This question came from an officer in Texas who wanted clarification on knock and talks, and in particular whether police can do a knock and talk at odd hours of the night. The answer runs through a First Circuit case that had been decided just a few months before this was recorded.
Can you do a knock and talk at odd hours of the night?
Okay, the answer is yes, if you have a reason to believe that the occupant would be receptive to uninvited guests. So my friend in Texas, he’s seen other videos where I talk about how courts have held that knocking at odd hours at night, police open the door, and the officer’s going back to write that report and saying, oh, that was a knock and talk. No, it was not. That is not a knock and talk. That was, to say the least, a detention, because what reasonable person would feel free to ignore you?
So if they chose to open that door, they have been essentially detained. They’re even still in their house, but it’s still a form of detention, because the person did not feel free to leave and they submitted to your show of authority.
But going back to the question: is it possible to have a knock and talk late at night? What’s interesting about this question is it’s very timely, because there was a case decided just a few months ago out of the First Circuit, and here’s what happened.
What happened in the First Circuit knock and talk case?
Basically a boyfriend, girlfriend, they’re college students, and their relationship is in turmoil, so they break up. The boyfriend doesn’t take no for an answer, the ex-boyfriend, and is basically harassing her, also in some way stalking her. They end up, after a month or so goes by, they kind of make up, but just as friends, right? Just as friends, at least that’s what she wants. He doesn’t. He wants a relationship again. But she allows him to be a friend, and he starts doing really weird stuff again, and they get into a fight, an argument at her house, and he takes her cell phone and leaves.
Now this happened around three o’clock in the morning or so, and she calls the police. The phone is missing. They believe that obviously he took it, right? So they go to his house. Now they go to his house around 4:00, 5:00 a.m., kind of reading from the case, and they observed lights on in the home and decided to conduct a knock and talk rather than apply for a warrant to go get that phone.
So here the court said the officers entered the property, walked onto the front porch, knocked on the door, and announced that they were police officers seeking to speak with the occupant. No one answered and the officers left. Was that in and of itself a constitutional violation? And the court said no. At this point there was nothing constitutionally infirm about the officers’ conduct, which was expressly permitted by the knock and talk exception to the warrant requirement. So they basically did what the public could do.
Why did the lights being on matter?
I want to let you know though, a key to me in this case is that the lights were on, and that they knew that French, the defendant here, was just at the girlfriend’s house recently. So he was up. They knew he was up recently, the lights are on, and it seems reasonable that maybe French would like to talk to the police and settle the matter. Like, oh no, I don’t have her cell phone, she probably left it in her car or something. So far, so good.
Let’s also pause for a second and let me give you the citation. The citation for this case is French versus Merrill, M-E-R-R-I-L-L, and the citation is 15 F.4th 116, First Circuit, 2021.
When does a knock and talk stop being a knock and talk?
The problem is though, the officers in that case went back to the home multiple times, approximately three times. And backing up during the case, they actually saw French the next time open up his blinds, look through and again see the police, and shut the blinds, and so forth. So they knew that he did not want to talk to the police, but they kept coming back, and also being on his curtilage and trying to get him to talk.
The court found that it was not a knock and talk when police know, whether expressly or implicitly. Like expressly: hey, I don’t want to talk, leave my property, you better go. Even if you have probable cause, if you don’t have exigent circumstances, if you don’t have some emergency, imminent destruction of evidence, the suspect will likely escape before getting that warrant, you better have facts on it, right? There’s some danger to the officers or others. If you don’t have some legitimate exigency where, if you do not act, something imminently will happen, right, bad will happen, then you’ve got to leave.
There is no right for law enforcement, even when doing something, conducting serious investigations, there is just no right for law enforcement to linger around this person’s curtilage without some other exigency or consent. Well, if they told you to leave expressly, then you gotta leave. Implicitly is what’s going on here. French is looking at the cops through the window and still refuses to answer the door. He’s basically sending the cops a message: leave, I don’t want to talk to you. And if that’s the case, according to the U.S. Supreme Court too, in a case called Jardines, you’ve got to leave.
Did the officers get qualified immunity?
And so here the court found that those three extra intrusions were violations of the Fourth Amendment. And are you sitting down? You ready for the next part? No qualified immunity. The court found that a reasonable officer doing their job in 2021, at least in the First Circuit, would have understood that what they were doing violated the Constitution, and therefore there is no qualified immunity. Therefore French is going to get paid. French is going to get money for this.
How much money, I don’t know. Is this a million dollar lawsuit? I hope not. But is it going to cost some money, at the end of the day, from those officers, from the officers in their agency? The answer is yes.
What counts as exigency for a late night knock and talk?
So here’s the takeaway. If you are going to do a knock and talk at odd hours, and odd hours, you define it for me, I don’t know, 10 o’clock at night, I don’t know, before 6 a.m., but if you’re going to do a knock and talk at odd hours and you do not have exigency, some form of emergency. I mean, the guy’s car is blocking somebody’s driveway and that person cannot go to work, that’s exigency, right? That’s an ongoing nuisance, handle business. You got the loud party call, that’s exigency, it’s an ongoing nuisance. You have a person who you believe committed a violent crime and they have evidence maybe on their person, blood, trace evidence and so forth, then those rules apply.
But if all you want to do is a regular knock and talk and you do not have exigency, I would like for you to articulate a reason why you believe that that person inside that home would be receptive to you being there, be receptive to a person of the public knocking on their door. Here in the First Circuit they found that because he was up recently, he had his light on, that that was good to go. I like it. I think, that’s not much evidence there, but it’s something.
Should you knock on a door at three o’clock in the morning?
But if lights are out and you don’t hear not even a mouse, right, no lights, no sound, no other indication that they were just up recently, then I would not conduct a knock and talk at a house at three o’clock in the morning. I’m not doing it. Because to me it violates the person’s curtilage, it violates the knock and talk rules. I ain’t going up there. I’ll go back there the next day, or send another officer on day shift to go try to make contact. But I’m not doing it, because I think the message is clear from these courts: don’t mess with people’s curtilage.
And so the First Circuit is reminding everybody of that. You’ve got to play by the rules. Even though you’re on graveyard and you can’t go back in the daytime, go find a partner and go back in the daytime. All right, that’s my message for you, hopefully it helps.
The short version
- The answer is yes, if you have a reason to believe that the occupant would be receptive to uninvited guests.
- If they chose to open that door, they have been essentially detained. They’re even still in their house, but it’s still a form of detention.
- A key to me in this case is that the lights were on, and that they knew French was just at the girlfriend’s house recently.
- There is just no right for law enforcement to linger around this person’s curtilage without some other exigency or consent.
- If they told you to leave expressly, then you gotta leave. Implicitly is what’s going on here.
- No qualified immunity. Therefore French is going to get paid.
- If lights are out and you don’t hear not even a mouse, then I would not conduct a knock and talk at a house at three o’clock in the morning. I’m not doing it.
- Even though you’re on graveyard and you can’t go back in the daytime, go find a partner and go back in the daytime.
Related from Blue to Gold
- Constitutional Considerations of Warrantless “Surround and Call-Outs”
- Can Officers Go Check the VIN of a Potentially Stolen Vehicle?
- Security Door Knock and Talk
This article is an edited transcript of Roadside Chat Ep. #187. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
