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

from the qualified-immunity-is-garbage dept

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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  • identicon
    Anonymous Coward, 25 Sep 2018 @ 3:47pm

    Please, will someone just fucking shoot QI and put it down for good?

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 25 Sep 2018 @ 6:17pm

      Not if the Federalist Society keeps supplying SCOTUS jurists

      Our conservative judges really like QI (despite their alleged commitment to originalism) and think the police should always be given the benefit of doubt.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Sep 2018 @ 9:14pm

        Re: Not if the Federalist Society keeps supplying SCOTUS jurists

        Those cops can now commit treason by just showing up for work and be protected by protections that exist outside of U.S. Constitutional law. This sounds like a Rutger Hauer, Steven Seagal, Arnold Schwartzenegger, Bruce Willis movie on the fringe of a civil war with Washington, DC.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Sep 2018 @ 9:48pm

        Re: Not if the Federalist Society keeps supplying SCOTUS jurists

        Giving those guys who bring them their bread, meat and potatoes the benefit of any doubt makes perfect sense, but nice to see 6th Court of Appeals finally establishing what was already law.

        reply to this | link to this | view in chronology ]

  • icon
    K`Tetch (profile), 25 Sep 2018 @ 3:55pm

    clearly settled law

    "Morgan and Graf cannot overcome their burden of showing that the law was clearly established at the time of the search in this case."

    Sure they can. It's called 'the 4th amendment', and I'm pretty sure it's been long settled (like 200+ years long settled)

    I think what they mean is 'they can't overcome their burden of showing why law enforcement should have been aware that the 4th Amendment exists"

    I mean, when you get down to it, isn't that what they're saying?

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 25 Sep 2018 @ 4:06pm

      Re: clearly settled law

      I think they are trying to establish that president is more important than the Constitution. Or at least that courts' interpretations of the Constitution in previous cases is more important. That people, legislators, and courts fail to interpret the Constitution correctly, all the time (a large portion of Appeals and Supreme courts business) and even get incorrectly amended upon appeal.

      It is a mess, and the Constitution seems fairly clear. When they get involved in trying to read the Framers minds things get convoluted.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Sep 2018 @ 9:24pm

        Re: Re: clearly settled law

        tHEY have intended it that way (read the framers' minds) for a long long time when in reality the Constitution couldn't be more clear. The nwo has been hacking away at it for their nefarious reasons that are now becoming way clearer. We are long past cia coined phrases now.. conspiracy therorists, it would seem.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 25 Sep 2018 @ 9:58pm

          Re: Re: Re: clearly settled law

          The nwo has been hacking away at it for their nefarious reasons that are now becoming way clearer.

          I knew Hulk Hogan was a scumbag, but I didn’t think he was working with Hall and Nash to overthrow the United States federal government!

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Sep 2018 @ 10:07pm

      Re: clearly settled law

      No - the law here is not the 4th Amendment alone but w/r/t *curtilage* and the "reasonable suspicion" standard.

      It is a violation of the 4th Amendment if the police enter into somebody's curtilage if their justification to do so is merely a "reasonable suspicion" of some wrongdoing.

      Curtilage is considered an extension of the house and generally includes areas like a backyard (especially if fenced in) and (generally) other areas that a homeowner would reasonably expect privacy.


      That case is from 2001.

      Definitely still well settled but not 200+ years ago.

      reply to this | link to this | view in chronology ]

    • icon
      The Wanderer (profile), 26 Sep 2018 @ 9:26am

      Re: clearly settled law

      No - the question whose answer they're saying hasn't been shown to have been clearly established isn't "does the Fourth Amendment exist?", but "do the actions involved in this case violate the Fourth Amendment?".

      Add that to the principle of "if you could reasonably have believed that what you were doing didn't violate the law, you can't be held liable for it" - which doesn't apply to most citizens, but does to law enforcement, under the name of the "good faith" doctrine - and you get the situation we see.

      reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 25 Sep 2018 @ 4:58pm

    How much taxpayer money has been wasted on taking down such drug "kingpins" as these? (Millions at the very least, I'd presume.)

    "War on drugs"? "Well, we need something to justify our existence."

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Sep 2018 @ 6:42pm

      Re:

      Given the fact that law enforcement still gets greedy and uses asset forfeiture, clearly too much is the answer.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2018 @ 7:29pm

    to protect people from the power of the government

    Were the two officers called Benedict and Arnold?

    Also, what Street Crime was happening at the house?

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 25 Sep 2018 @ 8:27pm

      Re: to protect people from the power of the government

      "Also, what Street Crime was happening at the house?"

      None, they were acting on a tip. A tip to that is not elucidated, but what does that matter to them? They had a tip. They, under rules promulgated by the County did a knock and talk. A knock and talk about what? As you say, what street crime?

      In Ohio this sounds like a tip to a misdemeanor. (misdemeanors require eight officers?) but we are not clued in to the size of the plants 'observed' or what their yield might be (I hear that marijuana is typically dried before use or transport for sale, but, you know, rumors).

      So what dastardly deed was the SCRAP after? A bust, any bust, a bust that might justify their existence? And for that, they get qualified immunity with very little in the qualifications area.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2018 @ 8:48pm

    At what point can we all just agree that this is bullshit?

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 25 Sep 2018 @ 10:49pm

    "No really, we promise we'll get it right he NEXT time."

    In those two cases, this court should have reaffirmed long-settled Fourth Amendment principles. ... But it did not.

    So which is it, are they 'long-settled' principles, or aren't they? Because if they are it would seem the lower court wouldn't have needed to do anything, the case has already been made as to whether or not actions like that are acceptable, and it has been 'long-settled' that they aren't.

    Given they punted again, were I a cop in that area I wouldn't be worried in the slightest that the next time they violate the fourth they'll actually have the hammer brought down on them. If the court is willing to give them a pass on an issue supposedly 'long-settled', then it will almost certain do it again down the line.

    And the time after that.

    And the time after that.

    Judges need to grow some spines and throw the book at cops who violate the constitution and/or 'lesser' laws, and stop giving them a pass on everything they do. Until they do so why would any cop give a damn what a bunch of pathetic dupes in robes say? What are they going to do, wag their finger again at them?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Sep 2018 @ 8:45am

    Double standard much?

    Doesn't it seem odd that when we get detained/arrested we always get the 'Ignorance of the law is no excuse' speech?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Sep 2018 @ 11:50am

      Re: Double standard much?

      At least one of these cops has a wife who is a bitch.. couldn't all the blaim be put on her?

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 26 Sep 2018 @ 2:02pm

      Re: Double standard much?

      Ignorance of the law is no excuse... unless you have a badge. If you've got one of those it's not only an acceptable excuse, it's a highly desirable state.

      reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 4 Oct 2018 @ 3:48pm

    Curtilage

    Curtilage issues aside, the backyard is still private property and without a warrant, the cops are nothing but trespassers.

    reply to this | link to this | view in chronology ]


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