Case o' The Week: Lundin - "I hear you knocking . . . "
United States v. Lundin, 2016 WL 1104851 (9th Cir. Mar. 22, 2016), decision available here.
Players: Decision by Judge W. Fletcher, joined by Judges Berzon and Bea, upholding suppression decision by ND Cal D.J. Tigar. Big win for N.D. Cal Chief Ass’t Geoff Hansen and Research and Writing Attorney Steve Koeninger.
Facts: Cops learned of a request for the arrest of Eric Lundin. Id. at *2. At 4:00 a.m. they went to Lundin’s home, stood on his porch, and knocked loudly on his door. Id. They heard crashing behind the house, ran around, and discovered Lundin in the backyard. Id.
A search in the backyard and patio revealed a pair of handguns that matched the description of guns used in an earlier alleged kidnapping. Id. Lundin was charged with being a felon in possession, and moved to suppress the guns. Id. at *3.
District Judge Tigar granted the motion; the government took an interlocutory appeal.
Issue(s): “[T]o show that exigent circumstances [relating to the crashing sounds in the backyard] justified the warrantless search, the government must show that the officers lawfully stood on Lundin’s front porch and knocked on his door.” Id. at *4. “The government contends that the officers were permitted to knock on Lundin’s door under the so-called ‘knock and talk’ exception to the warrant requirement, which permits law enforcement officers to encroach upon the curtilage of a home for the purpose of asking questions of the occupants.” Id. at *5 (citation and quotations omitted).
Held: “For two reasons, we agree with the district court that the officers exceeded the scope of the customary license to approach a home and knock . . . .First, unexpected visitors are customarily expected to knock on the front door of a home only during normal waking hours.” Id. at *5.
“Second, the scope of the license is often limited to a specific purpose.” Id. “The ‘knock and talk’ exception to the warrant requirement does not apply when officers encroach upon the curtilage of a home with the intent to arrest the occupant.” Id. at *6.
“Thus, the officers violated Lundin’s Fourth Amendment right to be free from unlawful searches when they stood on his porch and knocked on his front door.” Id.
Of Note: Huge, huge win. But really nothing new or novel, in this welcome opinion. Instead, Lundin is the first Ninth case to really engage with Justice Scalia’s 2013 decision in Jardines.
District Judge Tigar (and, on appeal, Judge Fletcher) considered the subjective intent of the officers when they stomped onto Lundin’s porch at 4:00 in the morning. Id. at *6. Judges getting into the officers’ heads may raise eyebrows -- we’ve all been so browbeat by Whren’s horrible admonition, “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”
But Judges Tigar and Fletcher aren’t plowing new Fourth fields -- it was Justice Scalia in Jardines who explained that the implied license for a “knock and talk” depended on the purpose the officers had for entering the curtilage. Id. at *6. “Knock and talk” isn’t the only Fourth exception that looks to the “actual motivations” of the officers – “special needs” and “administrative inspections” also look at the intent of the police. Id. at *6. (And, as discussed below, maybe other “implied license” cases trigger a subject inquiry?)
How to Use: Is it per se unreasonable for officers to intrude upon curtilage at 4:00 a.m. for a “knock and talk” exception? Judge Fletcher explains it not.
Maybe your client “sells fresh croissants out of his home,” and “generally expects strangers on his porch early in the morning.” Id. at *5. Maybe the officers are warning your client that “a fox has gotten into the resident’s henhouse.” Id. (a lovely, subtle metaphor in this Fourth Amendment case).
These examples seem crazy? That’s crazy deliberate. The Ninth is signaling that it will be the rare case indeed where cops have a credible subjective intent for a “knock and talk” in the middle of the night.
For Further Reading: Cops’ subjective intent can matter for “implied license” searches. Does that new(ish) Jardines’ reality bear on implied license searches in, for example, email and Facebook? For post mulling that interesting question, see Some Thoughts on Jardines and Police Intent, available here.
Image of Lego Cop with Croissant from https://41.media.tumblr.com/364fb49eec15ae92e3937f8a9e48ac37/tumblr_n3l38ln7bf1rnpm7mo1_500.jpg
Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcapfpd.org