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

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?