Jeremy Carroll v. Andrew Carman, et ux., USSC No. 14-212, 11/10/14 (per curiam), reversing and remanding Carman v. Carroll, 749 F.3d 192 (3rd Cir. 2014); docket
A police officer being sued under 18 U.S.C. § 1983 for violating the Fourth Amendment doesn’t lose qualified immunity as a matter of law because he went to the back door of the plaintiff’s home instead than the front door, as it is not clearly established that an officer doing a “knock and talk” must go the front door.
Responding to a police dispatch, Carroll and another officer went to the Carman’s home to search for a man who had stolen loaded handguns and a car. On arriving at the Carmans’ residence, the officers bypassed the front door and went directly to the back of the house and onto a deck adjoining the kitchen. On the deck, a scuffle ensued between Carroll and Andrew Carman.
Carroll claimed he was entitled to qualified immunity, saying he didn’t violate the Carmans’ Fourth Amendment rights because he entered into their curtilage, the area immediately surrounding their home, as part of a legitimate “knock and talk.” (A “knock and talk” is where “police go to people’s residences, with or without probable cause, and knock on the door to obtain plain views of the interior of the house, to question the residents, to seek consent to search, and/or to arrest without a warrant, often based on what they discover during the ‘knock and talk.’” State v. Phillips, 2009 WI App 179, ¶11 n. 6, 322 Wis.2d 576, 778 N.W.2d 157 (citing Craig M. Bradley, “Knock and Talk” and the Fourth Amendment, 84 Ind. L.J. 1099 (2009)). But the Third Circuit held the “knock-and-talk” exception to the warrant requirement “requires that police officers begin their encounter at the front door, where they have an implied invitation to go.” 749 F.3d at 199. Thus, the court held, Carroll wasn’t entitled to qualified immunity, which isn’t available when a official violates a constitutional right that was “clearly established” at the time of the challenged conduct.
The Supreme Court summarily reverses because there is no such clearly established rule when it comes to doing a “knock and talk.” The case relied on by the Third Circuit, Estate of Smith v. Marasco, 318 F.3d 497 (3rd Cir. 2003), held only that an unsuccessful “knock and talk” at the front door does not automatically allow officers to go onto other parts of the property; “[i]t did not hold, however, that knocking on the front door is required before officers go onto other parts of the property that are open to visitors. Thus, Marasco simply did not answer the question whether a ‘knock and talk’ must begin at the front door when visitors may also go to the back door.” (Slip op. at 5). Moreover, other courts, including the Seventh, in United States v. James, 40 F.3d 850 (7th Cir. 1994), vacated on other grounds, 516 U.S. 1022 (1995), have held police officers didn’t violate the Fourth Amendment when they sought to contact the residents of a home by knocking on what might not be considered the traditional front door. (Slip op. at 6-7).
Note that the Court doesn’t resolve the parameters of the “knock and talk” procedure: “We do not decide today whether those cases were correctly decided or whether a police officer may conduct a ‘knock and talk’ at any entrance that is open to visitors rather than only the front door. ‘But whether or not the constitutional rule applied by the court below was correct, it was not “beyond debate.”’ … The Third Circuit therefore erred when it held that Carroll was not entitled to qualified immunity.” (Slip op. at 7).
So, there’s no absolute requirement that police doing a “knock and talk” go to the front door to contact the residents or occupants of a home. This issue is relatively undeveloped in Wisconsin, as noted here, discussing County of Calumet v. Ryan, No. 2011AP490 (Wis. Ct. App. Dec. 14, 2011) (unpublished), where the police went to the back door rather than the front door. As with other Fourth Amendment issues, expect the result to turn on whether the facts establish that a backyard is curtilage—on which see this post, discussing State v. Wilson, 229 Wis. 2d 256, 600 N.W.2d 14 (Ct. App. 1999).
Florida v. Jardines is applicable to the issue of a knock-and-talk. Distilling Jardines to its basic rationale, the Supreme Court essentially outlined the following test when analyzing police’ conduct, when no warrant is in hand, as it relates to a home:
1) Did the police officers’ entry intrude or take place upon a “constitutionally protected area?” -and-
2) If yes, whether it was “accomplished through an unlicensed physical intrusion?”
If both parts are answered in the affirmative, then the intrusion, consequently, is unconstitutional. Essentially, the quality of police action is measured by what the general public’s license is as established by tradition and custom. Surely its not generally accepted to walk into the back-yard area of someone’s home rather than the front-door (absent clear – express or implied- invitation otherwise). Similar rationale would apply, as well, to police who are rather persistent in their attempts to contact persons inside their home (i.e., loud knocking/banging on door, shining lights in windows/doors, repeatedly knocking for several minutes, etc.) because this activity would go beyond the standard of what “any private citizen might do.”