The Supreme Court Passes Up an Opportunity to Clarify the "Knock and Talk" Authority of the Police
by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail: jcall@radford.edu
In the summer of 2009, the Pennsylvania State Police received a report that a suspect who had stolen a car might have fled to the Carman residence. When two state police officers arrived at the Carman residence to investigate, they discovered that the home occupied a corner lot. Because there was no parking available in front of the house, the officers turned onto the side street next to the residence and parked in a gravel parking area on the side of the Carman property. As the officers approached the home, they observed an outside deck with a sliding door that appeared to provide entrance into the home. Because it also appeared to the officers that members of the public would commonly approach the home from the deck, the officers went onto the deck and knocked on the sliding door.
Andrew Carman answered the knock and quickly became angered at the presence of the officers at his home. He refused to provide his name or answer any questions about the man suspected of stealing a car. As Carman turned and walked away from the officers toward the sliding door, he moved his arm toward his waist. One of the officers grabbed Carman’s arm to insure that he was not reaching for a weapon. As Carman twisted away from the officer, he lost his balance and fell into the yard.
Mrs. Carman arrived and eventually granted the officers consent to search their home. The officers found nothing, and the Carmans were never charged with any crime. The Carmans subsequently sued Officer Carroll under 42 USC §1983. Their argument was that the officers violated their 4th Amendment rights by not going to the front door of their residence to conduct their “knock and talk”
[1] with the Carmans. Officer Carroll argued that the police do not need to approach the front door of a residence so long as they remain “on those portions of [the] property that the general public is allowed to go on.”
The Supreme Court ruled in favor of Officer Carroll by unanimous vote in a per curiam opinion. (Per curiam opinions are usually brief, often unanimous, and always written without identification of any Justice as the author of the opinion). The case was decided on the basis that the lawsuit failed because there is no clearly established law on the question of whether the police must approach the home (without a warrant) by means of the front door. As the Court put it, “[w]e do not decide today …. whether a police officer may conduct a ‘knock and talk’ at any entrance that is open to visitors rather than only the front door” nor has a clear answer to that question been provided by lower courts. This meant that Officer Carroll was entitled to the defense of qualified immunity. In essence, this defense is available to any government official sued under §1983 who acted in good faith. If there is no clearly established law to guide officers’ actions, they have acted in good faith and are entitled to qualified immunity.[2]
Since the Carman case fails to answer this very important question about whether police officers must approach the front door of a residence to conduct a “knock and talk,” the decision provides the police no guidance as to how they must proceed when they go to a home without a warrant for the purpose of asking the residents questions about a case they are investigating. As such, the case is not of much help to law enforcement officers. However, it does demonstrate a rather odd approach that the Court has recently decided to take in these cases where the government official being sued asserts the defense of qualified immunity.
When a public official is sued under 42 USC §1983, there are two pertinent questions: 1) did the official violate a constitutional right of the plaintiff and, if so, 2) was that right clearly established when the official acted? In 2001, the Supreme Court held in Saucier v. Katz[3] that courts should address the first of these two questions before addressing the second question. Of course, if a court finds that the government official being sued did not violate a constitutional right of the plaintiff, then there would be no need to address the second question.
Interestingly, only eight years later, the Court backed away from its decision in Saucier. In Pearson v. Callahan,[4] the Court said that its insistence in Saucier that courts first decide whether the government conduct at issue was unconstitutional, before deciding whether existing law was clearly established, was merely “advisory,” rather than mandatory. In other words, courts are free to decide the qualified immunity issue first.
The practical implications of the Pearson decision are significant. The significance of the decision is illustrated by the Court’s opinion in Carman. If courts go directly to the qualified immunity issue first (i.e., whether existing law clearly establishes a rule covering the government conduct at issue) and by-pass the constitutional issue, government officials remain just as unclear as to whether their conduct was constitutional after the case is decided as they did before the lawsuit was filed. The result could be that our understanding of what the Constitution requires would stagnate because virtually all 4th Amendment rules come from court decisions. After Carman, for example, the police still do not know whether they must go to the front door of a residence to conduct a “knock and talk” in situations where they do not have a warrant. Under the Pearson approach, courts might decide a lot of cases, but they might not add much to our understanding of 4th Amendment law.
Of course, most cases deciding 4th Amendment issues do not arise as a result of civil suits challenging the actions of a police officer. Most of our knowledge about what the 4th Amendment requires of the police arises in criminal cases, deciding motions to suppress evidence filed by criminal defendants. At present, there is no “full-blown” good faith exception applicable to police behavior at suppression hearings as there is in Section 1983 lawsuits. While there are some situations where evidence will be admitted in spite of an honest, reasonable violation of the 4th Amendment by the police, the general rule remains that when the police violate the 4th Amendment in obtaining evidence, that evidence is inadmissible to prove the guilt of the person whose rights were violated in obtaining the evidence. This is the case even though the police officer who obtained the evidence honestly and reasonably believed that her actions did not violate the Constitution.[5]
As a result, the Court’s Pearson decision might not have the undesirable effect of “freezing” the development of 4th Amendment law. However, the recent Supreme Court cases of Hudson v. Michigan[6] and Herring v. U.S.[7] contain strong suggestions that the Court may be poised to create a full-blown good faith exception to the exclusionary rule. If the Court does indeed recognize such an exception and adopts the Pearson approach to motions to suppress evidence as well (that is, permits judges to decide the good faith issue before ruling on the constitutionality of the police behavior), the possibility that judicial amplification of the meaning of the 4th Amendment will proceed much more slowly than at present becomes very real.
The Supreme Court's opinion in Carroll v. Carman is available here.
[1] A “knock and talk” is what it sounds like – the police approach a home, knock on the door to the residence, and ask questions of anyone who answers. The encounter between the officer knocking and the person answering the door will seldom be viewed as tantamount to arrest; thus the officer usually does not have to give Miranda warnings to the person who answers the door.
[2] Anderson v. Creighton, 483 U.S. 635 (1987).
[3] 533 U.S. 194 (2001).
[4] 555 U.S. 223 (2009).
[5] See the exchange between Lee Harrell and Jack Call about the exclusionary rule in this Bulletin, Vol. 4, No. 1 (December 2009), as well as Eric Snow, “Exploring the Good Faith Exception to the Exclusionary Rule, “ Virginia Police Legal Bulletin, Vol. 9, No. 1 (May 2014).
[6] 547 U.S. 586 (2006).
[7] 555 U.S. 135 (2009).
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.