Does the Trespass Theory of the Fourth Amendment Limit the Scope of Knock and Talks?

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In United States v. Jones, 565 U.S. __ (2012), and Florida v. Jardines, 569 U.S. __ (2013), the Supreme Court announced a new, or perhaps revived an old, understanding of the Fourth Amendment that is closely tied to property rights and trespass. In Jones, the Court ruled that attaching a GPS tracking device to a suspect’s vehicle was a search because officers “physically occupied private property for the purpose of obtaining information.” In Jardines, the Court ruled that the implied invitation to approach the front door of a residence does not extend to an officer with a drug dog, so officers who went to the front porch of a suspect’s home with a canine conducted an “unlicensed physical intrusion.” In both cases, the Court resolved the question of whether the officers’ conduct was a Fourth Amendment search by focusing on property rights rather than on the existence of a reasonable expectation of privacy, though the Court made clear that the trespass test supplements, rather than replaces, the expectation of privacy framework announced in Katz v. United States, 389 U.S. 347 (1967).

The trespass theory of the Fourth Amendment could have a significant impact on the scope of officers’ knock and talk authority, as discussed below.

Limits on use of investigative techniques. Prior to Jones and Jardines, courts and commentators sometimes suggested that so long as officers remained on the entranceway to a residence, there could be no Fourth Amendment intrusion, because there is no reasonable expectation of privacy in the entranceway. See, e.g., United States v. Lakoskey, 462 F.3d 965 (8th Cir. 2006) (“[W]e will not extend [defendant’s] expectation of privacy to his driveway, walkway or front door area.”). But even if there is no reasonable expectation of privacy in an entranceway, and so no limit to what an officer may do in such an area under the Katz analysis, Jardines holds that an officer who engages in an investigative technique beyond what a social visitor is likely to do is a trespasser and so, absent a warrant or an exception to the warrant requirement, is in violation of the Fourth Amendment. As noted above, Jardines specifically ruled that bringing a drug dog on a knock and talk exceeds the scope of the implied license to approach a residence by a common entranceway, and so renders the entry a trespass and a Fourth Amendment search, but the rationale of Jardines is not limited to drug dogs. The majority opinion states that “exploring the front path with a metal detector” would likewise be outside the scope of the implied license. Another possible example is swabbing a drug suspect’s front doorknob for drug residue. As discussed in State v. Nielsen, 306 P.3d 875 (Utah Ct. App. 2013), courts have split over whether such activity constitutes a Fourth Amendment search. The argument that it is a search after Jardines is much stronger. Even an officer who bends down to examine the undercarriage of a vehicle parked in a suspect’s driveway might perhaps be viewed as exceeding the scope of the implied license. Cf. United States v. Pineda-Moreno, 617 F.3d 1120 (9th Cir. 2010) (Kozinski, J., dissenting from denial of rehearing en banc) (police placed a GPS tracking device on a suspect’s vehicle while it was parked in his driveway near his home; a panel of the Ninth Circuit ruled that the suspect had no reasonable expectation of privacy in the driveway because it was a common entranceway that might be used by visitors, delivery people, or neighborhood children; Chief Judge Kozinski argued that the fact that others might have access to an area for limited purposes doesn’t necessarily defeat the occupant’s expectation of privacy in the area altogether such that law enforcement officers have unfettered access to the area).

Furthermore, when a knock and talk is rendered a trespass under Jardines because it is joined with investigative activity not usually undertaken by social visitors, even information obtained by the officer’s casual observation rather than the investigative technique in question may be subject to exclusion. For example, if an officer sees marijuana plants through a window as he approaches a suspect’s home with a drug dog, there is a reasonable argument that the entire visit is a trespass and therefore a Fourth Amendment search, so that anything discovered during the visit is subject to suppression, even if it could have been discovered through a standard knock and talk.

Nighttime approaches. Jardines strongly suggests that knock and talks conducted late at night are searches under the Fourth Amendment. Previous knock and talk cases generally allowed the technique to be used during the nighttime. See, e.g., Scott  v. State, 782 A.2d 862 (Md. 2001) (no Fourth Amendment violation where police “randomly knock[ed] on motel room doors at 11:30 p.m.” in the hopes of obtaining consent to search the rooms; the court indicated that the late hour was a factor in deciding whether a Fourth Amendment intrusion had taken place, but rejected any bright-line rule about late night knock-and-talks, and determined that the one at issue did not implicate the Fourth Amendment); State v. Whitaker, 2013 WL 3353334 (Tenn. Ct. Crim. App. June 28, 2013) (unpublished) (holding that a knock and talk conducted at 10:00 p.m. was not a seizure and stating that “[t]he fact that the encounter occurred at night does not per se invalidate a knock and talk, but it is instead a factor to be considered in conjunction with the other circumstances surrounding the encounter”). Cf. Luna-Martinez v. State, 984 So. 2d 592 (Fla. Ct. App. 2nd Dist. 2008) (ruling that a defendant’s consent to search obtained during a 3:00 a.m. knock and talk was given voluntarily and stating that although the late hour is a factor in analyzing the interaction between the police and a suspect, it does not carry great weight as “it is not unusual for the police in their investigative efforts to have late night encounters with individuals”). However, Jardines seems to indicate that the implied invitation that allows officers and others to approach dwellings’ front doors is not in place 24 hours per day. The Jardines dissent states that “as a general matter,” a visitor may not “come to the front door in the middle of the night without an express invitation.” Slip op. at 5. The majority suggests that the dissent is “quite right[]” on this issue, which would make a late night knock and talk a trespass and a Fourth Amendment search. Slip op. at 7 n.3.

This raises a number of practical questions, but the Court offers no guidance about how late is too late. Is 8:00 p.m. the cutoff? 9:00 p.m.? Nightfall? Does the answer vary based on local norms and customs? Is it relevant whether the officer knows the suspect tends to stay up late? Or that there is a light on in the dwelling when the officer approaches?

Duration. Finally, the Jardines majority states that there is an “implicit license [that] typically permits [a] visitor to approach [a] home by the front path, knock promptly, wait briefly to be received, and then (absent an invitation to linger longer), leave.” The Court’s admonition that the visitor must “knock promptly” and “wait briefly” for a response suggests that an officer who tarries too long during a knock and talk may violate the Fourth Amendment under the trespass theory. Again, there are unanswered practical questions here, like how many times an officer may knock and how quickly he or she must depart if no response is forthcoming.

As always, your thoughts and comments are welcome. Officers, are you approaching knock and talks differently post-Jardines? Lawyers, have you seen any of these issues litigated?

21 comments on “Does the Trespass Theory of the Fourth Amendment Limit the Scope of Knock and Talks?

  1. i wonder if the jardine “trespass theory” might cover personal property as well as real estate. specifically, the use of a drug dog during a “routine” traffic stop, without any basis in reasonable suspicion? after all, the activity is one that the vehicle owner/operator would hardly consider as being by invitation…

    • Good question.

      • well, i am very interested in your response to that query.

    • A routine traffic stop where dogs are used is very legal. Why? Because it is less intrusive than the police searching the inside of your car. If the dog alerts to the smell of something than the police have every right to search your car. This can be done because it is the least intrusive way and because it is on a public highway. At your own home is a different story. The dogs can only be used AFTER a search warrant has been issued and only if the warrant is obtained with significant belief that the use of dogs is justifiable.

  2. As Justice Alito said in Jardines, “If bringing a tracking dog to the front door of a home constituted a trespass, one would expect at least one case to have arisen during the past 800 years. But the Court has found none.” It all of a sudden changed in 2013 despite the use of dogs for as far back as the 1300s. Unfortunately for whatever reason the Supreme Court has decided to ride this rule of trespass mess lately despite it being completely absent in pretty much the entire history of our jurisprudence as pointed out by Justice Alito.

    A knock and talk is a fundamental aspect of policing and the citizens of this country expect law enforcement to occasionally knock on their door for various reasons just as other common visitors. If you polled the average American I think most would agree that they have no issue and there is in fact implied consent for the police to come onto to their porch to engage in dialogue. This type of activity goes on 24 hours a day as the police are constantly engaging with citizens at all times in the night. It will be a sad day in America if the police have to get a search warrant or have exigent circumstances to knock on a citizen’s door and engage in a consensual conversation. Such a change by the Supreme Court would be similar to the Arizona v Gant decision.

    • Could it be possible that since the 1300’s Law Enforcement communities (everywhere) have been pushing the limits of their authority. Has it taken this long 700 plus years for our Courts to recognize the potential for abuse, and realize that mere common sense cannot be relied on to prevent abusive tactics, and hence the new case law (common Law) has became necessary in order to protect the Citizens?

      As a Citizen I don’t want anybody on my property for any reason ever, day or knight, unless they are invited. If there is some sort of extenuating circumstance (imminent danger to my person or property) I would consider an exception. I have never encountered any Law Enforcement Officer that merely wanted to engage in casual (Non Investigative) conversation while they were on duty. I don’t suspect they are being paid to go trespass on private property, and or knock on doors late at night either (Common sense tells one that).

  3. Very good article Mr. Welty. Thanks for sharing this knowledge.

  4. Jim,
    What about a neighborhood canvass? What if you were a victim of a crime and the police went knocking on doors trying to see if anyone saw anything suspicious that could help solve the crime you were a victim of? It is very common for the police to go on to private property to engage citizens in ways that have nothing to do with trying to search their property. There are several legitimate reasons beyond exigent circumstances that the police need to conduct knock and talks where the initial purpose is not to search the private property they are on. If it so happens that the police come across illegal activity in plain view upon engaging in these legitimate purposes it should be considered a lawful seizure.

    Let’s say the police respond to a report of a hit and run accident involving a parked vehicle at 11:00PM. The police have no apparent witnesses so they start knocking on nearby residences in order to gather potential information about the crime. This situation clearly has no exigency; however it is a legitimate duty and I would argue expected by society. Now let’s say that the police officer knocks on one door and notices a marijuana plant growing in the window. The officer had no intention of finding this, but there it is. Should this be considered tainted because he dared commit a trespass to the property rights of another by knocking on a residence at 11:00 PM?

    • Those sort of matters would be exigent circumstance’s ‘if’ it was that actual purpose not something contrived. Please don’t suggest that Officers would never fabricate or contrive a reason I know better. I am not say that all would but some will. It is actually about reasonableness, and intent. “If there is an actual purpose other than investigative intent there is NO problem.

      If a person I did not invite onto my property where to come known on the door needing help (say the hit a deer and are hurt) I am not so unreasonable as to turn them away.

  5. I find it interesting that the court would actually take in to account that an officer waited too long after knocking on a door, that it could be looked at as a trespass. To think that an officer would be trespassing on the front steps of a house is kind of funny since under the law no other person could be charged with trespassing unless your property was so enclosed or posted for someone to know they were not welcome or if a person was asked to leave and then remained on the property. Since the court is looking at how many times you knock or how long you wait, could I have someone charged for trespassing, say a door to door sales person if I felt they knocked too many times? I am sure that no citizen would have to deal with justifying how long they waited for someone to answer the door, I think this was just a bad ruling for law enforcement, not the first and it won’t be the last I am sure.

  6. We are just making crime fighting harder and criminal activity easier. If we are going to talk about common sense then people should have the sense not to break the law. When I work the streets as a deputy sheriff I have some people in a neighborhood invite me to stop by whenever and then others that tell me I’m trespassing when someone from their residence called 911. Eventually we are going to have to ask for consent to arrest them and have that recorded with a written statement. The criminals prosper each time we come up with these rediculous technicalities. An officer could discover stolen property or narcotics in plain view on a knock and talk, but don’t worry Mr. Criminal, that officer was “trespassing.”

    • Agreed that ‘ignorance of the law is no excuse’. Most Citizens never bother to study the laws that govern which is a conscious decision of their own free will. Then they will frequently complain when they get snared.

      Have you ever visited your communities law library that is open to the Public (Citizens) and looked at what is available for them to study? I can assure you that you will not find all the Laws We are subject to there.

      For the minority of Citizens who are not Law Students, Prosecutors, Judges, Lawyers, ETC that do feel compelled to know and understand the governing laws it is very difficult.

      I have had legal experts suggest to me that the State is not bound to provide the average Citizens full and complete access to all the laws they (persons setting and acting as State Officials) Pass, Codify, and share among themselves. If this is the case how are the Citizens expected to know all the laws, rules, regulations, and policies they may or may not be subject to?

      Then in many cases the few (Private Citizens) that do feel the need and ask questions get labeled and targeted as trouble makers.

      If a Citizen has a legal question, and asks a member of the Law Enforcement community, a Court Clerk, local Judge, Prosecutor, or Law Professor, they are most frequently advised to go hire a ‘Private Attorney’. My experiences with private council is that they are very selective about what kind of advise they will give (Wrong Field ETC) most want money up front, and an appointment, and I have never encountered any that are not REAL Pricy to hire or keep on a retainer.

    • Sure, a cop could find lots of stolen property or drugs if they just walked into any private home they wished and ransaked it…but we have a Constitution that limits the cops from their natural tendency to push the limits of all rights we still have left. If a cop comes to a door and stays, beating on the door, or with a dog..the resident is left to endure constant knocking and demands for attention by the cop unless limits are in place. Without limits, most cops who believe someone was home would harrass the resident until they relented and opened the door, even if they did not want to. Why should a citizen feel barricaded in their homes, afraid to go out just becaause some cop wants a knock and talk? If a salesman does not get an answer after a minute, they leave, and so should cops. Persistent badgering and disturbing a residents peace is not a valid too, for cop without a warrant. Cops would peep in windows, violate curtilage and spy on people unchecked if left to their own devices, so courts must reign them in. There are too may horror stories about cops abusing rights to trust them, and so citizens should know and use their rights of refusal at all times when confronted by a cop. Ask ant defense attorney…talking to cops and allwing searches is insane.

    • I had officers -4 -come for a knock and talk n talk at almost midnight to a dark house because of texting between in kids. when I refused to even answer the door, the hit and kicked the front of my house for approx. 30 mins. …… my service dog peed himself……. my son was woke up and upset and had school the next day. the “officers” knocked three pictures off my wall. Breaking the glass pieces in the frame of my children. my fenced yard leading to my deck is posted no trespassing. ……finally I called 911 because I was at a loss as to how to calm my son and service dog down. and also needed to take meds for myself. they waited a few days and arrested me for unlawful use of 911. I spent 4 days in jail. …… no other charge. shouldn’t they be charged with trespassing? I am blind in one eye 5 bulging discs PTSD SEVERE axiety. many caused by them. the police won’t leave me alone. the arrest. DA declines to charge over and over……..

  7. come knocking

  8. The last I heard that acting under the ‘color of law and official right’ and not actually within the scope and purview of a job description is a crime. This would include all those ‘unalienable rights’ allegedly secured by our laws would have to be honored. Nasty little things like due process, equal justice, open courts (with actual records) security in ones home, person, papers, and affect from unreasonable, irrational, unwarranted searches and seizures, fair and impartial ‘trials ”by” jury’ considering both LAW and FACT (not jury trials) ETC.

    Of course many ‘criminals’ that would act outside the scope and purview of their job descriptions while acting under the color of law and official right (either ignorantly or willingly), are never discovered, charged, or tied at all.

  9. Jim,
    If this country is so full of law officers that conduct unwarranted searches and take away all privacy from citizens, then just how do you explain the plethora of unsolved criminal cases and absolute astounding rates of criminal activity occurring within our country. Law enforcement officers are tasked with a lot of responsibility and communities expect the police to solve crime. Citizens don’t call you at 2:00 AM for help because you don’t work then. You get the privilege to sit back on a computer and think about all of your decisions for several hours doing research on the law. Some people don’t have that privilege and for you to suggest that those individuals who don’t have that time and yet are directly responsible to make those split second sometimes life or death decisions at 2:00 AM for a salary far below yours to be charged with a crime when they happen to make a good faith mistake is absolutely ridiculous.

    The government waives sovereign immunity in way too many situations and we have in this country created a litigation nightmare. The high amount of frivolous lawsuits that government attorneys have to waste resources on defending is unacceptable. The vast majority of them is defeated through summary judgment and proves how frivolous most are. You have several attorneys sitting around just waiting to find that big pay day through civil torts against the government. It has also created a situation in America where some think any adverse action whether just or not taken against them is unlawful. The good news is that the majority of Americans do not support the growing level of frivolous lawsuits and our legislators need to continue to revise our laws to remedy this problem. I have absolutely no problem with fair courts and if you truly are a victim of gross government misconduct or negligence then I am all for a lawsuit.
    But enough is enough we this oh please protect us from the big bad police attitude.

    • You appear to be jumping to several not well founded conclusions. First, I would agree that our Courts are over ran with ‘frivolous’ actions (Civil (Torts against Public Servants, then Private Citizens sued by the State (administrative Matters) and then don’t forget the Groups of ambulance Chasers.) Criminal and Administrative matters) They seem to come from all directions)). I would agree that we need tort reform, but would go on to suggest we need some Court reform as well.

      I understand that We need ‘good law enforcement’ Officers, but merely going through police training, qualifying to serve as an officer, being issued a uniform, car, badge, and a gun has no bearing on the integrity, ethics, or principals that person may have. Unfortunately like all other groups of people a few people with no real scruples, integrity, ethics, or principals slip in. ‘These few’ make it hard on the rest.

      When I look around me what I see are 100s and 1000s of men in uniform acting in the capacity of law enforcement officers, and 99 out of a hundred are busy issuing traffic citations (Administrative in nature (Civil/criminal matters)), and not investigating or attempting to enforce the rapes, murders, muggings, theft ETC crimes (Criminal in nature).

      Then you read a news article that says some State government somewhere is encouraging their Law enforcement Officers to issue more traffic citations because the State needs the revenue. The nature of the Motor vehicle Code is NOT for the purpose of raising revenue for the State. It’s nature is to protect the Citizens whom have a right to travel on the Public’s (Their The People (State Body Politic (Not Corporate Body Politic/State)) roads from IDIOTS endangering them or other unauthorized or privileged use. This IS the nature, intent, and sprit of the Motor vehicle Code. When the State is encouraging Law enforcement officers to issue citations for revenue purposes this falls outside the nature, intent, and spirit of that law, and IS an abuse of Power by the State via its agents and agencies.

      Just maybe our Law enforcement community is spending more time issuing blinker, and seat belt citations (enforcing State Administrative ‘policy’ (Not Law) Overloading the Courts and their Dockets) for the easy revenue it generates for the State, and not enough investigating, and enforcing the Crimes found in chapter 14 of the States Statutes.

      Then you make a reference to my personal means (lively hood income) and imply that Law enforcement officer receives less. 1 you probably don’t know what my means are and actually it is no ones business but mine. I assure you however that it is NOT near as much as any Duty Officer receives or most other Public servants.

      I am not a lawyer, or even a formal law student. I do and have been studying the Laws that govern this Nation, State, County, and other Municipalities for well over 20 years. The United States of America is NOT a majority Rule Society as many ASSUME it to be, nor are any of its member States. We are a nation ‘governed by laws’ not ruled by laws created at the ‘whims of a majority’ (Supposed to be anyway).

      The rights of a minority are protected from the whims of the majority by the ‘governing laws’ (US and State constitution, and many are not Codified Law they are found in the Common Law (Published Court Cases)).

    • “If this country is so full of law officers that conduct unwarranted searches and take away all privacy from citizens, then just how do you explain the plethora of unsolved criminal cases and absolute astounding rates of criminal activity occurring within our country?”

      Because cops are busy busting over 800,00 pot smokers year, taking hours to process the suspects, thats why. If cops concentrated on major crimes and left victimless offense alone we would live in a safer nation. but drug busts mean money for police and their departments and bust numbers mean promotions and glory for cops. Knock and talks are fishimh expeditions, period, using your boat and tackle and bait, with the cops keeping the catch.

  10. “When I look around me what I see are 100s and 1000s of men in uniform acting in the capacity of law enforcement officers, and 99 out of a hundred are busy issuing traffic citations (Administrative in nature (Civil/criminal matters)), and not investigating or attempting to enforce the rapes, murders, muggings, theft ETC crimes (Criminal in nature).”

    And with that, the last, tattered traces of credibility evaporate.

    What you SEE when you are riding down the road are police officers doing traffic stops because that is the police at their most visible. What you don’t SEE, because you are not invited into the privacy of homes, offices, interview rooms, and hospitals, is where all the other police work is going on. I assure you it is much more than the meager 1% that you attribute in your statement.

    It’s too bad, because your point about the ticket revenues is spot on. (Atlanta PD is the most recent one I recall reading about that tied tickets to revenue and raises.) It’s shameful, completely destroys the impartiality argument that officers must win on the stand, potentially encourages frivolous charges, and it is something that must come to an end.

    North Carolina, happily, does not have a system that encourages this sort of abuse. Here’s a breakdown from a May 2013 article for a typical ticket:

    State General Fund $127.05
    State Bar Legal Aid Account $2.45
    Facilities Fee $12.00
    Phone System Fee $4.00
    Confinement Fund Fee $18.00
    State Law Enforcement Officer Retirement Fund $7.50
    State Law Enforcement Officer Training & Certification Fee $2.00
    Chapter 20 Fee (for driving related offenses) $10.00
    Service Fee for Law Enforcement Agency issuing citation: $5.00

    Total: $188.00

    Way off topic. Anyway, the point is that if the Jehovah’s Witnesses, local politicians (in an election year), Boy Scouts, Girl Scouts, and the neighborhood kid who wants you to hire him to cut your grass can all come knocking on your front door uninvited, the police can, too. The cops aren’t in the habit of dropping in for coffee: if they are there, they are there on business. If it’s a fishing expedition and they’re trying to see if you’ll tell on yourself, then you can simply tell them to go away. Just like the others, they must then leave. If they’ve got warrants, then they come it. It’s really just that simple.

  11. A knock and talk is always an investigation by cops who do not have probable cause but want the resident to implicate himself or give the cop enough chance to see or smell something to give them an excuse for a search or arrest. Canvassing is totally different. Cops do not bring DOGS to your door in a canvass, which is rare, but they used to do it anytime they suspected a drug offense and wanted PC. Thank God the court struck down this intrusive practice. Cops going to doors with a dog is an Orwellian nightmare…as if busting someone for pot smoking is a good reason to make all of us fear the approach of a cop…most citizens do not have the gumption to refuse to answer a knock at their door when a cop appears, and a cop beating on your door saying ‘ POLICE ” does not seem like you have a choice. Unless a citizen hears ” search warrant, open up ” they should refuse to open their door, and call an attorney immediately…if it is a canvass, let the cops leave a message or try and phone..it is too risky to allow cops any chance at using their tricks to get around the warrant requirement.

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