CRIMINAL: “Knock and talk” procedures by police: ERIC QUINTANA v. COM. (SC 10/23/2008)

These two cases were argued before the Court on the same day, and involve the propriety and limits of the police procedure commonly called the "knock and talk," where officers approach a residence, knock on the door, and talk to a person who answers, ostensibly to obtain general information that could assist in an ongoing investigation or matter of public interest. The Appellants in both cases were convicted of drug offenses based on evidence obtained from use of the knock and talk procedure, and the Court of Appeals affirmed their convictions. SC granted discretionary review to address the parameters of that procedure. SC held that the knock and talk procedure is a proper police procedure and may be used to investigate the resident of the property, provided the officer goes only where he has a legal right to be.

The knock and talk procedure involves law enforcement officers approaching a home for the purpose of obtaining information about a crime that has been committed, a pending investigation, or matters of public welfare. Since officers must walk onto the property and up to the house itself to reach the door to knock, as opposed to looking from the street or a public sidewalk, the rights one has to the curtilage of the house are relevant. The concept of curtilage began in common law, extending the same protection afforded the inside of one's home to the area immediately surrounding the dwelling. United States v. Dunn, 480 U.S . 294 (1987). In Dunn, the Supreme Court established four analytical, non-exclusive factors which should be applied to solve curtilage questions: the proximity of the area to the home, whether the area is included in an enclosure with the home, how the area is used, and the steps the resident has taken to prevent observation from the people passing by. Because there is no expectation of privacy for anything that can be observed from outside the
curtilage, either by sight or other senses, the focus of a knock and talk analysis must be on the right of access to private property within the
curtilage. Certain areas such as driveways, walkways, or the front door and windows of a home frequently do not carry a reasonable expectation of privacy because they are open to plain view and are properly approachable by any member of the public, unless obvious steps are taken to bar the public from the door.

The answer in basic knock and talk cases then is clear: the officer who approaches the main entrance of a house has a right to be there, just as any member of the public might have. When a resident has no reasonable expectation to privacy if someone approaches his front door for a legitimate purpose, police officers may also so approach. The knock and talk issue becomes more complicated if an officer ventures farther than unbarred public access areas. Whether an officer is where he has a right to be when he does the knock and talk is defined by his limited purpose in going to the residence and the nature of the area he has invaded . There has been no finding of probable cause sufficient to grant a warrant, so the knock and talk is limited to only the areas which the public can reasonably expect to access. While there is a right of access for a legitimate purpose when the way is not barred, or when no reasonable person would believe that he or she could not enter, this right of access is limited. The resident's expectation of privacy continues to shield the curtilage where an outsider has no valid reason to go. Thus any part of the curtilage may be protected, including driveways, depending on the circumstances of each case.

Instead of falling directly under the knock and talk rule, as the Sixth Circuit has held, when an officer leaves the approach to the main entrance of a residence, a separate and distinct curtilage question arises . The trial court is tasked with determining separately whether the new area where the officer ventures is within the protected curtilage of the home. To determine this, the four-factor analysis of Dunn must be applied: proximity to the house, whether the area is enclosed with the house, how the area is being used, and what the resident has done to secure his privacy. If the area is determined to be within the protected
curtilage, then the officer is not in a place where he has a right to be, and any evidence thus illegally seized must be suppressed.

In Quintana, the back yard was within the curtilage of the house and Appellant Quintana had a reasonable expectation of privacy in it. The officer did not have the right to be there absent a warrant, meaning any information he uncovered there (the "smell" of marijuana) was improper and thereby tainted the search warrant based on it. The evidence found as the result of the improperly obtained search warrant thus should have been suppressed. In Bottoms, the officers did substantial investigation before going to do the knock and talk, even though they felt they did not have probable cause to get a warrant. They received the tip from the store manager, which they verified in part by observing the identified vehicle parked at Brian's residence. When they did go to his residence for the knock and talk, they properly requested his consent to search the residence, which Brian (properly) refused. The officers properly did not force the search, but used their observations from the knock and talk as further basis for probable cause to obtain a search warrant. The search was then conducted pursuant to the warrant. Most telling in the context of the curtilage analysis, the officers at all times remained where they had a right to be in the course of a knock and talk and did not go beyond the public access areas. As such, a separate application of the Dunn factors is unnecessary.