4th Amendment: “Knock and Talk” and Curtilage—11th Circuit Court of Appeals

Last week, the 11th Circuit Court of Appeals upheld an application of the “knock and talk” exception to the 4th Amendment protection against unlawful and unwarranted searches in U.S. v. Taylor, No. 05-10648.^[1] This exception allows police to make an initial entry on private property for “legitimate police purposes unconnected with a search of the premises.”^[2] The appeals court also examined the scope of privacy rights regarding the property adjacent to an individual’s home—in this case, a pond with some secrets.

“Knock and Talk” Exception
In the facts of this case, police officers were dispatched to the rural Florida homestead of Warren J. Taylor to follow up on “suspicious and troubling 911 calls” made from the property.^[3] Upon arrival, they entered the property through an unlocked gate, went down the driveway, and knocked on the front door.^[4] Mr. Taylor responded to their questions and gave consent for them to search his “hangout spot” in the barn.^[5] In the process of searching the area around the barn, officers were lead to a pond where they discovered a shotgun lying in shallow water.

The court held that the initial entry onto the property fell squarely within the “knock and talk” exception and that no further emergency or exigent circumstances were needed to justify the search prior to entering the barn.^[6] The search of the barn was permissible as the result of Mr. Taylor’s consent.

Curtilage
The United States Supreme Court has held that “private property immediately adjacent to a home is entitled to the same protection against unreasonable search and seizure as the home itself.”^[7] This area, or curtilage, is limited to the “property that the individual should reasonably expect to be treated as the home itself.”^[8]

The appeals court applied four Supreme Court factors for making this privacy determination:

1. Proximity of the curtilage to the home;
2. Nature of the use(s) of the curtilage;
3. Whether the area is included within an enclosure surrounding the home; and
4. Measures taken to protect the area from observation.^[9]

The court held that the pond was too far away and too detached from Mr. Taylor’s house to qualify as protected curtilage. It also found that the pond’s ordinary use had nothing to do with any “intimate activity of the home.”^[10] Finally, the court stated that the pond was directly analogous to an unprotected open field under the Supreme Court’s standard and that no measures had been taken to protect the area from observation.^[11] The pond, said the three‑judge panel, was outside the curtilage of the house and Mr. Taylor had no expectation of privacy that would prevent an unwarranted search of that area.

Therefore, because the initial entry was lawful under the “knock and talk” exception, because there was consent to search the barn, and because no warrant or consent was needed to search the pond, the appeals court affirmed the admission of all evidence. Mr. Taylor’s jury conviction for being a felon in possession of a firearm based on the evidence pulled from the pond was affirmed.

---

[1] U.S. v. Taylor, No. 05-10648 (11th Cir. July 28, 2006).
[2] Id. at 5, citing Coolidge v. New Hampshire, 403 U.S. 443 (1971).
[3] Id. at 6.
[4] Id. at 6.
[5] Id. at 3.
[6] Id. at 8. See also Id. at ftnt. 1 (noting that the exigent circumstances exception does also apply to the facts in this case, based on the nature of the 911 calls).
[7] Id. at 10, citing Oliver v. U.S., 466 U.S. 170, 180 (1984).
[8] Id. at 10, citing U.S. v. Dunn, 480 U.S. 294 (1987).
[9] Id. at 11, citing Dunn supra note 8 at 301.
[10] Id. at 12-13, citing Dunn supra note 8 at 302-303.
[11] Id. at 14, citing Oliver supra note 7.