SIXTH CIRCUIT EXAMINES CURTILAGE AND OFFICER CONDUCT DURING A KNOCK AND TALK

--------------------------------------------------------------------------------------------------------------------------------------- ©2019 Article published in the free LLRMI E-Newsletter Link to article online: https://www.llrmi.com/articles/legal_updates/2019_morgan_v_fairfield_county/ http://www.llrmi.com | http://www.patctech.com SIXTH CIRCUIT EXAMINES CURTILAGE AND OFFICER CONDUCT DURING A KNOCK AND TALK April 2019 For duplication & redistribution of this article, please contact Law Enforcement Risk Management Group by phone at 317-386-8325. Law Enforcement Risk Management Group, 700 N. Carr Rd. #595, Plainfield, IN 46168 ________________________________________________________________________________ Article Source: https://www.llrmi.com/articles/legal_updates/2019_morgan_v_fairfield_county/ ©2019 Brian S. Batterton, J.D., Legal & Liability Risk Management Institute On September 6, 2018, the Sixth Circuit Court of Appeals decided Morgan v. Fairfield Countyi , in which the court discussed whether deputies violated the Fourth Amendment when they went into a back yard and side yard while conducting a knock and talk. The relevant facts of Morgan are as follows: Morgan and Graf owned a home together on about a one-acre lot. The front of the house faced the road, and a sidewalk ran from the road to their front door. In the front window and on a vehicle parked on the property were no-trespassing signs. There were neighboring homes—each approximately 300 feet away. At the time of the events of this case, one of the neighboring houses was occupied; the other was empty. There were only limited sightlines between the houses and no residences across the street or behind Morgan's and Graf's house. In the back of the house there was a second-story balcony that was not visible from the front of the residence. There were no stairs to the balcony, so that the only way to access it was through the house. On one side of the balcony was a privacy fence, blocking the view to the one neighbor's house that was occupied. On the other side, large trees blocked the view to the unoccupied neighboring house. The county's SCRAP unit received two anonymous tips that Morgan and Graf were growing marijuana and cooking methamphetamine at their house. The SCRAP unit was familiar with Morgan and Graf; they had conducted a 'knock and talk' a year earlier and let Morgan and Graf off with a warning. The two new tips were not sufficient to establish probable cause for a warrant, however, and so the SCRAP unit decided to do another 'knock and talk.' Five members of the SCRAP unit went to the house and, following their standard practice, surrounded the house before knocking on the door. One officer was stationed at each corner of the house, and one approached the front door. The officers around the perimeter were standing approximately five-to-seven feet from the house itself. The officers forming --------------------------------------------------------------------------------------------------------------------------------------- ©2019 Article published in the free LLRMI E-Newsletter Link to article online: https://www.llrmi.com/articles/legal_updates/2019_morgan_v_fairfield_county/ http://www.llrmi.com | http://www.patctech.com the perimeter could see through a window into the house on at least one side of the building. With the officers in position, the officer at the front door—Deputy Lyle Campbell—knocked and spoke briefly with Graf. Graf shut the door, remaining inside. While Campbell was speaking with Graf, one of the officers positioned in the back of the house noticed seven marijuana plants growing on the second-floor back balcony and notified the other members of the SCRAP unit. By the time Campbell learned of the plants, Graf already had closed the front door. Fearing destruction of evidence, Campbell then demanded that Graf return and open the door. Almost immediately after voicing that demand, he opened the door, entered the house, and brought Morgan and Graf outside to wait for a search warrant. An Ohio court issued a search warrant based on the officers' observation of the marijuana plants. During the ensuing search, the police found weapons, drugs, and drug paraphernalia. Morgan and Graf were arrested and charged in state court. The trial court denied Morgan's and Graf's suppression motion, after which Morgan pleaded guilty and Graf was found guilty by a jury. On appeal, however, the denial of the suppression motion was overturned and the convictions vacated. The State of Ohio subsequently dropped the charges."ii Morgan and Graf subsequently filed suit against the deputies in federal district court and alleged the deputies violated their rights under the Fourth Amendment when they intruded into their curtilage without a warrant or an exception to the warrant requirement. They also sued the county and alleged that the county policy or practice regarding knock and talks led to the violation committed by the deputies. The district court granted qualified immunity to the deputies and summary judgment for the county. Morgan and Graf appealed to the Sixth Circuit Court of Appeals. The court first examined if the deputies were entitled to qualified immunity. To overcome qualified immunity, the plaintiff must show (1) that the deputies violated the Fourth Amendment, and (2) that the right violated was clearly established such that a reasonable officer in the same situation would have known he was violating the Fourth Amendment. Next, the court examined whether the SCRAP Unit “searched” the Morgan and Graf’s property for Fourth Amendment purposes. If so, they must determine if an exception to the warrant requirement authorized the warrantless search. The court of appeals stated The answer to the first question is yes, the SCRAP unit searched the property for Fourth Amendment purposes. When the government gains information by physically intruding into one's home, "'a search within the original meaning of the Fourth Amendment' has 'undoubtedly occurred.'" Florida v. Jardines, 569 U.S. 1, 5 (2013) (quoting United States v. Jones, 565 U.S. 400, 406 n.3 (2012)). But it is not just the physical house that receives the Amendment's protection. The curtilage—the area "immediately surrounding and associated with the home"—is treated as "part of [the] home itself for Fourth Amendment purposes." Oliver v. United States, 466 U.S. 170, 180 (1984). That is because "'[t]he protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked --------------------------------------------------------------------------------------------------------------------------------------- ©2019 Article published in the free LLRMI E-Newsletter Link to article online: https://www.llrmi.com/articles/legal_updates/2019_morgan_v_fairfield_county/ http://www.llrmi.com | http://www.patctech.com to the home, both physically and psychologically, where privacy expectations are most heightened.'" Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018) (quoting California v. Ciraolo, 476 U.S. 207, 212-13 (1986)).iii [emphasis added] The court also noted that the Supreme Court has previously set out several factors that courts should consider when determining if an area is curtilage under the Fourth Amendment. The factors are (1) the proximity of the area to the home, (2) whether the area is within an enclosure around the home, (3) how that the area is used, and (4) what the owner has done to protect the area from observation by passersby. United States v. Dunn, 480 U.S. 294, 301 (1987).iv [emphasis added] The court of appeals then applied the factors above and held that, whether the deputies were an arm’s length from the sides of the house or 5-7 feet, they were within the curtilage and as such, it was a search under the Fourth Amendment. Further, the regarding the deputies in the backyard, the court stated And "the law seems relatively unambiguous that a backyard abutting the home constitutes curtilage and receives constitutional protection." Daughenbaugh, 150 F.3d at 603; see also United States v. Jenkins, 124 F.3d 768, 773 (6th Cir. 1997). That is true especially when, as here, there are no neighbors behind the house and the backyard is not visible from the road.v [emphasis added] Having determined that the deputies conducted a “search” under the Fourth Amendment, the court set out to determine if an exception to the warrant requirement applied. First, the county and deputies argued that they were protecting their safety by making a perimeter around the house because Morgan was in a motorcycle gang. The court stated To be sure, officer safety can be an exigency justifying warrantless entry. But "[q]ualification for this exception is not easy" and requires a particularized showing of a risk of immediate harm. United States v. Purcell, 526 F.3d 953, 960 (6th Cir. 2008). The only particularized facts that the county offers here are a contested fact, i.e., that Morgan was in a motorcycle gang, and a fact with no citation to the record, i.e., that Morgan may have had a weapon. Without more, the county cannot show "the need for prompt action by government personnel" required to conclude that delay to obtain a warrant "would be unacceptable under the circumstances." Id. (quoting United States v. Rohrig, 98 F.3d 1506, 1517 (6th Cir. 1996)).vi Second, the county and deputies argued that they were not in the curtilage for the purpose of conducting a search but rather for “officer safety.” However, the Fourth Amendment relies on “objective reasonableness” and the subjective intent of deputies or officers is irrelevant, whether the intent is good or bad. Since the deputies were in the curtilage without a warrant, their personal intent did not matter; their conduct must be within a reasonable exception to the warrant requirement. Lastly, the county argued that the marijuana plants that were seen were in plain view. However, the court noted --------------------------------------------------------------------------------------------------------------------------------------- ©2019 Article published in the free LLRMI E-Newsletter Link to article online: https://www.llrmi.com/articles/legal_updates/2019_morgan_v_fairfield_county/ http://www.llrmi.com | http://www.patctech.com The plain-view exception, however, applies only when "the officer did not violate the Fourth Amendment in arriving at the place where the evidence could be plainly viewed." United States v. Taylor, 248 F.3d 506, 512 (6th Cir. 2001). As explained above, the SCRAP unit discovered the marijuana only after entering Morgan's and Graf's constitutionally protected curtilage.vii [emphasis added] As such, none of the county’s or deputies’ reasons for being within the curtilage were a valid exception to the warrant requirement. Therefore, the deputies violated the Fourth Amendment by setting up a perimeter around Morgan and Graf’s residence while conducting a knock and talk. The court of appeals summed up their rationale as follows: The SCRAP unit was concerned about general drug activity at Morgan's and Graf's house. But the Fourth Amendment prohibited them from entering the property: they had no warrant, no exigent circumstances, and no other exception to the warrant requirement. A 'knock and talk' by police was permitted "precisely because that is 'no more than any private citizen might do.'" Jardines, 569 U.S. at 8 (quoting Kentucky v. King, 563 U.S. 452, 469 (2011)). Thus, the officers' right to enter the property like any other visitor comes with the same limits of that "traditional invitation": "typically . . . approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave." Id. Certainly, "[a] visitor cannot traipse through the garden, meander into the backyard, or take other circuitous detours that veer from the pathway that a visitor would customarily use." Id. at 19 (Alito, J., dissenting). Neither can the police. By doing so here, the SCRAP unit violated Morgan's and Graf's Fourth Amendment rights.viii [emphasis added] Next, the court examined whether the right violated was “clearly established” such that another reasonable officer would have known that he was violating the Fourth Amendment. After an examination of court precedent, the court of appeals held that the law was not clearly established, therefore the deputies, in their individual capacities were entitled to qualified immunity. They affirmed the decision of the district court regarding qualified immunity. The court then examined whether the county was entitled to summary judgment. The court stated that to have a valid claim for municipal liability, the plaintiffs must (1) identify the municipal policy or custom, (2) connect the policy to the municipality, and (3) show that [their] particular injur[ies] [were] incurred due to execution of that policy." Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (citing Garner, 8 F.3d at 364).ix [emphasis added] In the case at hand, the court noted that it was undisputed that the county’s policy on knock and talks required officers “enter onto the back of any property during every knock and talk.”x The court stated [A]s acknowledged by the sheriff and members of the SCRAP unit, that policy did not give any leeway for the officers to consider the constitutional limits that they might face. The SCRAP unit did not weigh the characteristics of properties to determine what parts of the properties were curtilage (and thus off limits). The policy gave no weight to the core value one's right to retreat into his or her home "and there be free from unreasonable government intrusion." Collins, 138 S. Ct. at 1670 (quoting Jardines, 569 U.S. at 6). Quite the opposite: the policy commanded that the SCRAP unit ignore those limits. It was not one employee's interpretation of a policy that caused Morgan's and Graf's injuries—the policy was carried out precisely as it was articulated. And so, because the county's policy itself was the cause of Morgan's and Graf's injury, the county should be held liable under Monell. xi Therefore, the court of appeals reversed the grant of summary judgment regarding the county and remanded the case back to the district court. i No. 17-4027 (6th Cir. Decided September 6, 2018) ii Id. at 2-4 iii Id. at 6 iv Id. at 6-7 v Id. at 7 vi Id. at 8 vii Id. at 9 viii Id. at 10 ix Id. at 13 x Id. at 14 xi Id.