The general rule in the Ninth Circuit concerning knock and talk encounters is:
Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof-whether the questioner be a pollster, a salesman, or an officer of the law. Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964). In other words, a knock and talk is a consensual encounter. Consensual encounters between police officers and citizens are not seizures. See Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
In Cormier the Ninth Circuit identified two sets of coercive circumstances that would transform a knock and talk into a seizure: (1) if the police compelled an occupant to open the door under the badge of authority and (2) if the police were unreasonably persistent in attempting to gain entry. Cormier, 220 F.3d at 1109 (citing United States v. Winsor, 846 F.2d 1569 (9th Cir. 1988) (en banc), and United States v. Jerez, 108 F.3d 684 (7th Cir. 1997)). The court further noted that a nighttime encounter weighs in favor of a seizure. Id. at 1110.
In this case, the police unreasonably persisted for approximately two and a half minutes in loud knocking rising to the level of heavy pounding on doors and windows in summoning Defendant to the door. By all indications they were not leaving until and unless Defendant came to the door. The duration and volume of the knocking was far more than necessary to announce their presence to anyone inside and greatly exceeded the knocking that, at 9:00 at night in this community, a reasonable person would take as an invitation to answer or not. As a whole, the officers’ conduct was of an entirely different character than that of a neighbor or salesman on an ordinary visit. Although Detective Torres did not employ literal words of command, his announcement that the police wanted someone to come to the front door to speak with them when coupled with the unreasonably loud and persistent knocking would be taken by a reasonable person as an order, as indeed Defendant did take it. Certainly the police officers “convey[ed] a message that compliance with their requests was required.” Bostick, 501 U.S. at 435, 111 S.Ct. 2382. When compliance with a request is required, the request is more accurately described as a demand. As the Ninth Circuit has stated, “compliance with a police demand is not consent.” Winsor, 846 F.2d at 1573 n. 3 (internal quotations omitted). Under the totality of the circumstances — the unreasonably loud and persistent knocking, the announcement that the police wanted to talk with someone, and the nighttime setting — the conduct of the police would have communicated to a reasonable person that he was not free to decline the officers’ requests or otherwise terminate the encounter. Therefore, Defendant was seized within the meaning of the Fourth Amendment.
Read the full case here: U.S. v. Velazco-Durazo, 372 F. Supp. 2d 520, 524-25 (D. Ariz. 2005), https://casetext.com/case/us-v-velazco-durazo-2
Anton Vialtsin, Esq.
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