Late Night Knock and Talks
by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: jcall@radford.edu
In late 2020, the Virginia Court of Appeals decided a very important case dealing with the constitutionality of late-night knock and talks. The case provides important guidance to the police concerning their ability to approach a residence late at night or early in the morning for the purpose of asking questions of anyone who answers the police knock on the door. It also, in my opinion, provides the police too much latitude in making such visits.
After midnight on the evening of October 1, 2017, off-duty Virginia Beach police officer Livers observed a car jump a curb and just miss a sign outside a drug store. The vehicle then crossed four lanes of traffic, sat through a green light without moving, and drove into the parking lot of a fast food restaurant. Livers observed that the car had a flat tire. Because Officer Livers was off-duty, she did not investigate further, but she did call in a report on what she had observed, including the license plate number of the vehicle.
Officer Loveless, a member of the Virginia Beach Special Operations Safety Unit, received Livers’ report. A computer check revealed that the vehicle was registered to Stephen Saal’s residence. Loveless and his partner drove to Saal’s residence and arrived at about 12:30 a.m., approximately fifteen minutes after Livers called in her report. They parked their police car on the street and confirmed that the Lexus parked in the driveway had the license plate number reported by Livers. Walking up the driveway, the officers observed that the Lexus had some damage, had a flat tire, and was not occupied. They followed a path to the front door of the residence.
When Officer Loveless knocked on the front door and rang the doorbell, no one responded. As Loveless walked back to the driveway, he noticed a light shining through a small window and door on the side of the house. He walked to that door along a pathway that led to the door. When he knocked on that door, Saal appeared and opened it. In response to questions from Loveless, Saal indicated that the car in the driveway was his, that he had been driving it earlier that evening, and that he had returned home in the last hour. When Loveless asked him if he knew the car was damaged, Saal answered that he did not and walked outside to look at the car, unprompted by Loveless. Shortly thereafter, Loveless arrested Saal for driving under the influence of alcohol. Saal refused a breathalyzer test.
Prior to trial, Saal filed a motion to suppress all physical evidence obtained from him and all statements he made to Officer Loveless as fruits of an unconstitutional “stop, search, and arrest.” Saal argued that the early morning hour of the “knock and talk” conducted by Loveless exceeded the scope of the invitation that a person extends to the public to come to the door of the person’s residence without invitation. The trial judge denied Saal’s motion, after which Saal entered a conditional guilty plea and appealed the trial judge’s ruling.
A 3-judge panel of the Virginia Court of Appeals ruled against Saal on October 13, 2020. The court began its analysis by indicating that the officers’ walk to Saal’s front door was a physical intrusion into the curtilage of Saal’s that was “presumptively unreasonable absent a warrant,” citing a recent Supreme Court case from Virginia, Collins v. Virginia.[1] However, the court noted that there are exceptions to this general rule, including police visits to a home to conduct a “knock and talk” (where the police ask questions of a person at the home to determine if the person has any information relevant to a police investigation). The court cited a 2007 Virginia Supreme Court case, Robinson v. Commonwealth, as establishing this exception for knock and talks.[2]
The court also indicated that the knock and talk exception is based on the implied invitation that residents extend to the public to come to a resident’s front door for a lawful purpose. The U.S. Supreme Court recognized and discussed the ramifications of this invitation (referred to in that case as an implied license) in its groundbreaking case, Florida v. Jardines.[3]
Saal argued that this invitation to the public is “time-sensitive” in that it does not extend to visits after a certain, unspecified time, when the resident of a home would not expect uninvited members of the public to knock on the front door. Saal’s argument is based, in part, on language from Justice Alito’s dissenting opinion in Jardines. Saal asserted that the majority agreed with Justice Alito’s statement that “as a general matter, … a visitor [may not] come to the front door in the middle of the night without an express invitation.”
Rather than deal with the merits of this assertion by Justice Alito, the court stressed that all of the discussion about night-time visits was dicta, a statement that a court makes in an opinion that are not part of the court’s holding. In essence, dicta is something that a court did not need to say in resolving the case before it. The statement was not essential to the rationale used by the court to decide the case. Consequently, dicta is not binding in future cases, and the court need not follow it in Saal’s case. Instead, the Virginia Court of Appeals ruled that “whether such a knock [late at night] falls within the invitation implied by custom requires a review of the surrounding facts and circumstances and is not subject to a hard and fast, bright-line rule.”
The court also rejected Saal’s assertion that this is a case “of first impression for Virginia’s appellate courts.” The court cites Robinson (alluded to earlier) as addressing “the reasonableness of an officer entering the curtilage of a home after 11:00 p.m. with the goal of conducting a knock and talk.” The court indicates that Robinson identified several factors that should be considered in determining whether a late night knock and talk is reasonable: “the time of the approach, whether the officer’s approach was open or clandestine, whether the officer confined himself to the driveway and associated pathways where the general public would be expected to go, whether the lights were on, and whether cars outside the residence suggested the presence of people who may be awake.”
Applying those factors to the Saal case, the court concluded that the police acted reasonably in this case. The court indicated that the officers approached Saal’s residence from the driveway, as any member of the public would be expected to do. The officers detected a light on the side of the house in an area that would not reasonably be likely to be sleeping quarters. They had reason to believe, in light of the report from Officer Livers that the car in the driveway had been out on the road very recently, and that someone had arrived at and entered the house in the last 15-20 minutes. This made it likely that someone was still awake in the house, especially given the observation of the light shining through a window on the side of the house.
There is a serious flaw in the court’s analysis at this point. The observation of the light shining through a side window and door is a central fact (although clearly not the only fact) in the court’s assessment of the reasonableness of the officer’s decision to approach the house at 12:30 in the morning. However, as the court itself points out, that assessment must be based on the information available to the officers “at the time of entry and not by what happened afterwards.” But the officers were not aware that there was a light on in the house until after they had entered the curtilage. Therefore, the existence of the light should not have considered by the court in determining what facts justified the late-night approach of Saal’s house.
The court then indicates that the only factor in Saal’s favor in assessing the reasonableness of the knock and talk is the late hour of the officers’ approach. The court discounts this factor on the basis that it was reasonable for the officers to conclude that someone was still awake in the house. It supports this conclusion on the basis of two factors: the officers’ knowledge that the car in the driveway must have been parked there quite recently (in the last 15-20 minutes) and the observation of the light shining through the side window and door. However, as we just observed, the observation of the light should not be considered in making this judgment. That leaves only the recent arrival at the home of the care. Fifteen to twenty minutes is more than enough time for a person to “turn in” for the night, especially after arriving home at a late hour.
The court also stressed that knocking on someone’s front door, without more, “constitutes a minimal intrusion.” Saal did not have to answer the officers’ knock on his side door and let the officers in because a person is always free to ignore a knock on the door. This seems like a wholly unrealistic approach to the situation. The fact that the knock is taking place at such a late hour would likely cause a reasonable person to think that the knock must concern a matter of some urgency, otherwise no one would knock at such at uncommon hour. When the person inside the home then observes that the person knocking is a police officer, is it reasonable to think that the average person would then conclude, “oh, it’s just the police” and ignore the knock? The fact that it is a police officer at the door would only heighten the perceived sense that some urgent matter has brought the police to the door.
This court’s decision in Saal is an important decision that I think gets it wrong. The primary criticism to be made of the court’s decision is the court’s failure to give appropriate weight to the privacy interests at stake when the police conduct a late-night knock and talk. While the court is certainly correct in its observation that a knock by the police on someone’s front door during the day or early evening is a minimal intrusion, the same cannot be said about a knock late at night or early in the morning. While identifying the point at which such a knock is no longer minimal is admittedly somewhat arbitrary, 10:00 p.m. seems like an appropriate line of demarcation. I am very reluctant to call someone, even family members, after 10:00 p.m. because, even if the people are still awake, they are often preparing for bed and are likely in the process of “shutting down” for the day. It is a time when one’s sense that they want to be left alone is heightened. If I feel that way about a mere telephone call, my feelings are even stronger about an in-person visit. Nor do I feel that my feelings about this are out of the ordinary. I believe many other people – perhaps even most people – feel the same way.
Admittedly, some people, such as younger adults, might not be bothered by a knock on the door after 10:00. It is also true that courts (especially the U.S. Supreme Court) often express a reluctance to create hard-and-fast rules that fail to take into account special circumstances. However, the rule here need not be so hard-and-fast. The effect of a “not-after-10:00 p.m. for knock-and-talks” rule would be to shift the burden to the government to cite compelling reasons to justify a late-night knock-and-talk. There were no such compelling reasons in the Saal case. While the officers had reason to think that Saal may have been driving while under the influence, they had no reason to think that he was likely to go out again that night.
The criticisms of this case presented in this article do not change the fact that it is now clear that there is no categorial rule prohibiting police officers in Virginia from conducting late-night knock and talks. Such intrusions by the police are going to be assessed as to whether they were reasonable or not, given the factors articulated in Robinson. The court in Saal seems to have some reservations about these late-night visits by the police, though. The key factor for the court appears to be whether it is reasonable for the police to think that someone is still awake in the residence when they make a late-night knock and talk. It is also noteworthy that there is no discussion in Saal about the seriousness of the offense that the police are investigating and the need to find evidence about the offense quickly. It is quite possible that the police will be given even more latitude to conduct late-night knocks and talks if they are investigating a very serious offense and are hoping to find evidence that may disappear or be moved if they delay the visit.
[1] 138 S. Ct. 1663 (2018). For a discussion of the Collins case, see Call, “Collins v. Virginia: A Recent Supreme Court Case Underscores The Importance of Curtilage in Search Cases,” Virginia Criminal Justice Bulletin, Vol. 3, No. 2 (August 2018).
[2] See Call, “The Virginia Supreme Court Issues an Important Ruling about the Authority of the Police to Make Warrantless Entries onto Residential Property,” Virginia Police Legal Bulletin, Vol. 2, No. 2 (September 2007). A link to archived issues of the Virginia Police Legal Bulletin can be found at the homepage of the Virginia Criminal Justice Bulletin (radford.edu/content/cj-bulletin/home.html).
[3] 569 U.S. 1 (2013). The Supreme Court ruled in Jardines that the implied invitation to the public to come to the front door of a residence does not extend to the police if they come to the home for the purpose of conducting a search. Therefore, the police could not bring a drug detection dog to Jardines’ residence to sniff around the front door without a search warrant. See Call, “The Use of a Drug Detection Dog to Sniff at the Front Door of a House is a Search,” Virginia Police Legal Bulletin, Vol. 8, No. 1 (June 2013) for a discussion of Jardines.