Cops at Your Door: What They Don’t Want You to Know

You may have seen the video I posted last week of police harassing private citizens on their own front porch here in West Virginia. This sort of behavior happens all the time: cops show up to a private residence, they knock on the door. What are your rights in that situation? What rights to the police have to do what they’re doing? Let’s make some things clear. 

For instance, in the McDowell County video I just posted, the officer can be heard multiple times in the body cam footage, claiming that he had reasonable suspicion to justify his behavior, based on the fact that he found what he believed to be four marijuana plants near the home. Based on that, the officer demanded the name and birthdate of the property owner, who was standing on the porch. 

Can police officers, assuming they have reasonable suspicion to believe that a crime was committed, and the property owner on the front porch may have committed it, demand identification under penalty of arrest for obstruction for noncompliance? That’s what ended up happening, of course, as you’ll see if you watch the footage of what happened to Jason Tartt. 

The too-long-didn’t-watch answer is no. If police officers are on your private property, that changes things. Cops are trained on the requirement for reasonable suspicion – to develop some reasonable suspicion they can articulate, even if total B.S., and then that entitles them to forcibly demand identification from whomever they deem a suspect. That is generally how things work in public places – but not on private property, especially a home. 

Let’s look at this scenario of police on your front porch and make sure we’re all on the same page about what the law is, and what the law is not, for both police and the occupants of private property. 

According to the 1980 Supreme Court opinion in Payton v. New York, in order to legally arrest someone in a home, rather than in a public place, absent consent or exigent circumstances, police officers must have a warrant. 

According to the 1984 Supreme Court opinion in Oliver v. United States, the heightened Fourth Amendment protections of the home extend beyond just the interior of the home itself into what’s called the “curtilage” of the home, which is the land immediately surrounding and associated with the home. Why? Because according to the Supreme Court, the curtilage is considered part of the home itself for Fourth Amendment purposes. The Fourth Circuit, where the porch video occurred, just in 2015 issued an opinion holding that a warrantless search of curtilage is presumed to be unreasonable. (Covey v. Assessor of Ohio County).

In the 2013 Supreme Court opinion of Florida v. Jardines, the Court held that a search undoubtedly occurs when the government, without a warrant, obtains information by physically intruding within the curtilage of a house, which in that actual case involved a home’s front porch. The Court cautioned that a search occurs unless a homeowner has explicitly or implicitly sanctioned the government’s physical intrusion into the constitutionally protected area, i.e., the yard and/or porch of the home.

Some of these broad Supreme Court holdings have been interpreted in slightly different ways in different federal appellate circuits. The porch video from last week was from West Virginia, which is in the Fourth Circuit.

The Fourth Circuit made clear as early as 2001 that police officers will be denied qualified immunity for failing to comprehend that they have no right to enter a home’s curtilage to make an investigation based on reasonable suspicion. (Rogers v. Pendleton). They have no “right.” All they can do is engage in what’s called a “knock and talk.” This is the scenario in the large majority of these front door encounters with police. 

That’s right… Police officers in the Fourth Circuit were cautioned in 2001 that they would be denied qualified immunity for ignorantly believing the existence of reasonable suspicion allowed the to enter and remain in a homeowner’s curtilage without consent of the homeowner. Yet it seems that it’s still being taught to officers, and being used to arrest people. 

Under the “knock and talk” exception to the warrant requirement, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” This means there is an “implicit license . . . to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” An officer may also bypass the front door (or another entry point usually used by visitors) when circumstances reasonably indicate that the officer might find the homeowner elsewhere on the property. “Critically, however, the right to knock and talk does not entail a right to conduct a general investigation of the home’s curtilage.”

The obvious difference between a police officer and a young girl selling girl scout cookies, is that many, if not most, homeowners have no idea whether they have any right to refuse to answer the door, or to ask the person to leave. Police like it this way. They don’t inform people of these rights, and the courts have ruled that they have no legal obligation to do so. You have to inform yourself and spread the word. 

Police officers, and anyone else really, have an implied license to come onto your property and knock on your door. This implied license can be revoked. Homeowners can prevent ordinary citizens and police officers alike from conducting a knock and talk by revoking their implied license to be there. However, few citizens know that an implied license exists. Generally, the courts require that a homeowner do so by clear demonstrations or express orders. For instance, asking someone to leave or refusing to answer questions. 

What about no trespassing signs? This is a topic of dispute, and can vary by federal circuit. The Tenth Circuit had a particularly bad opinion on this in the Carloss case, which resulted in one law professor creating “LAWn” signs providing notice to the police that their implied license to perform a knock and talk at the address is revoked. No trespassing can be ambiguous. One could certainly be more specific and avoid the grey area. Of course, another option is verbally telling the police that they’re not welcome and ask them to leave. That’s hard for a lot of people to do. Police know this and use it against you. 

Back to the McDowell County porch case, the officer thought he was smart saying he had reasonable suspicion, and now you have to provide identification or else get arrested for obstruction. But his own footage dooms his defense. He’s well inside private property. The homeowners have clearly expressed that they were afraid of him, asking for his name, which he refused. He arrested their landlord by physically seizing him on the front porch, well within the home’s curtilage, without probable cause and a warrant. The video disproves any later claim of exigent circumstances. More than that – I haven’t shown this footage yet – but he then radioes his superiors on the drive to jail – telling them repeatedly what he had done. There is obviously either a policy of civil rights violations in this department, or systematic ignorance, or both. 

ATF Agents Show Up at the Door to Check Firearms Purchases

Video footage was released from a Delaware man’s Ring Doorbell showing two ATF agents and one Delaware State Police trooper questioning a homeowner about recent firearms purchases. The footage, accompanied by an article at Ammoland.com, explained that the homeowner, in hindsight, felt that his privacy has been invaded and that he felt coerced into cooperation with the officers. The officers explained that they were part of a task force investigating potential straw purchases, which occur when someone buys a firearm on behalf of another person, who is otherwise unable to purchase directly. They had records in-hand, showing the homeowner’s recent purchases, and they said they wanted to verify that the man still had the firearms. Here’s the footage:

It’s clear that the officers had no warrant. But what did they need, if anything, as far as criminal suspicion goes?

The Delaware State Trooper, who by the way, is part of an organization that has close to zero respect for the 2nd Amendment, and which has already been caught maintaining secret lists of gun owners, had this to say about the reason they were there: 

“The reason we’re out here is obviously gun violence is at an uptick. We want to make sure – we’ve been having a lot of issues with straw purchases. One of the things, indicators we get is someone making a large gun purchase, and then a lot of times we’ve been there and ‘Oh, those guns got taken.’”

One of the ATF agents had this to say about why they were there:

“It just came up. We came here, look, I’m telling you. There’s an email from the federal side saying can you make sure this guy’s got his guns. If you recently purchased a whole bunch of guns, if we can look at them and just scratch them off…”

Therefore, it appears to be the case that there is no particularized information pertaining to this homeowner, indicating that he may have committed some crime – or even that a crime had been committed in the first place. Basically, he purchased multiple firearms and theoretically, anyone who purchases multiple firearms could potentially have purchased them as straw-conveyances for third parties. Since this is not particularized to the homeowner, it could not form the basis of either reasonable suspicion or probable cause. 

However, since the man is in his home, neither reasonable suspicion, nor probable cause, is all that relevant. The officers have two options. They can obtain a search warrant, which would require a finding of probable cause, approved by a judge, in advance, in which case there would need to be particularized facts about the homeowner. Or, they can do what cops call a “knock and talk,” which is what appears to have happened here. 

The legal theory is this: so-called consensual encounters don’t implicate the Fourth Amendment in the first place. Basically it’s a conversation with the consent of an individual. There’s no detainment. Cops are free to talk to someone willing to talk with them, just like anyone can. Because doing so doesn’t trigger Fourth Amendment protections, no reasonable suspicion is required, much less probable cause. That’s what the officers were attempting to do here. They clearly had no reasonable suspicion, assuming they weren’t lying (which is an entirely different legal issue).

The homeowner felt coerced. So here’s the legal issue: Would a reasonable, regular person believe that he was not free to terminate the encounter? A person is seized within the meaning of the Fourth Amendment “only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” (Terry v. Ohio 1968). 

Such a seizure can be said to occur when, after considering the totality of the circumstances, the Court concludes that “a reasonable person would have believed that he was not free to leave.” Or, in the context of a location the citizen doesn’t want to leave, such as their front porch, the appropriate question is whether that person would feel free to “terminate the encounter.” (Florida v. Bostick 1991).

There could be a number of relevant factors that could determine these questions, such as the number of officers present, their appearance, their actions, as well as their demeanor, such as whether they were non-threatening, and whether they acted as though they suspected the individual of illegal activity, rather than treating the encounter as “routine” in nature.

Here, there were multiple officers. They appeared to make an express attempt to act like they were non-threatening in demeanor and engaged in a routine investigation. But on the other hand, there were three of them, positioned in what some could argue as a threatening manner: spaced out in front of the house, as if they were dealing with a known criminal, as opposed to a law abiding citizen in a nice neighborhood. There was some tactical gear on display and they were obviously armed. Of course, we’d know for sure had the homeowner actually attempted to terminate the encounter.