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Article Title

Knock and Talk No More

Authors

Jamesa J. Drake

Abstract

The Supreme Court has set out a roadmap for challenging one of the most common and insidious police tactics used today: the knock-and-talk. The path is short and clear and it leads to the inescapable conclusion that the knock-and-talk—as it is actually employed in practice—is unconstitutional. Although the Court has yet to squarely consider the issue, some Justices have already taken pains to say, in dictum, that knock-and-talks are lawful. Practitioners should not be dissuaded. What this faction of the Court describes is a highly romanticized—and utterly inaccurate—conception of what a knock-and-talk actually entails. The sort of activity that these members of the Court envision is, unquestionably, constitutional; but it is also the exceedingly rare exception to what normally occurs. No one doubts that the police may lawfully approach a home, stand at the threshold, and knock on the door in order to speak to the occupant. This is how some members of the Court define and knock-and-talk. But, that is a “false generalization” of what a true knock-and-talk involves. In practice, the phrase “knock-and-talk is a catch-all to explain different iteration of police activity, all of which share the same attribute: one or more law enforcement officers approach a targeted residence with a predetermined plan to circumvent the warrant requirement and convince the homeowner to let them inside using tactics designed to undermine, if not completely subjugate, the homeowner’s free will. For years, criminal defendants have argued to the lower courts that knock-and-talks coerce the homeowner into consenting to a search. This approach has had little success because voluntariness jurisprudence is notoriously bad. Now, there is another option that bypasses the voluntariness morass altogether. Under the Court’s newly revived trespass theory, when the police engage in a true knock-and-talk, they violate the Fourth Amendment the moment they breach the curtilage with the purpose of obtaining information from within; by the time they reach the front door, the die is cast. When given, the homeowner’s consent is properly viewed as a non-attenuated fruit of this antecedent Fourth Amendment violation, leaving the police with no constitutional foothold to justify any resulting search.

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