UNIVERSITY OF THE DISTRICT OF - UDC Law Review

870 (1987). In such a case, the fact that “the officers gained visual access to the interior of a dwelling without physically entering it
is irrelevant to the question whether a search was effected.” United States v. Winsor, 846 F.2d 1569 (9th Cir.1988).
Also, note that in some circumstances an insistent effort to get the occupant to come to the door can amount to a seizure of those
within. See United States v. Jerez, 108 F.3d 684 (7th Cir.1997) (where deputies knocked on motel room door at 11:00 p.m. for 3
minutes, made commands and requests to open the door, knocked for 1½ to 2 minutes on outside of window, and shone flashlight
through small opening in window’s drapes into face of one defendant as he lay in bed, collectively manifesting “the law
enforcement officers refusal to take ‘no’ for an answer,” this constituted a seizure).
But, while it is doubtless true that “as a matter of public policy … [l]ate-night intrusions into people’s homes are, and should be,
discouraged and should not be permitted unless necessary,” “courts have declined to find a seizure based on a night-time ‘knock
and talk’ in the absence of other coercive circumstances.” Scott v. State, 366 Md. 121, 782 A.2d 862 (2001) (random knocking on
motel room doors at 11:30 p.m. in hopes occupants would allow police to enter and ultimately consent to search). See also United
States v. Cormier, 220 F.3d 1103 (9th Cir.2000) (after 8:00 p.m.); United States v. Taylor, 90 F.3d 903 (4th Cir.1996) (at 9:15
p.m.). And the “knock and talk” procedure is unquestionably proper when utilized during daylight hours. See, e.g., United States v.
Adeyeye, 359 F.3d 457 (7th Cir.2004); State v. Johnston,—N.H.-, 150 N.H. 448, 839 A.2d 830 (2004).
Re Conner: Accord: United States v. Mowatt, 513 F.3d 395 (4th Cir.2008) (seeing inside through open door a search where, as
here, occupant opened door in response to police command); United States v. Poe, 462 F.3d 997 (8th Cir.2006) (opening door not
consensual when after “over ten minutes of persistent knocks” by one officer and another “had commanded Poe to open the door”).
Likewise if the door is kept open in response to a police threat or command. United States v. Washington, 387 F.3d 1060 (9th
Cir.2004).
Re Scott: See also State v. Warren, 949 So.2d 1215 (La.2007) (at 2:30 a.m., police “detected a strong odor of marijuana smoke
coming from the room”). Re daylight hours: especially where the tactic does not result in police entry of the residence. Jones v.
State, 407 Md. 33, 962 A.2d 393 (2008).
For further discussion of the “knock and talk” procedure, see Note, 41 Suffolk U.L.Rev. 561 (2008); Consider also Bradley,
“Knock and Talk” and the Fourth Amendment, 84 Ind.L.J. 1099 (2009), proposing “possible solutions to the intrusiveness that the
‘knock and talk’ technique imposes on the home,” the most severe of which would be “to ban ‘knock and talk’ entirely when a
particular home or suspect is the focus of police investigation.” This, Bradley contents, would constitute a “return to the principles”
of Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), claimed to stand for the proposition that “police
cannot get people to open their doors without a warrant and then use evidence obtained as a result of that opening as the basis for a
valid search or arrest.” Bradley, supra, at 1103. However, in Johnson, where the government attempted to justify search of a hotel
room as incident to the valid arrest of an occupant, the Court never questioned the police conduct that caused the “opening” of the
door in response to their knock, as compared to the subsequent unlawful police “entry … under color of their police authority”: the
Court held that defendant’s arrest was unlawful precisely because based “on the knowledge that she was alone in the room, gained
only after, and wholly by reason of, their entry.”
99 United States v. Blount, 98 F.3d 1489 (5th Cir.1996) (where no walkway to back yard and no indication back door a principal
means of access to that residence, “when a police officer walks into the partially fenced back yard of a residential dwelling, using a
passage not open to the general public, and places his face within inches of a small opening in an almost completely covered rear
window to look into the house and at the inhabitants, that officer has performed a ‘search’ ”); People v. Camacho, 23 Cal.4th 824,
98 Cal.Rptr.2d 232, 3 P.3d 878 (2000) (illegal search where police, responding to a complaint of a loud party at defendant’s home,
arrived there at 11 p.m. and heard no excessive noise. The officers walked into a side yard open area covered with grass without
any path or walkway and with no entrance to the home on that side, and looked in a large side window, visible from the public
street or sidewalk though the interior was not, and saw defendant with drugs); Olivera v. State, 315 So.2d 487 (Fla.App.1975)
(officer overheard incriminating discussions at rear bedroom window; “the implications of sanctioning police surveillance by
standing in a yard at one’s window in the middle of the night are too obvious to require elaboration”); State v. Kaaheena, 59 Haw.
23, 575 P.2d 462 (1978) (officer searched by standing on crates to gain access to 1-inch opening between drapes and blinds); State
v. Ragsdale, 381 So.2d 492 (La.1980) (officer went to rear patio, completely enclosed by tall and solid wooden fence, and looked
through narrow gap in closed curtains; this is a search).
Compare McDougall v. State, 316 So.2d 624 (Fla.App.1975), distinguishing such cases “on the basis that there the law
enforcement officers had no right to be on the premises in the first instance,” and holding there was no search where a police
officer looked in the rear window of a duplex after receiving a call to investigate a possible burglary at that duplex. The court could
just as well have said that it was a search but a reasonable one under the circumstances. Compare also Nordskog v. Wainwright,
546 F.2d 69 (5th Cir.1977), holding that when police have probable cause to arrest and receive no answer to their knock on the
front door, they may look in a side window and rear door to see if defendant is there.
Lundstrom v. Romero, 616 F.3d 1108 (10th Cir.2010) (a search where officer “either scaled a fence or opened a gate to gain access
to Lundstrom’s backyard, taking up a position that allowed him to observe Lundstrom in the rear of the house”); Quintana v.
Commonwealth, 276 S.W.3d 753 (Ky.2008) (when no one answered front door, officer walked to back yard to window where air
conditioner was located and smelled marijuana from air coming out; this a search, as “back yard is not normally an area that the
general public would perceive as public access”); State v. Foster, 347 Or. 1, 217 P.3d 168 (2009) (no “lawful vantage point” here,
as officer “had walked past the front door to look in the window,” but this justified by legitimate safety concerns of police present
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