After Fielding Third Case On Point, Court Finally Decides Curtilage-Violating ‘Knock And Talks’ Are Clearly Unconstitutional

Tech Dirt – by Tim Cushing

You can violate Constitutional rights and still dodge liability. You just have to do it in a way that doesn’t immediately summon precedential cases on point. That’s the beauty of qualified immunity, the doctrine the Supreme Court decided was needed because expecting law enforcement to operate within the confines of the Constitution is just too much to ask.  

Fairfield County, Ohio’s SCRAP (Street Crime Reduction and Apprehension Program) unit plays fast and loose with the Constitution — and with the county’s apparent blessing. A case examined by the Sixth Circuit Court of Appeals details a search the SCRAP chose not to call a search that resulted in the discovery of marijuana plants — and further contraband once a warrant was secured. The defendants — Neil Morgan and Anita Graf — asked for the evidence to be suppressed. They argued the initial “knock and talk” violated the Fourth Amendment, tainting the more thorough search that followed.

Acting on a tip, the county’s SCRAP unit went to the defendants’ residence and basically surrounded it, placing two officers approximately five feet from the house in the backyard. It was from this vantage point the marijuana plants on the second floor balcony were spotted — something not visible to those approaching the house from more “public” directions. The court agreed and vacated their sentences. This lawsuit against the officers and the county ensued.

The Sixth Circuit Court notes [PDF] this knock-and-talk tactic — surrounding the house prior to knocking — clearly violated the Fourth Amendment.

Under that commonsense approach, the area five-to-seven feet from Morgan’s and Graf’s home was within the home’s curtilage. Even when the borders are not clearly marked, it is “easily understood from our daily experience” that an arm’s-length from one’s house is a “classic exemplar of an area adjacent to the home and ‘to which the activity of home life extends.’” The right to be free of unwarranted search and seizure “would be of little practical value if the State’s agents could stand in a . . . side garden and trawl for evidence with impunity.”And the right to privacy of the home at the very core of the Fourth Amendment “would be significantly diminished” if the police—unable to enter the house—could walk around the house and observe one’s most intimate and private moments through the windows.

But not only were the SCRAP unit members positioned on the sides of the house, they were in the backyard, too. Indeed the backyard is where they discovered the marijuana plants, the cause of the injuries alleged by Morgan and Graf. And “the law seems relatively unambiguous that a backyard abutting the home constitutes curtilage and receives constitutional protection.” Daughenbaugh, 150 F.3d at 603; see also United States v. Jenkins, 124 F.3d 768, 773 (6th Cir. 1997). That is true especially when, as here, there are no neighbors behind the house and the backyard is not visible from the road.

The court points out there’s nothing ambiguous about this particular violation in this jurisdiction: backyards and standing only a few feet from a house are both intrusions that must be supported by something more than the officers had when they approached the residence. The SCRAP team had no warrant, but it went about its business as though it had this permission slip to bypass Fourth Amendment protections.

The county argued no warrant was needed, citing officer safety and exigent circumstances. The court says both assertions are ridiculous.

Instead of showing a particular and immediate risk, the county argues that concern for officer safety generally allows police to enter the curtilage and form a perimeter. Yet rather than citing a case supporting that position, the county argues that drugs and guns often go together. Maybe. But that is no more than a general statement of correlation; and generic possibilities of danger cannot overcome the required particularized showing of a risk of immediate harm. See id. at 961. But, even if the officers knew that Morgan had a weapon, “[t]he mere presence of firearms does not create exigent circumstances.” United States v. Johnson, 22 F.3d 674, 680 (6th Cir. 1994).

The court then goes further: to apply the county’s “officer safety” theory, the whole Fourth Amendment would need to be thrown out.

What is more, the county’s position would create an exception that would swallow the rule. It might be safer for the police to enter the curtilage to form a perimeter; it would certainly be easier to stop someone who might flee by establishing some sort of barrier to that flight. Indeed, many (if not most) Fourth Amendment violations would benefit the police in some way: It could be safer for police without a warrant to kick in the door in the middle of the night rather than ring the doorbell during the day, and peering through everyone’s windows might be a more effective way to find out who is cooking methamphetamine (or engaging in any illegal behavior, for that matter). But the Bill of Rights exists to protect people from the power of the government, not to aid the government. Adopting defendants’ position would turn that principle on its head.

The county also tried to argue the search wasn’t a search because the officers said it was a “knock and talk,” despite the presence of officers inside the curtilage. No good, says the Sixth Circuit.

The subjective intent of officers is irrelevant if a search is otherwise objectively reasonable, but subjective intent cannot make reasonable an otherwise unreasonable intrusion onto a constitutionally protected area.

The court says the SCRAP unit had no warrant, no exigent circumstances, and no other plausible warrant exception to offer. Open and shut for qualified immunity, you would think, but apparently no one violated rights in this particular fashion previously, so…

Despite these long-settled standards, one case from this circuit, although incorrectly decided, requires that we grant qualified immunity. That case, Turk v. Comerford, decided within a month of the ‘knock and talk’ in this case, found that the law was not clearly settled against a factual background that was, in every material way, the same as here.

Oh wait. Someone did violate rights this way. Something directly on point. The court settled the law, right? Clearly established going forward and all that? Nope. The defendants lose because the court failed to do its job twice.

Although Hardesty and Turk are outliers, Morgan and Graf cannot overcome their burden of showing that the law was clearly established at the time of the search in this case. In those two cases, this court should have reaffirmed long-settled Fourth Amendment principles. Cf. Rogers v. Pendleton, 249 F.3d 279, 289–90 (4th Cir. 2001) (denying qualified immunity and reasoning that allowing access to curtilage based on reasonable suspicion would “eviscerate the principle of Oliver and Dunn that the curtilage is entitled to the same level of Fourth Amendment protection as the home itself”). But it did not.

So, because the court screwed up, the officers get their qualified immunity — despite “knock and talk” cases directly on point being (mis)handled in this circuit. The county, however, does not get off so easily.

It is uncontested that the county’s policy required officers to enter “onto the back” of any property during every ‘knock and talk.’ And as acknowledged by the sheriff and members of the SCRAP unit, that policy did not give any leeway for the officers to consider the constitutional limits that they might face. The SCRAP unit did not weigh the characteristics of properties to determine what parts of the properties were curtilage (and thus off limits). The policy gave no weight to the core value of the Fourth Amendment—one’s right to retreat into his or her home “and there be free from unreasonable government intrusion.” Collins, 138 S. Ct. at 1670 (quoting Jardines, 569 U.S. at 6). Quite the opposite: the policy commanded that the SCRAP unit ignore those limits. It was not one employee’s interpretation of a policy that caused Morgan’s and Graf’s injuries—the policy was carried out precisely as it was articulated. And so, because the county’s policy itself was the cause of Morgan’s and Graf’s injury, the county should be held liable under Monell.

Third time’s the charm. The next litigant will be able to move forward with their case should officers decide putting someone in the backyard is justified during a knock-and-talk. But for the three previous sets of plaintiffs, the law managed to remain “unsettled” until just now, even with blatant Fourth Amendment violations the county will have to answer for in court.

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