Even When the Controlled Buys Happen at the Back Door, Knock and Talks Must Happen at the Front Door

I’ve blogged before about whether law enforcement officers may go to a side door, or the back door, when attempting to conduct a knock-and-talk. The court of appeals just decided another case on point, again holding that an officer generally may not do so.

The case is State v. Stanley.

Facts. A confidential informant contacted the Durham police, reporting that he had purchased heroin from a man named Meager at a particular apartment. The CI then made three controlled buys from Meager at the same apartment, each time using the back door of the unit.

Officers obtained an arrest warrant for Meager and went to the apartment. Meager wasn’t there, but defendant Stanley – an overnight guest at the residence – was present and opened the door for the officers. The officers smelled marijuana, entered the apartment to conduct a protective sweep, and eventually arrested Stanley based on controlled substances and paraphernalia they found on his person and in the apartment.

Procedural history. Stanley was charged with trafficking in heroin and other offenses. He moved to suppress, arguing that the officers violated the Fourth Amendment by approaching the back door of the apartment without a search warrant. A superior court judge denied the motion, and Stanley pled guilty, reserving his right to appeal.

Court of appeals opinion. The court of appeals agreed with the defendant. Citing State v. Huddy, __ N.C. App. __, 799 S.E.2d 650 (2017) (knock and talk at storm door on rear porch improper); State v. Gentile, 237 N.C. App. 304 (2014) (knock and talk at back door after brief attempt at front door improper); and State v. Pasour, 223 N.C. App. 175 (2012) (knock and talk at back door after no reply at front door improper), the court held that the officers’ implied invitation to approach the home extended only to the front door, as that was the entrance available to visitors:

[I]n order to pass constitutional muster, the officers were required to conduct the knock and talk by going to the front door, which they did not do. Rather than using the paved walkway that led directly to the unobstructed front door of the apartment, the officers walked along a gravel driveway into the backyard in order to knock on the back door, which was not visible from the street. Such conduct would not have been reasonable for [solicitors and other members of the public, so] it was also unreasonable for law enforcement officers.

The State noted that the CI had used the back door repeatedly, but the court saw that as immaterial: “[T]he fact that the resident of a home may choose to allow certain individuals to use a back or side door does not mean that similar permission is deemed to have been given generally to members of the public.”

Of course, the requirement that officers use the front door is not absolute. The court “recognize[d] that the existence of unusual circumstances in some cases may allow officers to lawfully approach a door of a residence other than the front door in order to conduct a knock and talk.” As an example, the court cited State v. Grice, 367 N.C. 753 (2015), holding that officers were “implicitly invited into the curtilage to approach the home” where front door was “inaccessible, covered with plastic, and obscured by furniture” and side door “appeared to be used as the main entrance.” My favorite way to conceptualize this inquiry is using the Girl Scout test. If a Girl Scout would use the entrance in question in an effort to sell cookies, it is fair game for law enforcement. If not, not. See Florida v. Jardines, 569 U.S. 1 (2013) (arguing that understanding the scope of the implied invitation of common entranceways “does not require fine-grained legal knowledge” as it is “is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters”). Applying that test, it is hard to quibble with the outcome of Stanley.

Multi-unit dwellings. Although not addressed in the opinion, a Fourth Amendment issue lurking in this case is the extent to which multi-unit dwellings have curtilage. The trial judge found that the apartment in question was one unit in a small duplex. Google Street View confirms that the structure is a small, side-by-side duplex near the Durham Freeway. The extent to which multi-unit dwellings have curtilage is not settled, as I discussed in blog posts here and here. There’s not much North Carolina law on point, so the fact that Stanley concluded, even in passing, that the backyard of a duplex is part of the curtilage may be significant.