Case o' The Week: Lundin - "I hear you knocking . . . "

“. . . .but you can’t come in.”

  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

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Case o' The Week: Ninth Knocks Knock & Talk - Perea-Reyes, Curtilage, and Fourth Amendment

The Supreme Court has delivered good new authority that strengthens the Fourth Amendment, that fatally undermines previous Ninth Circuit law, and that produces great results for the defense.

Hey - it can happen. United States v. United States v. Perea-Rey, 2012 WL 1948973 (9th Cir. May 31, 2012), decision available here.

 

 Players: Big win for San Diego Ass't Fed Def. Gregory Murphy. Decision by Judge Wardlaw, joined by Judges Goodwin and visiting Judge William Sessions.   

Facts: Border patrol agents followed a man who illegally crossed into the US. Id. at *1. They watched the man go to Perea-Rey's home, enter through the gated fence entrance, and knocked on the front door. Id. An agent then followed the man as he went into an adjacent carport and met Perea-Rey: both were detained. Id. Perea-Rey refused to allow the agents in the house; agents with guns pulled nonetheless ordered everyone out of the home. Id.  Seven undocumented aliens were ultimately found.  Id. Perea-Rey was charged with harboring undocumented aliens. Id. The district court found the carport was curtilage, but upheld (most of) the search because "there was no reasonable expectation of privacy because it could be observed from the sidewalk." Id.

Issue(s): "The district court found that the carport, which the border agents occupied, was part of the curtilage of Perea-Rey's home, and we agree." Id. "The district court . . . reasoned that because the agents were able to freely enter the carport, Perea-Rey had no reasonable expectation of privacy in the carport." Id. at *4.

Held: "The Supreme Court has explained that the role of reasonable expectation analysis in evaluating the constitutionality of searches of the curtilage is only in determining the scope of the curtilage, and the not the propriety of the intrusion." Id. "[B]ecause [the carport] was curtilage, it was constitutionally protected area, and the warrantless entry, search and seizure by the agents violated Perea-Rey's Fourth Amendment rights." Id.

Of Note: Judge Wardlaw helpfully clarifies the "confusion that has existed for decades about the "reasonable expectation of privacy" and a search of its home and curtilage. Id. at *3. As the Supremes just explained in Jones, the Katz reasonable-expectation-of-privacy test "has been added to, not substituted for, the common-law trespassory test." Id. at *4. In other words, you retain a reasonable expectation of privacy in your home and curtilage, even if they can be seen from a public area. Stuff seen may be fair game for a warrant, id., but absent another exception cannot justify warrantless entry.  

How to Use: Perea-Rea's is a wonderful Fourth Amendment case -- in addition to the curtilage and Jones' analyses, it has a great limitation of the "knock and talk" doctrine. "Knock and talk" is that exception to the warrant requirement that allows cops to intrude on the curtilage to talk to occupants (and that tolerates searches done along the way). The theory of the "knock and talk" was Ninth law that focused on the subjective intent of the agents -- but that, explains Judge Wardlaw, has been made taboo by the Supreme Court. Id. at *5 (citing Kentucky v. King, 131 S. Ct. 1849 (2011)). King "implicitly overrules"   the reasoning of Ninth Circuit "knock and talk" law, observes Judge Wardlaw, and won't save the search here. Id. at *6. Perea-Reyes is a very important case on "knock and talk" -- will be our starting point when fighting warrantless home and curtilage searches relying on this theory.

                                               

For Further Reading: Investigators love Perea-Rea. In an intriguing little footnote, the Court takes judicial notice of Google maps and satellite images for determining the general location of the home. Id. at n.1 (citing a case that took judicial notice of online distances calculations). Ever seen those to-the-inch measurements that Google Earth can crank out? Maybe our investigators can finally hang up their rolling measuring wheels (much to their delight).  For a helpful guide on Google measurements, see Google Earth Blog here.

 Image of policemen at door from http://crimlaw.blogspot.com/2012/03/can-officer-enter-residence-to-arrest.html




Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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