 777 F.3d 186 (4th Cir. 2015); see also United States v. Walker, 799 F.3d 1361 (11th Cir. 2015).
In United States v. Walker,88
799 F.3d.
Id.
Id. at 1362–63.
Id.
Id. at 1363.
Id. at 1363.
Id. at 1364.
See United States v. Taylor, 458 F.3d 1201, 1205 (11th Cir. 2006).
In the Fourth Circuit’s view, “although the knock-and-talk doctrine is sometimes framed as a right to approach the home by the front path or knock on a front door . . . we have made clear that the implicit license is broader than that.”96
United States v. Miller, 809 F. App’x 131, 138 (4th Cir. 2020) (internal quotation marks omitted).
777 F.3d 186 (4th Cir. 2015).
Id. at 190.
Id.
Id. at 193.
Id.
Id.(citing Pena v. Porter, 316 Fed.Appx. 303, 313 (4th Cir.2009)).
See Alvarez v. Montgomery Cnty., 147 F.3d 354, 359 (4th Cir. 1998) (“[I]n light of the sign reading ‘Party In Back’ with an arrow pointing toward the backyard, it surely was reasonable for the officers to proceed there directly as part of their effort to speak with the party’s host.”).
United States v. Miller, 809 F. App’x 131 (4th Cir. 2020).
D. Courts Where Police Cannot Remain at the Door after No One Has Answered
TOPBefore Jardines, the Sixth Circuit had held that officers could take reasonable steps to attempt to speak with an occupant when “circumstances indicate that someone is home” and the officer’s knocking produced no response.105
SeeHardesty v. Hamburg Twp., 461 F.3d 646, 654 (6th Cir. 2006).
See Brennan v. Dawson, 752 F. App’x 276, 283 (6th Cir. 2018).
Id. (quoting Morgan v. Fairfield Cnty., Ohio, 903 F.3d 553, 565 (6th Cir. 2018)).
The First Circuit similarly maintains that if an occupant does not come to the door, the police cannot persist in attempting additional knock and talks. In French v. Merrill,108
15 F.4th 116 (1st Cir. 2021).
Id.
Id. at 131 (quoting Hopkins v. Bonvicino, 573 F.3d 752, 765 (9th Cir. 2009)).
E. Courts That Are Permissive of Officers Remaining on the Curtilage after Receiving No Response
TOPIn multiple pre-Jardines case, the Fifth Circuit held that when nobody answers the door, officers must end a knock and talk and pursue different strategies.111
See United States v. Gomez-Moreno, 479 F.3d 350, 356 (5th Cir. 2007); United States v. Troop, 514 F.3d 405, 410 (5th Cir. 2008).
Gomez-Moreno, 479 F.3d at 356.
Troop, 514 F.3d at 411.
See United States v. Flores, 799 F. App’x 282 (5th Cir. 2020).
In United States v. Carloss,115
818 F.3d 988 (10th Cir. 2016).
Id. at 994.
Id. at 998.
Id. at 998.
IV. Bringing Knock and Talk Doctrine into Accordance with the Implied License
TOPThe Supreme Court’s jurisprudence requires the conclusion that warrantless police activity within the curtilage after a knock and talk fails violates the Fourth Amendment. The social license of a knock and talk is merely a license to approach the home and knock, not a general license to speak with the occupants of the home. Once a knock and talk goes unanswered, the implied license has run its course. A police officer’s mere desire to speak to an occupant should not be used to expand or extend the license beyond what existed the moment the officer approached the home. This means that if the initial knock and talk fails, the officer cannot continue knocking or try knocking in new locations.
A. The Location of the Knock and Talk Is Limited to Doorways Accessible to Visitors
TOPWhen Justice Scalia described the license underlying the knock and talk, he noted that the license arises from “the knocker on the front door.”119
Florida v. Jardines, 569 U.S. 1, 8 (2013).
Id.
See Carman v. Carroll, 749 F.3d 192, 199 (3rd Cir. 2014).
Courts are rightfully concerned that police would use a flexible standard to bypass the front door and instead search for a door that offers greater access to otherwise private areas of the home.122
See, e.g., United States v. Wells, 648 F.3d 671 (8th Cir. 2011) (where officers entered the backyard to search for drug manufacturing operations instead of knocking on accessible front door).
Jardines, 569 U.S. at 8.
B. A Knock and Talk Cannot Be Extended Because Occupants Are Present
TOPAn important question to resolve between the circuits is whether the police can extend a knock and talk when they believe that someone is present in the house. A faithful reading of Jardines, coupled with a general understanding of the implicit license at issue, requires the answer to be no. As Jardines reiterated, the source of the implied license for an officer to approach the door of a home and knock is the “knocker” on the door.124
Id.
Id. at 10.
Under this analysis, the Sixth Circuit is correct in maintaining that the police cannot linger at the front door simply because someone is inside.126
See Brennan v. Dawson, 752 F. App’x 276, 283 (6th Cir. 2018).
United States v. Carloss, 818 F.3d 988, 998 (10th Cir. 2016).
Jardines, 569 U.S. at 8.
Those in favor of allowing police to extend the duration of a knock and talk might argue that an occupant who refuses to answer the door to police is often attempting to hide, and police should not be forced to ignore suspicious behavior. Even so, to allow police to continue knocking when they believe someone is inside undermines the Court’s holding in King. In that case, the Court held that when police knock on a door, “the occupant has no obligation to open the door or to speak.”129
Kentucky v. King, 563 U.S. 452, 469–70 (2011).
Id. at 470 (quoting United States v. Chambers, 395 F.3d 563, 577 (6th Cir. 2005)).
Instead, the implicit license should only last for a short time after the first knock. Once it becomes clear that no one will respond, the police lose the license to remain on the curtilage and must leave. The police cannot linger on the curtilage or knock for minutes on end. While the sound of movement inside the home might be relevant because it could signify someone coming to the door, which would extend the license, someone answering the door would likely come shortly after hearing the knock. Accordingly, there is little benefit to allowing officers to spend an abnormal amount of time at the door because they suspect someone may be coming. Additionally, if an officer is truly interested in waiting to see if someone answers the door, the officer can always leave the curtilage and wait to see if someone comes to the door and provides consent for the police to reenter.
C. The Knock and Talk Exception Extends to Entrances of the Home and No Further
TOPWhile the knock and talk exception allows police to enter the curtilage of the home without a warrant, there is no reason for courts to apply this exception to any police activities except those made near a doorway. It is important to remember that the Court has emphasized that the knock and talk results from a license to approach the door and knock. There is not, however, any license to simply attempt to speak to someone on their property. The Eleventh Circuit applied this principle incorrectly in Walkerwhen it allowed the police to leave the front door and approach a sleeping defendant elsewhere on the curtilage.131
United States v. Walker, 799 F.3d 1361, 1364 (11th Cir. 2015).
Id.
See Covey v. Assessor of Ohio Cnty., 777 F.3d 186,193 (4th Cir. 2015) (quoting Pena v. Porter, 316 Fed.Appx 303, 313 (4th Cir. 2009)).
Id. (“If the officers first saw Mr. Covey from a non-curtilage area, they may well prevail under the knock-and-talk exception at summary judgment.”).
See Breard v. City of Alexandria, La., 341 U.S. 622, 626 (1951) (“The knocker on the front door is treated as an invitation or license to attempt an entry.”).
These circuits formulate the knock and talk in a way that wrongfully undermines the private property interests that the Court recognized in Jardines. The Fourth Amendment protects the curtilage in order to defend “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”136
Florida v. Jardines, 569 U.S. 1, 6 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).
Preventing police from approaching and speaking to someone who is standing in plain sight could be seen as placing a significant burden on society’s interest in effective policing. But such a rule would not excessively interfere with police activities because it would simply require the police to avoid intruding upon the curtilage. This limitation does not prevent police from attempting to speak to a person, so long as they do so while respecting the property interests protected by the Fourth Amendment. Police would be free to stand on the sidewalk, for example, and attempt to converse at a distance. This would do nothing to prevent police from having a full conversation with visible residents and asking for consent to conduct a search. Critically, it would prohibit police from using the knock and talk to initiate a conversation that would not be feasible from the sidewalk or front door.
D. The Value of Using Bright-Line Rules Once Police Have Begun a Knock and Talk
TOPWhen it comes to expansion of the knock and talk exception, courts are too permissive of police officers expanding the bounds of the exception. Courts extend the knock and talk exception by declaring police oversteps justified by the circumstances. This is understandable, since the Supreme Court has stated that “[t]he touchstone of the Fourth Amendment is reasonableness.”137
Florida v. Jimeno, 500 U.S. 248, 250 (1991).
Ohio v. Robinette, 519 U.S. 33, 34 (1996).
First, there is a “presumption of unreasonableness that attaches to all warrantless home entries.”139
Welsh v. Wisconsin, 466 U.S. 740, 750 (1984).
Id.
Additionally, while other exceptions to the warrant requirement depend on fact-specific circumstances and are therefore limited in their applicability, knock and talks enjoy extremely broad authorization. Consider other circumstances where the police may enter the curtilage of the home without a warrant. Police can enter without a warrant to prevent the destruction of evidence.141
See Kentucky v. King, 563 U.S. 452, 462 (2011) (“warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.”).
See United States v. Santana, 427 U.S. 38, 42 (1976).
See Brigham City, Utah v. Stuart, 547 U.S. 398, 400 (2006) (holding that “police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.”).
Florida v. Jardines, 569 U.S. 1, 8 (2013) (quoting McKee v. Gratz, 260 U.S. 127, 136 (1922)).
The Supreme Court has also singled out the space of the home as an area which must be protected by bright-line rules. The Fourth Amendment draws a “firm line at the entrance to the house” because “[t]he physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”145
Payton v. New York, 445 U.S. 573 (1980).
533 U.S. 27 (2001).
Id. at 40.
Because knock and talks are distinct from other exceptions to the warrant requirement, it makes sense to constrain them with bright-line rules. The license to conduct a knock and talk is so much broader in scope than the other exceptions that without clear limits, the knock and talk exception threatens to eclipse the stringent protections that the Fourth Amendment grants.
One potential concern with using bright-line rules to govern knock and talks is that social customs related to knocking on the door are amorphous, leading to police confusion. A knock and talk is theoretically identical to what a private citizen might do, but different private citizens behave differently around someone’s home. While it would be unusual for trick-or-treaters or canvassers to probe around a house after receiving no response at the front door, a friendly neighbor may feel perfectly comfortable heading into the backyard to see if anyone is home. Neighbors on especially good terms may even occasionally let themselves into an unlocked door and walk around inside to see if someone is home. Since there are so many scenarios to consider, it makes it difficult to craft a rule that differentiates between those actions that are covered by the license and those that are not.
This ambiguity could justify using a bright-line rule to determine acceptable behavior. The implied license should not be construed overbroadly simply because a small group of people act as trusted neighbors. The Supreme Court has recognized that a knock and talk is no more than what “any” private citizen can do.148
Kentucky v. King, 563 U.S. 452, 469 (2011).
Limiting knock and talks according to bright-line rules would not interfere with legitimate police work. Constraints on knock and talks are counterbalanced by the police’s ability to pursue other strategies, including applying for a warrant. For other exceptions to the warrant requirement, the police do not have time to seek a warrant, so their options are limited. When there are no exigencies, knock and talks are merely one of several investigative strategies the police can pursue.
E. Restricting Unconstitutional Knock and Talks Will Vindicate the Property Rights of Residents
TOPOne potential reason that courts are permissive of meandering police behavior on the curtilage is that there is rarely a sufficient expectation of privacy to give rise to Katz protection. Front and back porches, yards, and driveways are almost always exposed to public view. Even if an area behind the home is not visible from the street, police can constitutionally observe these spaces, even using means of aerial surveillance to do so.149
See Florida v. Riley, 488 U.S. 445 (1989) (holding that police helicopter observation of backyard area was not a search that required a warrant).
565 U.S. 400 (2012).
Id. at 404–8.
Id.
Id. at 409.
Id. at 406.
When the courts allow knock and talks to proceed beyond the limits of any implied license or warrant, they enable tactics that can be used for unfettered intimidation. Police can post themselves on a citizen’s doorstep and refuse to leave. They can knock and call for minutes on end or wander around the perimeter of the house. Attempting to hide within the confines of one’s home may simply prolong the harassment. Confoundingly, the police are free to engage in such behavior on a whim, without ever needing to show suspicion.
The right to be free from government intrusion in one’s home is the right “[a]t the very core” of the Fourth Amendment.155
Silverman v. United States, 365 U.S. 505, 511 (1961).
V. Conclusion
TOPFollowing the Supreme Court’s decision in Jardines, courts across the country modified their knock and talk jurisprudence to varying degrees. These ongoing controversies about police authority leave the home, the area most heavily protected by the Fourth Amendment, vulnerable to warrantless intrusion. The Supreme Court’s discussion of knock and talks, though limited, implies consistent and sensible limits on police usage of knock and talks. Courts must analyze these Fourth Amendment issues by considering the implied social license to approach the door of a home and knock.
Several circuits allow police to extend the duration and scope of an attempted knock and talk based on the circumstances that police encounter after beginning the knock and talk, but this cannot be justified. Without an invitation to continue from an occupant, any effort by the police to persist with an unsuccessful knock and talk oversteps the social license that allows the police to be on the curtilage in the first instance.
Adopting clearer and stricter rules is necessary to ensure that police perform knock and talks in a way that comports with the principles of the Fourth Amendment. Additional constraints will not prevent police from conducting ordinary knock and talks, but instead will safeguard against police who abuse this privilege to visit private areas of the home for an extended duration. Through a renewed focus on the implicit license to knock on the door, courts will reaffirm the home’s special status in Fourth Amendment jurisprudence as “first among equals.”156
Florida v. Jardines, 569 U.S. 1, 6 (2013).
- 1Florida v. Jardines, 569 U.S. 1, 6 (2013).
- 2Id. at 8 (quoting Entick v. Carrington (1765) 95 Eng. Rep. 807, 817).
- 3United States v. Dunn, 480 U.S. 294, 300 (1987) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).
- 4Id.
- 5480 U.S. 294 (1987).
- 6Id. at 301.
- 7Florida v. Jardines, 569 U.S. 1, 7 (2013).
- 8See id. at 8–9.
- 9See, e.g., United States v. Carloss, 818 F.3d 988 (10th Cir. 2016) (allowing admission of methamphetamine residue discovered inside house during consent search).
- 10See, e.g., United States v. Jones, 239 F.3d 716 (5th Cir. 2001) (holding that there is no expectation of privacy concerning articles that can be seen in plain view by an officer when a defendant opens the door to respond to knocking).
- 11563 U.S. 452 (2011).
- 12569 U.S. 1 (2013).
- 13Id. at 8.
- 14See Carroll v. Carman, 574 U.S. 13, 20 (2014) (“We do not decide today . . . whether a police officer may conduct a ‘knock and talk’ at any entrance that is open to visitors rather than only the front door”).
- 1542 U.S.C. § 1983.
- 16Id.
- 17See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
- 18See, e.g., United States v. Carloss, 818 F.3d 988 (10th Cir. 2016).
- 19See Breard v. City of Alexandria, La., 341 U.S. 622, 626 (1951) (“the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers for all kinds of salable articles.”).
- 20For a general overview see Fern Kletter, Annotation, Construction and Application of Rule Permitting Knock and Talk Visits Under Fourth Amendment and State Constitutions, 15 A.L.R.6th 515 (2006).
- 21See, e.g., United States v. Perea-Rey, 680 F.3d 1179 (9th Cir. 2012).
- 22See, e.g., Hardesty v. Hamburg Twp., 461 F.3d 646, 654 (6th Cir. 2006).
- 23See, e.g., Edens v. Kennedy, 112 F. App’x 870 (4th Cir. 2004) (allowing knock and talk where police knocked at both the front and back door of a residence); United States v. Gomez-Moreno, 479 F.3d 350, 356 (5th Cir. 2007) (acknowledging that police may knock at back door if front door is not answered).
- 24See, e.g., United States v. Ray, 199 F. Supp. 2d 1104 (D. Kan. 2002) (allowing police to conduct a knock and talk at 1:30 a.m. after receiving a tip that a trailer was a meth lab); Scott v. State, 366 Md. 121 (2001) (allowing a suspicionless knock and talk at motel room at 11:30 p.m.); United States v. Walker, 799 F.3d 1361, 1364 (11th Cir. 2015) (allowing a knock and talk at 5:04 a.m. because there were lights on, indicating someone was awake).
- 25Kentucky v. King, 563 U.S. 452 (2011).
- 26Id. at 456.
- 27Id.
- 28Id. at 469–70.
- 29Id. at 470 (quoting United States v. Chambers, 395 F.3d 563, 577 (6th Cir. 2005) (Sutton, J., dissenting)).
- 30Florida v. Jardines, 569 U.S. 1 (2013).
- 31Id. at 3–4.
- 32Id.
- 33Id.
- 34Id. at 11–12.
- 35See id. at 8–10.
- 36Jardines, 569 U.S. at 8.
- 37Id. at 9.
- 38Id. at 11.
- 39See, e.g., Olmstead v. United States, 277 U.S 564 (1928) (holding that a wiretap without a warrant was admissible evidence because telephone wires outside of the home are not property protected under the Fourth Amendment), overruled by Katz v. United States, 389 U.S. 347 (1967)).
- 40(1765) 95 Eng. Rep. 807.
- 41Jardines, 569 U.S. at 8 (quoting Boyd v. United States, 116 U.S. 616, 626 (1886)).
- 42Id. (quoting Entick, 95 Eng. Rep. at 817).
- 43389 U.S. 347 (1967).
- 44Id. at 360 (Harlan, J., concurring).
- 45Id. at 351.
- 46Jardines, 569 U.S. at 11.
- 47Id.
- 48Id. (quoting United States v. Jones, 565 U.S. 400, 409 (2012)).
- 49See French v. Merrill, 15 F.4th 116, 131 (1st Cir. 2021), cert. denied, Morse v. French, 143 S.Ct. 301 (2022).
- 50Id. at 134.
- 51Id.
- 52French v. Merrill, 24 F.4th 93, 94 (1st Cir. 2022) (denying rehearing en banc).
- 53French,15 F.4th 116 at 142 (Lynch, J., dissenting).
- 54Id. at 143 (Lynch, J., dissenting).
- 55818 F.3d 988 (10th Cir. 2016).
- 56Id. at 992–93.
- 57No. 21-10159, 2022 WL 3334535 (5th Cir. 2022).
- 58Id. at *1.
- 59Id. at *7.
- 60Id. at *4 (noting that police may attempt a second knock at a different entrance, but that if no one answers, police must change their strategy) (quoting United States v. Gomez-Moreno, 479 F.3d 350, 355–56 (5th Cir. 2007)).
- 61Appellant’s Opening Brief at 30, Westfall v. Luna, No. 21-10159 (5th Cir. 2022).
- 62United States v. Maxi, 886 F.3d 1318, 1327 (11th Cir. 2018).
- 63141 S.Ct 22 (2020).
- 64See State v. Bovat, 211 Vt. 301, 309 (Vt. 2019).
- 65Id. at 307–09.
- 66Bovat v. Vermont, 141 S.Ct. at 23.
- 67Id.at 24.
- 68211 Vt. 301 (2019).
- 69See State v. Calabrese, 268 A.3d 565, 577 (Vt. 2021).
- 70Id.
- 71749 F.3d 192 (3rd Cir. 2014).
- 72Id. at 197.
- 73Id. at 199.
- 74Id.
- 75Id.
- 76Caroll v. Carman, 574 U.S. 13, 17–20 (2014) (“But whether or not the constitutional rule applied by the court below was correct, it was not ‘beyond debate.’”).
- 77Id. at 20 (“We do not decide today . . . whether a police officer may conduct a ‘knock and talk’ at any entrance that is open to visitors rather than only the front door”).
- 7815 F.4th 116 (1st Cir. 2021).
- 79Id. at 129.
- 80Id.
- 81Id.
- 82Id. at 130.
- 83648 F.3d 671 (8th Cir. 2011).
- 84Id. at 673.
- 85Id.
- 86Id. at 680.
- 87SeeCovey v. Assessor of Ohio Cnty., 777 F.3d 186 (4th Cir. 2015); see also United States v. Walker, 799 F.3d 1361 (11th Cir. 2015).
- 88799 F.3d.
- 89Id.
- 90Id. at 1362–63.
- 91Id.
- 92Id. at 1363.
- 93Id. at 1363.
- 94Id. at 1364.
- 95See United States v. Taylor, 458 F.3d 1201, 1205 (11th Cir. 2006).
- 96United States v. Miller, 809 F. App’x 131, 138 (4th Cir. 2020) (internal quotation marks omitted).
- 97777 F.3d 186 (4th Cir. 2015).
- 98Id. at 190.
- 99Id.
- 100Id. at 193.
- 101Id.
- 102Id.(citing Pena v. Porter, 316 Fed.Appx. 303, 313 (4th Cir.2009)).
- 103See Alvarez v. Montgomery Cnty., 147 F.3d 354, 359 (4th Cir. 1998) (“[I]n light of the sign reading ‘Party In Back’ with an arrow pointing toward the backyard, it surely was reasonable for the officers to proceed there directly as part of their effort to speak with the party’s host.”).
- 104United States v. Miller, 809 F. App’x 131 (4th Cir. 2020).
- 105SeeHardesty v. Hamburg Twp., 461 F.3d 646, 654 (6th Cir. 2006).
- 106See Brennan v. Dawson, 752 F. App’x 276, 283 (6th Cir. 2018).
- 107Id. (quoting Morgan v. Fairfield Cnty., Ohio, 903 F.3d 553, 565 (6th Cir. 2018)).
- 10815 F.4th 116 (1st Cir. 2021).
- 109Id.
- 110Id. at 131 (quoting Hopkins v. Bonvicino, 573 F.3d 752, 765 (9th Cir. 2009)).
- 111See United States v. Gomez-Moreno, 479 F.3d 350, 356 (5th Cir. 2007); United States v. Troop, 514 F.3d 405, 410 (5th Cir. 2008).
- 112Gomez-Moreno, 479 F.3d at 356.
- 113Troop, 514 F.3d at 411.
- 114See United States v. Flores, 799 F. App’x 282 (5th Cir. 2020).
- 115818 F.3d 988 (10th Cir. 2016).
- 116Id. at 994.
- 117Id. at 998.
- 118Id. at 998.
- 119Florida v. Jardines, 569 U.S. 1, 8 (2013).
- 120Id.
- 121See Carman v. Carroll, 749 F.3d 192, 199 (3rd Cir. 2014).
- 122See, e.g., United States v. Wells, 648 F.3d 671 (8th Cir. 2011) (where officers entered the backyard to search for drug manufacturing operations instead of knocking on accessible front door).
- 123Jardines, 569 U.S. at 8.
- 124Id.
- 125Id. at 10.
- 126See Brennan v. Dawson, 752 F. App’x 276, 283 (6th Cir. 2018).
- 127United States v. Carloss, 818 F.3d 988, 998 (10th Cir. 2016).
- 128Jardines, 569 U.S. at 8.
- 129Kentucky v. King, 563 U.S. 452, 469–70 (2011).
- 130Id. at 470 (quoting United States v. Chambers, 395 F.3d 563, 577 (6th Cir. 2005)).
- 131United States v. Walker, 799 F.3d 1361, 1364 (11th Cir. 2015).
- 132Id.
- 133See Covey v. Assessor of Ohio Cnty., 777 F.3d 186,193 (4th Cir. 2015) (quoting Pena v. Porter, 316 Fed.Appx 303, 313 (4th Cir. 2009)).
- 134Id. (“If the officers first saw Mr. Covey from a non-curtilage area, they may well prevail under the knock-and-talk exception at summary judgment.”).
- 135See Breard v. City of Alexandria, La., 341 U.S. 622, 626 (1951) (“The knocker on the front door is treated as an invitation or license to attempt an entry.”).
- 136Florida v. Jardines, 569 U.S. 1, 6 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).
- 137Florida v. Jimeno, 500 U.S. 248, 250 (1991).
- 138Ohio v. Robinette, 519 U.S. 33, 34 (1996).
- 139Welsh v. Wisconsin, 466 U.S. 740, 750 (1984).
- 140Id.
- 141See Kentucky v. King, 563 U.S. 452, 462 (2011) (“warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.”).
- 142See United States v. Santana, 427 U.S. 38, 42 (1976).
- 143See Brigham City, Utah v. Stuart, 547 U.S. 398, 400 (2006) (holding that “police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.”).
- 144Florida v. Jardines, 569 U.S. 1, 8 (2013) (quoting McKee v. Gratz, 260 U.S. 127, 136 (1922)).
- 145Payton v. New York, 445 U.S. 573 (1980).
- 146533 U.S. 27 (2001).
- 147Id. at 40.
- 148Kentucky v. King, 563 U.S. 452, 469 (2011).
- 149See Florida v. Riley, 488 U.S. 445 (1989) (holding that police helicopter observation of backyard area was not a search that required a warrant).
- 150565 U.S. 400 (2012).
- 151Id. at 404–8.
- 152Id.
- 153Id. at 409.
- 154Id. at 406.
- 155Silverman v. United States, 365 U.S. 505, 511 (1961).
- 156Florida v. Jardines, 569 U.S. 1, 6 (2013).