Knock and talks are a common, useful, and sometimes controversial law enforcement tool. I thought that I would put together a post that summarizes the principal legal issues that they present.
Knock and talks are generally permitted. The Supreme Court of the United States has ruled 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 invitation to linger longer) leave.” Florida v. Jardines, 569 U.S. 1 (2013). This implied invitation applies to law enforcement officers just as it does to other citizens. “Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do.” Id. (internal quotation marks and citation omitted).
Where an officer may go. “[T]he knock and talk doctrine does not permit law enforcement to approach any exterior door to a home. An officer’s implied right to knock and talk extends only to the entrance of the home that a reasonably respectful citizen unfamiliar with the home would believe is the appropriate door at which to knock.” State v. Huddy, __ N.C. App. __, 799 S.E.2d 650 (2017). In most cases, that means the front door. See, e.g., State v. Stanley, __ N.C. App. __, __ S.E.2d __, 2018 WL 2207928 (discussed in this prior post; holding that an officer exceeded the permissible scope of a knock and talk by approaching the back door of a residence, notwithstanding the fact that several controlled buys had been conducted at that door). An officer can use appropriate driveways and walkways to reach the front door, but generally can’t deviate from those paths to explore the curtilage.
When an officer may go. There is no implied license for visitors to approach a home in the middle of the night while the occupants are asleep. Accordingly, “a number of courts have found late-night inquiries unreasonable because of the societal expectation that members of the public would not knock on one’s front door in the middle of the night.” State v. Hargett, 795 S.E.2d 828 (2017) (unpublished) (apparently endorsing the principle but finding a late night knock and talk reasonable where a person had just entered the house and officers could smell burning marijuana coming from the home as these factors indicated that people were awake and active in the house). See also People v. Frederick, 895 N.W.2d 541 (Mich. 2017) (holding that police exceeded the permissible scope of a knock and talk by approaching homes at 4:00 a.m. and 5:30 a.m. while all occupants were asleep). Although courts have rejected time-based bright lines, knock and talks between 11:00 p.m. and 6:00 a.m. may receive increased scrutiny.
What an officer may bring. An officer who brings a drug dog, a metal detector, or other detection or inspection tools along to use during a knock and talk exceeds the scope of the implied invitation to approach the home. Florida v. Jardines, 569 U.S. 1 (2013) (“[I]ntroducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is [beyond what a private citizen might do]. There is no customary invitation to do that.”).
How an officer may announce his or her presence. A social visitor would not be expected to bang on the door loudly and for a protracted period of time, or shout out demanding entry. Accordingly, there is likely some limit to how assertively and persistently an officer may knock. See United States v. Jerez, 108 F.3d 684 (7th Cir.1997) (ruling that an interaction became an involuntary seizure rather than a consensual knock and talk when officers went to a quiet motel room after 11:00 p.m., knocked on the door for three minutes, called out “police” and “open up,” then proceeded to knock loudly on the room’s window for another minute or two). There is no simple way to determine how much knocking is too much, and the answer may depend on factors like the time of day, the size of the residence, whether the officer hears movement inside, and other factors. Cf. United States v. Carloss, 818 F.3d 988 (10th Cir. 2016) (in a case in which officers knocked for “several minutes” but not “aggressively,” the court “decline[d] to place a specific time limit on how long a person can knock before exceeding the scope of this implied license”).
Interacting with the occupant. An occupant is not required to answer the door. If one does so, the officer need not advise the occupant of his or her right to refuse further interaction with the officer. See generally Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (“One alternative that would go far toward proving that the subject of a search did know he had a right to refuse consent would be to advise him of that right before eliciting his consent. That, however, is a suggestion that has been almost universally repudiated . . . and we think, rightly so.”). However, the fact that an occupant answers the door does not mean that the occupant has consented to an officer entering the home. See, e.g., United States v. Sabo, 724 F.3d 891 (7th Cir. 2013) (noting that “one does not consent to the government entering his home by simply answering the door,” but finding that an occupant consented to an officer’s entry when he responded to the officer’s request to enter by stepping back and to the side, leaving the door open).
What if an officer sees contraband? During a knock and talk, an officer may see contraband or other incriminating items. Generally, “an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant.” Collins v. Virginia, __ U.S. __, __ S. Ct. __, 2018 WL 2402551 (May 29, 2018). For contraband located inside a residence, a right of access might arise through an occupant’s consent to entry or through exigent circumstances, such as when an officer develops reason to believe that an occupant is attempting to destroy or to consume the contraband. See, e.g., Kentucky v. King, 563 U.S. 452 (2011) (holding that exigent circumstances can justify a warrantless entry to prevent the destruction of contraband even when the exigency is created by an officer knocking on the door). Otherwise, a warrant is required to enter the residence. For contraband located outside the residence, the Supreme Court of North Carolina has held that “[t]he presence of . . . clearly identifiable contraband justifie[s] walking further into the curtilage” to seize the contraband, even without a warrant, consent, or exigent circumstances. State v. Grice, 367 N.C. 753 (2015). However, the may be some tension between Collins and Grice into question, and a cautious officer may wish to seek consent or a warrant before cutting across the curtilage to make a seizure unless exigent circumstances exist.
What if an officer smells contraband? [This section was added in response to reader comments.] Suppose that an officer detects the odor of marijuana coming from inside a residence during a knock and talk. The odor provides probable cause to believe that someone inside is possessing marijuana. Does it also provide exigent circumstances supporting a warrantless entry and search for the drugs? North Carolina’s appellate courts have generally ruled that it does. See, e.g., State v. Marrero, __ N.C. App. __, 789 S.E.2d 560 (2016) (exigent circumstances supported officers’ entry during a knock and talk where, among other factors, the officers had been told that the residence was a “marijuana plantation” and the officers smelled unburned marijuana during the knock and talk; it was “objectively reasonable to conclude that . . . defendant would destroy evidence when [the officers] left the scene to obtain a search warrant, especially given the ready destructibility of marijuana”); State v. Corbitt, 217 N.C. App. 400 (2011) (holding that an officer’s “detection of the odor of burning marijuana and observance of . . . furtive movements in the residence [after the officer knocked on the door] were sufficient to support a reasonably objective belief that evidence of criminal activity was about to be destroyed,” which supported a warrantless entry). But see United States v. Mongold, 528 Fed. Appx. 944 (10th Cir. 2013) (unpublished) (exigent circumstances did not support a warrantless entry where officers “smelled marijuana” during a knock and talk; although there was probable cause to believe that marijuana possession was ongoing, that is not a sufficiently serious crime to support exigency). A cautious officer may limit the scope of any warrantless entry and search to securing the premises while a warrant is obtained. See State v. Tripp, 52 N.C. App. 244 (1981) (“So long as no general warrantless search is undertaken, when there is probable cause to believe that evidence is located in a house and a likelihood that the occupants will remove or destroy it pending issuance of a warrant (i. e., exigency), it is permissible for an officer already legitimately on the premises to secure the area against removal of property pending issuance of a warrant.” (citation and quotation marks omitted)).
Effect of “no trespassing” signs. The posting of a “no trespassing” sign is a pertinent factor when analyzing a knock and talk, but does not necessarily revoke the implied invitation to approach the house. In State v. Pasour, 223 N.C. App. 175 (2012), the court stated that “a homeowner’s intent to keep others out and thus evidence of his or her expectation of privacy in an area may be demonstrated by the presence of ‘no trespassing’ signs.” In other words, a sign “is evidence of the homeowner’s intent that the [area protected by the sign is] not open to the public.” Id. Yet the court recognized that the presence of a sign is “not dispositive,” and later relied on that statement in State v. Smith, 246 N.C. App. 170 (2016) (stating that “we are not aware of any court that has ruled that a sign alone was sufficient to revoke the implied license to approach” a residence and finding that ambiguous evidence of a “no trespassing” sign on the defendant’s property did not preclude a knock and talk). See also United States v. Carloss, 818 F.3d 988 (10th Cir. 2016) (collecting cases and ruling that “no trespassing” signs “posted around the house and on the front door . . . would not have conveyed to an objective officer that he could not approach the house and knock on the front door seeking to have a consensual conversation with the occupants” as such signs are not “talismanic” and do not clearly exclude those with legitimate business at the property such as “the mail carrier, pizza deliverer, or police officer”).
Other issues? Are there other issues that arise during knock and talks? If so, please post a comment and I’ll try to address them.