COURT HOLDS KNOCK AND TALK VALID DESPITE NO TRESPASSING SIGNS
by Brian S. Batterton, Attorney
©2016 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On March 15, 2016, the Eleventh Circuit Court of Appeals decided the United States v. Carloss [i], which discussed the constitutionality of police going past “no trespassing” signs to the front door of a house to conduct a knock and talk. The relevant facts of Carloss, taken directly from the case, are as follows:
Ashley Stephens, an agent with the federal Bureau of Alcohol, Tobacco and Firearms, received several tips that Carloss, a previously convicted felon, was unlawfully in possession of a firearm, possibly a machine gun, and was selling methamphetamine. In order to investigate these tips, Agent Stephens, along with Tahlequah, Oklahoma police investigator Elden Graves, went one afternoon to the home where Carloss was staying to talk with him. The home was a single-family dwelling located in a "pretty old area" in the "middle" of Tahlequah. (R. v.2 at 71-72.) There was no evidence of any fence or other enclosure around the house or yard, but there were several "No Trespassing" signs placed in the yard and on the front door. Specifically there was a "No Trespassing" sign on an approximately three-foot-high wooden post located beside the driveway, on the side farthest from the house, and another sign tacked to a tree in the side yard, both stating "Private Property No Trespassing." (Aplt. Add. Def. Ex. 2-5, 7.) There was a sign, on a wooden pole in the front yard along the side of the driveway closest to the house, and a sign on the front door of the house, both stating "Posted Private Property Hunting, Fishing, Trapping or Trespassing for Any Purpose Is Strictly Forbidden Violators Will Be Prosecuted." (Id. Ex. 1, 6.) These signs were professionally printed, with yellow or orange lettering against a black background. Although the officers testified that they did not recall seeing any of these signs on the day they went to talk to Carloss, the district court found that the signs were there on that day, and that is not contested on appeal.
When the two officers went to the house to speak with Carloss, they drove into the driveway, parked, walked to the front door, and knocked "for several minutes." (R. v.2 at 74.) In response to their knocks, the officers could hear movement inside the house, but no one answered the front door. Instead, "a short time later," Heather Wilson exited the back door of the house and met the officers in the side yard. (Id. at 17.) The officers explained why they were there and asked who else was in the home. Wilson responded that Carloss, Earnest Dry, and Katy Homberger were inside.
At about that time, Carloss exited the back door of the house and joined the officers and Wilson in the side yard. At no time did either Wilson or Carloss point out the "No Trespassing" signs to the officers or ask the officers to leave. The officers told Carloss that they suspected he had a machine gun. Carloss responded that he could not be around "ammunition" because of his prior criminal conviction. (Id. at 18.) The officers then asked who lived in the house; Carloss responded that he had a room there, but Earnest Dry owned the house. (Earnest Dry's mother, Diana Fishinghawk, was the actual owner.) When the officers asked Carloss if they could search the home, Carloss told them he would have to get "the man of the house," referring to Dry. (Id.) As Carloss started to go inside, apparently to get Dry, the officers asked if they could go in with Carloss; he said, "sure." (Id. at 19.)
Carloss and the officers entered the back door, went through a storage or "mud" room into a room that Carloss identified as his. (Id. at 34.) In Carloss's room, the officers saw drug paraphernalia and a white powder residue that appeared to be methamphetamine.
The officers waited with Carloss in his room; Dry and Homberger soon entered. The officers identified themselves, explained to Dry why they were there and asked if they could search the house. Dry asked if they had a warrant; they did not. After calling his attorney, Dry declined to let the officers search the house and instead asked them to leave. They did so but, based on the drug paraphernalia the officers saw in Carloss's room, they obtained a warrant to return and search the house. During the search pursuant to that warrant, officers found "multiple methamphetamine labs" and lab components, a loaded shotgun, two blasting caps, ammunition, and other drug paraphernalia. [ii]
Carloss filed a motion to suppress the evidence in this case, and it was denied. He pled guilty with the right to appeal the denial of his motion to suppress. He then filed a timely appeal to the Tenth Circuit Court of Appeals.
On appeal, there were basically three main issues. The issues were as follows:
- Did the agents violate the Fourth Amendment by knocking on the front door to conduct a knock and talk in light of the Supreme Court ruling in Florida v. Jardines?
- Did the agents violate the Fourth Amendment when they went past “no trespassing” signing to knock on the front door?
- Did the agents violate the Fourth Amendment when they asked to go in the house with Carloss when he wanted to go in to find the homeowner regarding consent to search?
Issue One: Did the agents violate the Fourth Amendment when they went to the front door to conduct a knock and talk in light of Florida v. Jardines?
The court first examined applicable legal principles for this issue. The court noted that, prior to Jardines, knock and talks were held to be legal under the Fourth Amendment. The court stated:
This court has held, prior to Jardines, that police officers do not violate the Fourth Amendment by going to the front door of a home and knocking, seeking to speak with the occupants. Specifically addressing an investigative knock-and-talk—during which police officers knock on the door of a home seeking to speak with the occupants, see United States v. Carter, 360 F.3d 1235, 1238 (10th Cir. 2004)—this court has held that, "[a]s commonly understood, a 'knock and talk' is a consensual encounter and therefore does not contravene the Fourth Amendment, even absent reasonable suspicion." United States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006);… [iii] [emphasis added]
The court then examined what the Supreme Court actually intended in Jardines. They noted that Jardines was not a knock and talk case, but rather a canine sniff case. Specifically, in Jardines, officers took a drug sniffing canine onto a front porch to sniff for drug odors that originated inside the residence. In discussing Jardines, the court stated:
The Jardines Court held that the license to approach a home and knock on the front door does not extend to permitting an officer to perform a search of the interior of the house from the porch with the enhanced sensory ability of a trained dog. 133 S. Ct. at 1416…In reaching that conclusion, however, Jardines reiterated that a knock-and-talk itself is not a search for Fourth Amendment purposes: "[I]t is not a Fourth Amendment search to approach the home in order to speak with the occupant, because all are invited to do that. The mere purpose of discovering information in the course of engaging in that permitted conduct does not cause it to violate the Fourth Amendment." Id. at 1416 n.4. [iv] [emphasis added]
Lastly, Tenth Circuit noted that they have upheld knock and talks since Jardines. Specifically, the court stated:
Since Jardines, the Tenth Circuit has continued to uphold the constitutionality of knock-and-talks, based on the implied license recognized in Jardines that allows police officers, like members of the public, to approach the front door of a home and knock. See United States v. Shuck, 713 F.3d 563, 567 (10th Cir. 2013) ("A 'knock-and-talk' is a consensual encounter" that "does not contravene the Fourth Amendment.") (internal quotation marks omitted); see also McDowell, 713 F.3d at 574. [v] [emphasis added]
The court of appeals also noted that the agents in Carloss’ case did not take anything to enhance their senses or tell them what was taking place inside the home. Rather, they knocked on the door to speak to the occupants, just as anyone could do. As such, even in light of Jardines, a knock and talk does not violate the Fourth Amendment. As stated by the court:
Jardines recognizes an implied 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." 133 S. Ct. at 1416. On this basis, "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. (quoting King, 131 S. Ct. at 1862). [vi] [emphasis added]
As such, the knock and talk was not a violation of the Fourth Amendment, even in light of Jardines.
Issue Two: Did agents violate the Fourth Amendment when they went past the “No Trespassing” signs for the purpose of knocking on the front door for a knock and talk?
On appeal, Carloss argued that the “no trespassing” signs he placed on his property and at his front door revoked the implied license that would normally permit anyone, including the police, to approach and knock on the front door. The signs in Carloss’ case specifically stated “Posted Private Property Hunting, Fishing, Trapping, or Trespassing for Any Purposes is Strictly Forbidden Violators Will Be Prosecuted.” [vii] These signs were located on the driveway, the front yard, side yard and on the front door.
Regarding “no trespassing” signs, the court stated:
As an initial matter, just the presence of a "No Trespassing" sign is not alone sufficient to convey to an objective officer, or member of the public, that he cannot go to the front door and knock. Such signs, by themselves, do not have the talismanic quality Carloss attributes to them. See Davis v. City of Milwaukee, No. 13-CV-982-JPS, 2015 WL 5010459, at *13 (E.D. Wis. Aug. 21, 2015) (indicating, post-Jardines, that "signs stating 'Private Property' or 'No Trespassing' do not, by themselves, create an impenetrable privacy zone"); …Carloss has not cited, nor can we find, any post-Jardines authority holding that a resident can revoke the implied license to approach his home and knock on the front door simply by posting a "No Trespassing" sign. [viii] [emphasis added]
The court also noted that no trespassing signs have been held to not prohibit an officer from entering an “open field” type of area (non-curtilage).
Further, the court noted that the sign in Carloss’ case was somewhat ambiguous in that it seemed to prohibit various types of recreational activities (hunting, trapping, fishing). Thus, a reasonable officer would not believe the sign prohibited him or her from approach the front door for a knock and talk. The court then stated:
Those signs would not have conveyed to an objective officer, or member of the public, that he could not walk up to the porch and knock on the front door and attempt to contact the occupants. It is well-established that "No Trespassing" signs will not prevent an officer from entering privately owned "open fields." See Jardines, 133 S. Ct. at 1414; Oliver v. United States, 466 U.S. 170, 182-83 (1984)… [ix]
…We conclude that, under the circumstances presented here, an objective officer would not have understood that the implied license he would ordinarily have to approach the porch and knock on the front door of a home had been revoked at this house. Therefore, the officers did not violate the Fourth Amendment when they went onto the porch and knocked on the front door of the house in which Carloss lived. See United States v. Bearden, 780 F.3d 887, 890-91, 893-94 (8th Cir. 2015) (holding that officers did not violate the Fourth Amendment by driving through an open gate with a "No Trespassing" sign on their way to entering a home's curtilage in order to conduct a knock-and-talk);
As such proceeding past the “no trespassing” signs to conduct a knock and talk did not violate the Fourth Amendment.
It should be noted that Carloss, within this issue, also argued that the officers knocked too long (were too persistent) when nobody promptly answered the door. The court held that knocking for “several minutes” did not violate the Fourth Amendment when the officers could tell people were inside but did not make demands for the occupants to open the door and did not act aggressively.
Issue Three: Did the agents violate the Fourth Amendment when they went in the house with Carloss when he went inside to ask the homeowner regarding consent to search?
Carloss argued in this issue that his consent to go into the house with him was involuntary because the agents may have told him that they would not let him enter the home without them. Further, he argued that since he told the agents that he was not the homeowner, a reasonable agent should have realized that he could not give consent for them to enter the residence with him.
Regarding the facts surrounding Carloss’ consent, the court noted that the agents were wearing plain clothes, spoke in a casual manner (not overbearing), never demanded entry into the residence, and did not retain any of Carloss’ personal property during the encounter. Considering these facts, the court held that Carloss’ consent for the agents to accompany him inside while he looked for the homeowner was voluntary, and the agents did not violate the Fourth Amendment.
The court of appeals then affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 13-7082 (10th Cir. Decided March 11, 2016)
[ii] Id. at 2-5
[iii] Id. at 6
[iv] Id. at 8
[v] Id. at 9
[vi] Id. at 10
[vii] Id. at 14
[viii] Id. at 12
[ix] Id. at 14-16