The Fourth Amendment protects both property and privacy interests. And under the property theory of the Fourth Amendment, the Supreme Court has held that police officers cannot enter (i.e., trespass) the curtilage of a person’s home without a warrant. But in Florida v. Jardines, the Court recognized an exception to this general protection against warrantless entry, known as the “knock and talk.” According to the Court, when an officer approaches a person’s home by the front path, knocks promptly on the front door, waits briefly to be received, and then either asks to speak to the homeowner or—absent an invitation to linger longer—leaves, that officer has not run afoul of the Fourth Amendment because she has done “no more than any private citizen might do.”
To justify this exception to the Fourth Amendment’s protections, the Court has pointed to “the background social norms that invite a visitor to the front door,” stating: “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers, and peddlers of all kinds.” According to the Court, if friends, neighbors, mail carriers, package deliverers, Girl Scouts, and trick-or-treaters can take advantage of this implied invitation to approach a home and knock at the front door, then so too can police officers.
Of course, this exception to the Fourth Amendment’s protection is not without its limits. In Jardines, the Court agreed unanimously that an officer’s visit is limited spatially: The officer “must stick to the path that is typically used to approach a front door, such as a paved walkway. [She] 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.” Likewise, the Court agreed unanimously that an officer’s visit is limited temporally: The officer “may not linger at the front door for an extended period. The license is limited to the amount of time it would customarily take to approach the door, pause long enough to see if someone is home, and (if not expressly invited to stay longer) leave.”
Most notably, the Court agreed unanimously that there is a “no-night-visits rule,” indicating plainly that an officer may not “come to the front door in the middle of the night without an express invitation.” This, of course, only makes sense, given the social norms that justify the existence of the knock-and-talk exception in the first place. Warrantless searches of a person’s home have been historically characterized as “evil,” and warrantless nighttime searches as “the evil in its most pernicious form.” Social norms may justify an officer’s warrantless encroachment onto property at “high noon,” but they cannot justify a nighttime knock-and-talk because the customary implied invitation that welcomes visitors to approach one’s front door does not include an invitation to approach at two o’clock in the morning.
Despite the obviousness of a “no-night-visits rule,” however, some lower courts had permitted a nighttime knock-and-talk before Jardines was decided. Jardines itself did not involve a nighttime knock-and-talk, so its “no-night-visits rule”—although unanimously acknowledged as obviously existing—is not actually binding. And now, in recent years, some lower courts have thrown the existence of the no-night-visits rule into question by permitting nighttime knock-and-talks even after Jardines. In 2020, Justice Gorsuch—joined by Justices Sotomayor and Kagan—expressed concern about the expanded use of knock-and-talks and the emergence of “more and more cases testing the boundaries of the consent on which they depend.” That same year, at least three federal district courts implicitly condoned a nighttime knock-and-talk. And a nighttime knock-and-talk has now been condoned, post-Jardines, by the First Circuit, the Eleventh Circuit (twice), and—most recently, in 2022—the Fifth Circuit. In one of the Eleventh Circuit cases, officers went to Andrew Scott’s home at 1:30 a.m., and when Scott understandably answered his door with a gun in his hand, the officers immediately shot and killed him—only to find out later that they had gone to the wrong apartment.
By condoning nighttime knock-and-talks, these courts have permitted the violation of privacy and property rights protected by the Fourth Amendment—and have put those rights at risk for future violation. Worse, these decisions have created uncertainty in the law, so that—even when a court might agree that the Fourth Amendment protects against warrantless nighttime intrusions—that protection may be thwarted by the invocation of qualified immunity, which precludes recovery for the violation of a constitutional right when the right in question has not been “clearly established.” A right without a remedy is meaningless, even nonexistent. So, to give meaning to the Fourth Amendment’s protection of privacy and property interests—and to “[t]he Constitution’s historic protections for the sanctity of the home and its surroundings”—the Supreme Court must establish a clear rule against nighttime knock-and-talks. Some scholars have expressed concerns about various aspects of the knock-and-talk exception, but no one has directly addressed the problem of the nighttime knock-and-talk. This Article seeks to fill that gap.
