The following is a computer generated transcription, some grammar and spelling errors may be inherent.


Hey guys, Attorney Anthony Bandiero here bringing a roadside chat this time. An officer from Texas wants clarification on knockin talks. And in particular, I guess the question would be, can you do a knock and talk at odd hours at night? 

Okay, the answer is yes. If you have a reason to believe that the occupants would be receptive to uninvited guests, so my friend in Texas, you know, you've seen other videos where I talk about how courts have held that you know, knocking at odd hours at night, you know, police open the door, and the officers going back to write that report and saying, Oh, that was a knock and talk. No, it was not. That is not a knock and talk that was as to say, the least a detention, because what reasonable person would feel free to ignore you. So if they chose to open that door, they have been essentially detained. They're even still in their house, but it's still a form of the tension, because the person did not feel free to leave. And they submitted to your show of authority. Okay. But going back to the question, is it possible to have a knock and talk late at night? What's interesting about this question is it comes very, it's very timely, because there was a case decided, just a few months ago, out of the First Circuit, and here's what happened. Basically, a boyfriend, girlfriend, you know, they're college students, and their relationship is in turmoil. So they break up, the boyfriend doesn't take no for an answer the ex-boyfriend and is basically harassing her, also, in some way stalking her, they end up after, you know, a month or so goes by, they kind of makeup and but just as friends, right, just as friends, at least that's what she wants. He doesn't he wants a relationship again. But you know, she, she allows him to be a friend. And he starts doing really weird stuff again, you know, and they get into a fight in, you know, an argument at his at her house, and he takes her cell phone, alright, and leaves. Now, this happens, you know, around three o'clock in the morning or so. And, you know, she calls the police, the phone is missing. They, you know, believe, you know, they that, you know, obviously he took it right. So they go to his house now, they go to his house around for a 5am kind of read from the case. And they observed the lights on in the home and decided to conduct a knock and talk rather than apply for a warrant to go get that phone. So here, the court said the officers entered the property, walked into the front porch, knocked on the door, and announced that they were police officers seeking to speak with the occupant. No one answered and the officers left the property. Was that in and of itself a constitutional violation? And the court said no, at this point, there was nothing constitutionally infirm about the officer's conduct, which was expressly permitted by the knock and talk exception to the warrant requirement. Okay. So they basically did what the public to do. Um, I want to let you know, though, a key to me in this case, is that the lights were on, and that they knew that French, the defendant here was just at the girlfriend's house recently, so he was up, they knew he was up recently, the lights are on. And, you know, it seems reasonable that maybe French would like to talk to the police and, you know, settled matter like, oh, no, I don't have her cell phone, she probably left it in her car or something. So, so far, so good. Okay. And let's also pause for a second and let me give you the citation. The citation for this case is French versus Merill, M E R, R, I L, excuse me, Ll, and the citation is 15 415. I'm sorry, F fourth. So federal fourth 116 First Circuit 2021. Okay. The problem is, though, they the officers in that case, went back to the home
multiple times, approximately three times, and they and backup during the case they actually saw French the next time open up the the window on the second NOC open up his, his blinds, look through and you know, again, see the police and shut and shut the blinds and so forth. So they knew that he did not want to talk to the police, but they kept coming back and also being honest curtilage and trying to get him to talk. The court found that that knock-in talk was a violation. It was not a violation. Okay. I'm sorry, it was not a knock and talk. When police No. Okay, whether expressly or implicitly, like expressly, hey, I don't want to talk. leave my property. You better go. Okay. Even if you have probable cause, if you don't have exigent circumstances, if you don't have some emergency imminent destruction of evidence, the subsequent suspect will likely escape before getting that warning. You better have facts on it. Right? There's some danger to the officers or others. If you don't have some legitimate agency, where if you do not act, something eminently will happen, right, battle happen, then you've got to leave. There is no right for law enforcement. Even when doing something, you know, conducting serious investigations, there is no right for law enforcement to linger around this person's curtilage without some other exigency or consent. Well, if they told you to leave expressly, then you got to leave implicitly, is what's going on here. The French is looking at the cops to the window and still refuses to answer the door. He's basically sending the cops a message, leave, I don't want to talk to you. And if that's the case, according to the US Supreme Court to in a case called sardines, you got to leave. And so here, the court found that those three extra, you know, intrusions were violations, the Fourth Amendment, and are you sitting down, right, for the next part, no qualified immunity, the court found that a reasonable officer, you know, doing their job in 2021, at least in the first circuit, would have understood that what they were doing violated the Constitution, and therefore, there is no qualified immunity. Therefore, French is going to get paid. Okay, French is going to get money for this. How much money? I don't know. Is this a million-dollar lawsuit? I hope not. But it's going to cost some money. You know, at the end of the day, from that, that those officers, the officers in their agency, the answer is yes. So here's the takeaway. If you are going to do a knock and talk at odd hours and odd hours, you define it for me, you know, you know, I don't know, you know, 10 o'clock in the past, I don't know before 6am. But if you're going to do a knock and talk on odd hours, and you do not have exigency, you know, some form of emergency, I mean, the guy's car is blocking somebody's driveway, and that person cannot go to work. That's urgency, right? That's an ongoing nuisance handle business. You got a loud party call, that's excellency, it's an ongoing nuisance. You have a person who you believe committed a violent crime, and they, you know, they have evidence, maybe on their person blood, trace evidence, and so forth, you know, then those rules apply. But all you but if all you want to do is a regular knock and talk, and you do not have agency, I would like for you to articulate a reason why you believe that that person inside that home would be receptive to you being there Buber receptive to a person of the public knocking on their door. Here in the First Circuit, they found that because he was up recently, he had his light on that that was good to go. I like it, I think just give me you know, that's not much evidence there. You know, but it's something but if lights are out, and you don't hear not even a mouse, right, no lights, no sound, no other indication that they were just up recently, then I would not conduct a knock and talk at a house at three o'clock in the morning. I'm not doing okay. Because it to me, it violates the person's curtilage It violates a knock and talk rules. I ain't going up there. Okay, I'll go back there the next day or send another officer on day shift to try and make contact but I'm not doing it because I think the message is clear from these courts.
Don't mess up people's curtilage. Okay. And so, the first circuit is reminding everybody that you've got to play by the rules. Even though you're on graveyard, and you can't go back in the daytime, go find a partner to go back in the daytime. Alright, that's my message for you. Hopefully, it helps. Do me a favor before you leave. It doesn't take much to like, subscribe and comment, share with your friends and I hope my friends that have helped you just even a little bit. Get it right every time. See you next time.