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Expectation of Privacy — Threshold of Residence

State v. James L. Larson, 2003 WI App 150
For Larson: Rex Anderegg

Issue/Holding: A police officer’s stepping into the threshold of an apartment, preventing the occupant from closing the door, amounted to an “entry,” thereby triggering the fourth amendment warrant requirement. ¶¶10-11, following State v. Johnson, 177 Wis. 2d 224, 227, 501 N.W.2d 876 (Ct. App. 1993); and noting that “(t)he police practice of putting a foot in the doorway appears to be a common and widespread practice, at least in Wisconsin….” ¶11 n. 3. And, United States v. Santana, 427 U.S. 38 (1976) (by standing in her doorway, Santana exposed herself to public view and thereby obviated warrant requirement), distinguished on basis that Larson wasn’t exposed to view until he opened door in response to police knock. ¶14, adopting Cox v. State, 696 N.E.2d 853, 858 (Ind. 1998).

The police may have possessed probable cause to arrest Larson (for drunk driving), but they had neither a warrant nor, under Welsh v. Wisconsin, 466 U.S. 740 (1984), exgient circumstances to justify entry into Larson’s home. A potentially complex welter of issues is presented. In the first place, Santana has led to a good deal of litigation, with differing results. For a survey of cases, see State v. Mann, 76 Conn. App. 48, 818 A.2d 122 (2003). Terming Santana the “doorway exception” to the warrant requirement, Mann took the view adopted by Larson and Cox, that partially opening door in response to police knock isn’t relinquishment of privacy, but the case was overruled, in State v. Mann, CT SCt No. SC 16996, 10/5/04, which holds that when someone voluntarily opens a door, the police may enter without a warrant or probable cause if they have reasonable suspicion that the person is armed and dangerous. Showing that labels matter, “doorway exception” doesn’t appear in the opinion; instead, the situation is deemed an exemplar of “knock and talk” practice — which shifts rhetorical emphasis away from the warrant requirement toward a consenusal encounter:

[W]hen police officers knock on the door of a dwelling and an occupant voluntarily opens the door, the resulting encounter, in the absence of coercive police conduct, generally is deemed to be consensual. … Moreover, as a general matter, no objective level of suspicion is required for investigating officers merely to knock on the door of a person’s residence…


Although the United States Supreme Court has yet to apply the Terry doctrine to ‘‘knock and talk’’ investigations, the court has extended the reasonable suspicion standard announced in Terry to other contexts involving possible jeopardy to the immediate safety of law enforcement officers….

Long and Buie both demonstrate that when the immediate safety of law enforcement officers is in jeopardy, the reasonableness of a protective search is determined by balancing the need to conduct the search against the nature of the intrusion occasioned by the search…. According to the defendant, the police lawfully cannot cross the threshold of a home without either a warrant or probable cause and exigent circumstances. We disagree.

In view of the state’s weighty interest in promoting the safety of its police officers and the diminished expectation of privacy that the occupant of a dwelling has in what the police can observe through a door that that occupant voluntarily has opened, we conclude that it is constitutionally permissible for the police to conduct a limited patdown search of the occupant, even though that occupant is located inside the doorway, if the search is supported by a reasonable and articulable suspicion that the occupant is armed and dangerous….

… In sum, we conclude only that when police officers knock on a door as part of a lawful investigation, and the door is voluntarily opened by an occupant, the officers may enter the dwelling to patdown the occupant for weapons if a reasonably prudent officer would be warranted in believing, on the basis of specific and articulable facts, that the person with whom the officer is dealing is armed and poses an immediate danger.

For an interesting approach — in effect: “knock and talk” practice must be scrutinized for its reasonableness, such that police may not impermissibly create the very exigency on which they rely for nonconsensual entry — U.S. v. Gomez-Moreno, 5th Cir No. 05-20921, 2/12/07 (“The purpose of a ‘knock and talk’ is not to create a show of force, nor to make demands on occupants, nor to raid a residence. Instead, the purpose of a “knock and talk” approach is to make investigatory inquiry or, if officers reasonably suspect criminal activity, to gain the occupants’ consent to search.); U.S. v. Coles, 3rd Cir No. 04-2134, 2/9/06; State v. Frye, 2007-Ohio-6941 (presence of 3 officers rendered knock and talk coercive thus invalidating putative consent to search). Moreover, when they knock the police have to have the right to be at that spot, typically under the “implied invitation” doctrine (i.e., the public at large has an implied invitation to approach and knock at the door). See, e.g., Leach v. Commonwwealth, KY App NO. 2006-CA-001481-MR, 7/20/07 (“the officer may [execute knock-and-talk at back door] only if the front door is inaccessible or if they first knocked on the front door and got no response”). Such points as those aside, though, the general rule is that “a ‘knock and talk’ is a consensual encounter” and doesn’t require reasonable suspicion,U.S. v. Cruz-Mendez, 10th Cir No. 05-4296, 11/6/06; general discussion in People v. Rivera, Cal SCt No. S138898, 6/14/07 (because knock and talk is consensual encounter, doesn’t matter that genesis was uncorroborated, anonymous tip).

Speaking of door-opening: this is a cert-worthy issue (i.e., whether entry of a home on less than probable cause is permissible), hence the lengthy excerpt. And, both because “knock and talk” is a common practice and also because it’s easy to imagine the police manufacturing reasons for fear once the door is opened, the issue is sure to come up. The “knock and talk” situation isn’t really controlled by Larson — because exigent circumstances simply weren’t present in that case — but it is inserted here because Santana intersects the issues: Mann reads that case to mean that “the occupant of a residence who voluntarily opens the door of that residence has no reasonable expectation of privacy in what can be seen through the open door”; hence the occupant’s very diminished expectation of privacy can be easily overriden under a balancing test. If nothing else, Larson can be read to take a different approach, ¶14. Other courts are split: see U.S. v. Mowatt, 4th Cir No. 06-4886, 1/25/08 (police demand that occupant open door resuled in “search” when he complied; distinguishing United States v. Cephas, 254 F.3d 488 (4th Cir. 2001) where no “search” occurred because occupant simply opened door upon knocking, without being commanded);State v. Shellenbarger, Idaho Cr. App. No. 29561, 5/6/04 (no link available) (similar: distinguishing voluntarily opening door in response to police-initiated request from police “compulsion” as where the police attempt to break down the door and command the occupant to leave); and State v. Cranford, 2005-Ohio-1904, ¶¶14-18 (merely opening door to police knock didn’t expose occupant to “public view,” so as to allow police to enter and make warrantless arrest, at least where occupant didn’t actually “step[] into the open doorway or exit[] her home”). Also see Hadley v. Williams, 7th Cir. No. 03-1530, 5/14/04 (suggesting that police can’t simply seize anything they happen to see “when the front door swings open in response to” their knock; but further suggesting that under Santana, and exigent circumstances doctrine, they “can take steps to secure the evidence or the person”). Note, again, that this distinction between compelled and voluntary door-opening is not part of the Larson holding.

For additional authority construing officer’s insertion of foot far enough into threshold to prevent occupant from closing door as entry of residence, see State v. Maland, Idaho SCt No. 29136, 2004 Op. No. 106, 11/24/04:

… It was not necessary for the officer’s entire body to cross the threshold in order to constitute an entry under the Fourth Amendment. “[A]ny physical invasion of the structure of the home, ‘by even a fraction of an inch,’ [i]s too much.” Kyllo v. United States, 533 U.S. 27, 37 (2001). [¶] Once Maland attempted to terminate the conversation by closing the door, the female officer intruded into his residence in order to seize him by inserting her foot through the threshold to keep him from closing the door.

Keep in mind that in Maland — as in Larson — the police had neither warrant nor exigent circumstances. With that important proviso in mind, the following observation by Malandseems to be consistent with Larson:

“A person does not abandon this privacy interest in his home by opening his door from within to answer a knock.” United States v. Berkowitz, 927 F.2d 1376, 1387 (7th Cir. 1991). In the case where the police enter a person’s home, without his/her consent, before announcing their authority to arrest.

the arrestee has not forfeited his privacy interest in the home; he has not relinquished his right to close the door on the unwanted visitors. See McCraw, 920 F.2d at 229; McKinney v. George, 726 F.2d at 1188 (suggesting that a person answering the police’s knock may retreat into his home, and that police may not then enter without a warrant to arrest him); LaFave, supra, § 6.1(e) at 591.

927 F.2d at 1387.

See also Cummings v. City of Akron, 6th Cir No. 03-3259, 7/22/05 (“In contrast to Warden and its progeny, Cummings did not commit a crime in a public place and attempt to flee into his house; in contrast to Santana, Cummings never fully exposed himself to the public view, given that he only opened the door very slightly, and only at the request of the police.”).Variant: what about when the police ask the soon-to-be-arrested resident to step outside upon answering their knock? See U.S. v. Thomas, 6th Cir No. 04-6148, 12/1/05, for discussion as to when coercive “request” by police amounts to illicit “constructive entry”; but, holding on its facts that mere request to come outside leads to consensual encounter.

If the interior, “solid” door is open but the screen is closed, the occupant retains an expectation of privacy: U.S. v. Arellano-Ochoa, 9th Cir No. 04-30545, 8/31/06 (“Where the screen door is the only barrier between the inside of the house and the outside, the police cannot open the screen door without consent or some exception.” But: court finds exigent circumstances on particular facts). Like reasoning, if different result on facts: Christian v. State, MD Ct. Spec. App. No. 987, 1/2/07 (expectation of privacy turns on “whether the screen door is acting as the perimeter barrier to the residence”). But see U.S. Walker, 10th Cir No. 05-2287, 1/31/07 (describing Areallano-Ochoa as dicta, and concluding that “opening the storm door to knock on the inner door, even though the inner door was partially open, was not a Fourth Amendment intrusion because such action does not violate an occupant’s reasonable expectation of privacy”).

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