The knock-and-talk exception permits police “to encroach upon the curtilage of a home, for the purpose of asking questions of the occupants.” United States v. Lundin, 817 F.3d 1158,1158 (9th Cir. 2016) (cleaned up). The exception is based on the theory of implied consent: a resident's consent is implied from the custom of treating the “knocker on the front door” as an invitation (i.e., license) to approach the home and knock. Id. (quoting Fla. v. Jardines, 569 U.S. 1, 8 (2013)). “The constitutionality of such entries ... hinges on whether the officer's actions are consistent with an attempt to initiate consensual contact with the occupants.” United States v. Perea–Rey, 680 F.3d 1179, 1188 (9th Cir. 2012).

The officers’ actions here are not consistent with a knock and talk. The body cam footage showed that six officers approached the Cormacks’ apartment and positioned themselves around the front entrance of the apartment, three of the officers with their guns drawn and pointed at the front window and door. One of the officers positioned by the door knocked as a second officer yelled, “Open the door!” The officer in front of the door kept his gun pointed at the door until the door opened and he saw Ms. Cormack. The officer then lowered his gun, but he did not put it in the holster. An officer asked if Martin was in the apartment. When Ms. Cormack answered that he was, another officer told her, “We are going to need you to come out.” See United States v. Chan-Jiminez, 125 F.3d 1324, 1327 (9th Cir. 1997) (noting that consent was not voluntary when officer's request for permission to search was made “with one hand resting on [the officer's] gun”); United States v. Marshall, 488 F.2d 1169, 1189 (9th Cir. 1973) (concluding that any consent to search was “in response to an overwhelming display of authority under the compulsion of the badge and the guns” and not voluntary).

Read the Full case here: United States v. Martin, No. 21-10128, 2022 WL 1577807 (9th Cir. May 19, 2022)

Anton Vialtsin, Esq.
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