United States Court of Appeals
For the First Circuit
No. 20-1650
CHRISTOPHER FRENCH,
Plaintiff, Appellant,
v.
DANIEL MERRILL, individually and in his official capacity as a
Sergeant in the Police Department of the Town of Orono; JOSH
EWING, individually and in his official capacity as Chief of
Police of the Town of Orono; TOWN OF ORONO; TRAVIS MORSE,
individually and in his official capacity; CHRISTOPHER GRAY,
individually and in his official capacity; NATHAN DROST,
individually and in his official capacity,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John C. Nivison, U.S. Magistrate Judge]
Before
Lynch, Lipez, and Barron,
Circuit Judges.
Timothy C. Woodcock for appellant.
Kasia Soon Park, with whom Edward R. Benjamin, Jr. and
Drummond Woodsum were on brief, for appellees.
October 1, 2021
LIPEZ, Circuit Judge. Appellant Christopher French
claims that police officers in Orono, Maine, violated his
constitutional rights during two encounters in 2016 -- one in
February and one in September -- both of which resulted in his
warrantless arrests on charges that were later dropped. French
brought this action for damages under 42 U.S.C. § 1983 against the
Town of Orono, the chief of the Orono Police Department, and four
of the officers with whom he interacted during the two episodes.
The district court granted summary judgment in favor of the
defendants on all counts. French appeals only the district court's
entry of summary judgment on Counts I and IX alleging that the
individual officers violated his Fourth Amendment rights during
the February and September incidents respectively.1
After careful review, we affirm the district court's
entry of summary judgment on Count I, relating to the February
incident. We reverse on Count IX, relating to the September
incident, because the unconstitutional conduct of the officers
violated the clearly established law of the Supreme Court as set
forth in Florida v. Jardines, 569 U.S. 1, 6 (2013).
1 The remaining eleven counts alleged violations of French's
Fifth Amendment, Sixth Amendment, Eighth Amendment, and procedural
Due Process rights, as well as various state law tort claims,
supervisory liability claims against Town of Orono Police Chief
Joshua Ewing, and municipal liability claims against the Town of
Orono. None of those claims are at issue on appeal.
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I.
We describe below each of the challenged episodes
between French and the law enforcement officers. We rely on the
parties' limited stipulated facts2 and recount the remaining facts
as they were presented to the district court on summary judgment
in the light most favorable to French as the non-moving party.
See, e.g., McKenney v. Mangino, 873 F.3d 75, 78 (1st Cir. 2017).
A. The February 2016 Incident
In February 2016, French was a student at the University
of Maine and was dating a fellow student, Samantha Nardone. In
the early morning hours of February 18th, French and Nardone had
an argument at Nardone's residence after a night at the local bars.
A neighbor called the police and reported that the couple had been
fighting loudly.
Officer Nathan Drost, Sergeant Daniel Merrill, and
another officer from the Orono Police Department3 responded to the
neighbor's call at approximately 1:00 a.m. Upon arrival, the
officers observed French and Drew White, one of Nardone's
roommates, standing on the sidewalk in front of Nardone's
2 The parties stipulated to the identity of the officers
involved, the timing of the events, the addresses of the relevant
locations, and the authenticity of video recording of the events
from body cameras and police cruisers. They also stipulated to
other minor facts which we will identify where relevant.
3 The third officer was not named as a defendant in this case.
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residence. A few moments later, Nardone and her other roommate,
Alicia McDonald, came outside. Drost questioned Nardone, White,
and McDonald, who all confirmed that French and Nardone had been
involved in a domestic dispute.
Nardone told the officers that she and French had had
similar disputes in the past, but that French had never been
physically violent. She also said that she did not wish to press
charges, but that she did want to end her relationship with French
and wanted him to leave her alone for the night. Drost directed
French to go home and cautioned him that returning to Nardone's
residence within 24 hours would result in a criminal trespass
warning that would ban French from the premises for a year. Drost
also informed French that Nardone wanted her personal property
returned the following day and offered to facilitate an exchange.
French complied with Drost's directive and left
Nardone's residence. During his walk to his apartment -- which
was just a short distance away -- French sent Nardone several
offensive text messages.4 Nardone showed the messages to the
officers, who were still present. At that point, the officers
informed Nardone that they could serve French with a notice to
stop harassing her and, if he continued to harass her, French could
be arrested and charged with a crime.
4 The parties stipulated to the content and timing of all
messages French sent to Nardone on February 18, 2016.
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At Nardone's request, the officers caught up with French
outside of his residence and served him with a Cease Harassment
Notice ("CHN"). The CHN informed French that he was "forbidden
from engaging, without reasonable cause, in any course of conduct
with the intent to harass, torment or threaten . . . Samantha
Nardone." Less than an hour after receiving the notice, French
sent Nardone two more messages via Snapchat declaring their
relationship over, threatening suicide, and inviting her to his
forthcoming funeral.
Later that day, French sent Nardone a message via
Instagram asking if she was "ok" and assuring her that "everything
is fixable." Having received no response, French sent Nardone
several emails approximately four hours later asking to "talk
please" and explaining that he wanted to return some of her
property. French maintains that he was trying to comply with
Officer Drost's directive to return Nardone's property that day.
Two and a half hours later, French sent Nardone another email
lamenting that she refused to respond to him and insisting that he
only wanted to talk to her about their argument. Forty-five
minutes or so later, French sent Nardone another message inquiring
about whether he could drop off Nardone's property.
At around 7:30 p.m. that evening, Officer Drost called
Nardone to check in. Nardone reported that French had been calling
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her5 and sending her messages via text, email, and various social
media platforms throughout the day. She also told Drost that some
of her friends had told her that French was looking for her on the
University of Maine campus and that she had seen French during a
trip to a local store with a friend and assumed French was
following her. Nardone agreed to go to the Orono Police Station
to complete a sworn written statement.
Nardone's statement recounted her version of the
overnight dispute, described French's attempts to communicate with
her throughout the day, and stated that French's conduct
"terrified" her. While at the police station, Nardone received
additional communications from French, which she showed to the
officers. She also provided Officer Drost copies of all other
messages she had received from French on February 18, 2016.6 At
10:54 p.m., French emailed Nardone asking where she was, followed
by a second email about forty-five minutes later stating "I will
find u." Nardone asked the officers whether French was in trouble
and they replied that he was.
5Several calls were from a "blocked" number. Nardone did
not answer those calls, but she assumed they were from French.
French appears to concede that he made at least some of the blocked
calls.
6The parties stipulated that the copies Nardone provided to
Officer Drost were authentic.
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Based on the overnight events, their conversations with
Nardone, and French's continued attempts to contact Nardone,
Officer Drost and Sergeant Merrill decided to arrest French for
harassment. Nardone agreed to assist in that effort. The next
time French called Nardone, at 12:30 a.m. on February 19th, she
was still at the police station and answered the call on
speakerphone, with the officers listening. Nardone told French
that he was "not supposed" to talk to her, and neither officer
corrected Nardone's apparent misunderstanding of the CHN, which
prohibited harassment but not all communication. French responded
that he was concerned for Nardone's safety and was simply trying
to discuss their fight with her.
Nardone agreed to meet French at her residence in the
early morning hours of February 19th. Drost accompanied Nardone
home and waited inside for French. Upon French's arrival, Drost
promptly arrested him for harassing Nardone. The charges were
eventually dropped by the state for insufficient evidence.
B. The September 2016 Incident
At 3:19 a.m. on September 14, 2016, the Orono Police
Department received a report of a possible break-in at Nardone's
residence. Orono Police Officers Travis Morse and Christopher
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Gray responded and, upon their arrival, obtained sworn statements
from Nardone and her roommate, McDonald.7
Nardone reported that, at some point after the February
incident, Nardone and French reconciled. She explained that she
was not dating French, but that they had seen each other at a local
bar earlier that evening. She told the officers that when she was
driving away from the bar, French ran into the street toward her
vehicle and accused her of drunk driving. French denies that
allegation. Nardone recalled that, upon arriving home, she and
her roommate locked the doors, Nardone placed her phone on her
bedside table, and she went to sleep around 12:30 a.m. When she
awoke at 3:00 a.m., her phone was missing. Nardone and McDonald
looked around for the phone and discovered that their apartment
door was unlocked. Nardone told Officers Morse and Gray that she
suspected French had broken in and stolen her cell phone. She
also explained that French had taken her keys the prior week and
had not yet returned them. Sometime between 4:00 and 4:30 a.m.,
the officers left Nardone's residence and returned to the police
station.
Shortly thereafter, at approximately 4:43 a.m., Officers
Morse and Gray responded to a second call from Nardone reporting
that she and her roommate had seen French attempting to enter their
7 Officer Morse wore a body camera that recorded the events
of the morning. Officer Gray did not wear a body camera.
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home, but that he had run off when the women screamed. As the
officers approached Nardone's building, they received another
report that French had just been seen running down the street
toward his apartment. They then went directly to French's
apartment. At some point, two additional officers, Detective
Fearon and Officer Orr from the nearby Old Town Police Department,
arrived on the scene.8
French's residence had a small front porch with a single
door. Appellees describe French's residence as "more akin to an
apartment building" -- presumably compared to a single-family home
-- but they fail to further explain that comparison. All we can
glean from the record is that the dwelling has a single front
entryway, three young adult males lived in the residence, there is
a single kitchen, and French had a separate bedroom. Viewed from
the street, a driveway is adjacent to the residence on the right,
and, on the left, a narrow strip of grass -- four or five feet
wide -- separates the property from the neighbor's adjacent
driveway. On the left side of French's residence, there is a
cellar window at ground level and a bedroom window that is low
enough for a person of average height to reach the window frame.
The record does not provide an explanation for why police
8
officers from both Orono and Old Town responded to Nardone's 911
call. It appears that Nardone's residence was located in Orono
but was close to the Old Town line. In any event, Detective
Fearon, Officer Orr, and the Old Town Police Department were not
named as defendants in French's complaint.
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Upon their arrival at French's apartment, the officers
sought to speak with French about his suspected criminal activity.
In pursuit of that goal, the officers entered the curtilage of
French's home several times to try to convince him to come outside
and talk. That is, the officers knocked on the front door and
French's bedroom window frame and repeatedly yelled for French to
come to the front door. We recount the details of the officers'
misconduct within the curtilage of French's home in Part IV.
Eventually, French reluctantly came to the door ("When
I went to the door to speak to the police, I felt I had no
choice."). Officer Morse asked French whether he had been at
Nardone's residence. According to Morse, French's response was
jumbled and did not make sense. Morse asked French about Nardone's
cell phone and French responded that he did not have it. The
officers pressed French further and, eventually, he said the phone
was inside and he agreed to retrieve it. The officers told French
he could not reenter the residence without an officer, so French,
not wanting the officers to enter his home, asked his roommate,
Corey Andrews, to look for the cell phone. After a few moments,
Andrews returned and reported that his search was unsuccessful.
French told Andrews to check the basement stairs. Shortly
thereafter, Andrews returned with Nardone's phone.
French told the officers that he had visited Nardone's
residence for help with a puppy that he had recently adopted, but
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that he had entered only the front entryway. He claimed that he
found the phone on the ground outside of Nardone's building. He
insisted that he had picked it up with the intention of returning
it to Nardone the following day. The officers deemed French's
story not credible and arrested him for burglary at around 5:30
a.m. The state subsequently dismissed all charges because "the
victim refuse[d] to cooperate and [wa]s out of state."
C. Procedural History
In May 2018, French filed a complaint against the Orono
officers involved in the February and September 2016 incidents,
seeking damages under 42 U.S.C. § 1983 for violations of his Fourth
Amendment rights.9 Specifically, he claimed that he was arrested
without probable cause in February 2016 and that, in September
2016, the officers engaged in an unlawful and warrantless search
and seizure.10 Following discovery, the district court entered
summary judgment in favor of the defendants on all counts.
As we have explained, French also sued the Town of Orono
9
and the police chief and brought a variety of other constitutional
and state tort law claims against the officers, but none of those
claims are at issue in this appeal. See supra note 1.
French labels his September 2016 Fourth Amendment claim as
10
an unlawful seizure and explains in his reply brief that he has
maintained throughout these proceedings that the officers seized
him when they "effectively coerc[ed] him to come to the door
against his will." Appellees correctly note, however, that the
thrust of French's argument on appeal is whether the officers
violated his Fourth Amendment rights when they entered his
curtilage without a warrant to conduct several investigatory
"knock and talks." That is an unlawful search claim. Hence, we
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Regarding the February 2016 incident, the district court
concluded that the officers had probable cause to arrest French
for harassment and, even if they did not, the question of probable
cause was so debatable that the officers were entitled to qualified
immunity. As for the September 2016 incident, the court concluded
that "a fact finder could find that the officers' multiple attempts
to persuade [French] to come to the door at an early morning hour,
including attempts at a location other than the front door (i.e.,
a window of the home), [were] unreasonable and not within the
permissible knock and talk exception to the Fourth Amendment
warrant requirement." The court went on to conclude, however,
that the officers' conduct was protected by qualified immunity
because there was no clearly established law that rendered their
conduct unlawful.
II.
We review a district court's grant of summary judgment
de novo, viewing the record in the light most favorable to the
non-moving party. Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 52 (1st Cir. 2000). Summary judgment is
appropriate "if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(a). A genuine dispute as to
limit our analysis to whether the conduct of the officers
constituted an unlawful search.
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a material fact exists if a fact that "carries with it the
potential to affect the outcome of the suit" is disputed such that
"a reasonable jury could resolve the point in the favor of the
non-moving party." Santiago-Ramos, 217 F.3d at 52 (quoting Sánchez
v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)).
We begin by considering French's claim that he was
improperly arrested without probable cause in February 2016 and
then turn to his contentions concerning the September events.
III.
The Fourth Amendment protects an individual's right to
be free from unreasonable seizure. U.S. Const. amend. IV. A
warrantless arrest by a law enforcement officer is a reasonable
seizure under the Fourth Amendment "where there is probable cause
to believe that a criminal offense has been or is being committed."
Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Probable cause
exists where "at the moment of the arrest, the facts and
circumstances within the [officers'] knowledge and of which they
had reasonably reliable information were adequate to warrant a
prudent person in believing that the object of his suspicions had
perpetrated or was poised to perpetrate an offense." Roche v.
John Hancock Mut. Life Ins. Co., 81 F.3d 249, 254 (1st Cir. 1996).
In asking whether probable cause existed at the time of the arrest,
we look to the "totality of the circumstances." United States v.
Rivera, 825 F.3d 59, 63 (1st Cir. 2016). In doing so, we recognize
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that "probable cause is a fluid concept -- turning on the
assessment of probabilities in particular factual contexts -- not
readily, or even usefully, reduced to a neat set of legal rules."
Illinois v. Gates, 462 U.S. 213, 232 (1983).
Officer Drost and Sergeant Merrill arrested French for
harassment. Under Maine law, an officer may arrest "[a]ny person
who the officer has probable cause to believe has committed . . .
harassment." Me. Rev. Stat. tit. 17-A, § 15(1)(A)(12). Harassment
is defined in the statute as "engag[ing] in any course of conduct
with the intent to harass, torment or threaten another person,
[a]fter having been notified, in writing or otherwise, not to
engage in such conduct" by a law enforcement officer within one
year or by a court. Id. § 506-A(1)(A)(1). The notice requirement
was met when French was served with the CHN, which tracked the
language of § 506-A(1)(A)(1). French does not contest notice. He
claims only that the officers lacked probable cause to arrest him.
The undisputed facts show that French used several
different communication platforms to call and message Nardone
repeatedly despite receiving no response from her.11 The content
of the messages ranged from pleas to talk and attempts to arrange
French contends in his brief that "[t]here is no clear
11
evidence that Nardone ever read [French's] messages." The
stipulated facts demonstrate, however, that Nardone described the
messages she received from French to Drost and provided Drost with
screenshots of the messages.
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an exchange of property to threatening suicide, inviting Nardone
to his funeral, and telling Nardone that he would "find" her.
Nardone provided a sworn statement to the Orono Police explaining
that French's conduct terrified her. She also reported to the
officers that French had been looking for her on the University of
Maine campus12 and that he had followed her to the parking lot of
a local store. Those facts, considered in the totality of the
circumstances, were sufficient to support a finding of probable
cause to believe that French was engaging in a course of conduct
with the intent to torment, threaten, or harass Nardone.
French's arguments to the contrary are unpersuasive. He
first argues that the officers erroneously misunderstood the CHN
as prohibiting all contact, even lawful contact, with Nardone.
The record supports that claim, but it does not alter the probable
cause analysis, which is based on objective factors and does not
12 French denies this allegation and contends that the
officers could not rely on the information to establish probable
cause because it was hearsay -- Nardone told the officers that she
learned French was looking for her on campus from a friend. We
have explained, however, that "hearsay may contribute to the
existence of probable cause so long as there is a 'substantial
basis' for crediting the hearsay information." United States v.
Poulack, 556 F.2d 83, 87 (1st Cir. 1997). Here, the officers found
Nardone credible and articulate, and reviewed corroborating
messages about the incident from her phone. Hence, the officers
were permitted to rely on that information to support their finding
of probable cause. See Forest v. Pawtucket Police Dep't, 377 F.3d
52, 57 (1st Cir. 2004) (explaining that officers are entitled to
rely upon a "credible complaint by a victim to support a finding
of probable cause" without corroborating every aspect of the
complaint).
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account for the "actual motive or thought process of the officer."
Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir. 2009)
(quoting Bolton v. Taylor, 367 F.3d 5, 7 (1st Cir. 2004)). The
issue is whether French's cumulative communications and behavior
provided a reasonable basis for the officers to conclude that he
engaged in conduct criminalized by the state statute, not whether
the officers also took into account some contact that -- viewed in
isolation -- actually may have been lawful.
French also contends that the district court's finding
of probable cause cannot stand because the court failed to compare
the facts known to the officers with the elements of the statute
-- including intent -- when assessing probable cause. However,
probable cause is a "fluid concept," and a district court need not
engage in an "excessively technical dissection" of the elements
supporting probable cause. Gates, 462 U.S. at 232, 234. Such a
technical assessment confuses probable cause with the standard
required to secure a criminal conviction. Id.
Here, Drost and Merrill were aware of reasonably
reliable facts that demonstrated a pattern of unwanted and
continued contact that ranged from innocuous to threatening, and
they reasonably inferred criminal intent from that objective
information. See Cox v. Hainey, 391 F.3d 25, 34 (1st Cir. 2004)
("[T]he practical restraints on police in the field are great[]
with respect to ascertaining intent and, therefore, the latitude
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accorded to officers considering the probable cause issue in the
context of mens rea crimes must be correspondingly great.").
French's attempt to explain away each of the many
messages he sent to Nardone -- by claiming he was seeking to
exchange property or expressing concern for her wellbeing -- is
similarly unpersuasive. Probable cause is based on the totality
of the facts and circumstances known to the officers at the time
of the arrest. See United States v. Flores, 888 F.3d 537, 544
(1st Cir. 2018) ("Attempting to analyze each piece of evidence in
a vacuum is inconsistent with Supreme Court case law, which makes
pellucid that each item is to be considered as part of the totality
of the circumstances."). Whether French had a seemingly innocent
reason for sending a particular message or making a particular
call is thus irrelevant. The frequency, content, and context of
the messages and calls collectively, in combination with the other
facts and circumstances known to the officers -- Nardone's written
statement, allegations that French was looking for Nardone on
campus, and his following her to a local store -- were adequate to
support a finding of probable cause.
In sum, the district court did not err in concluding
that the record supported a finding that the officers had probable
cause to arrest French for harassing Nardone. Even if that
conclusion was debatable -- and for the reasons already explained,
we do not think it is -- qualified immunity would attach and
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French's claim would still fail. As the district court explained,
it is well established that "in the case of a warrantless arrest,
if the presence of probable cause is arguable or subject to
legitimate question, qualified immunity will attach." Cox, 391
F.3d at 31. The district court thus properly granted summary
judgment in favor of Officer Drost and Sergeant Merrill on French's
Fourth Amendment claim arising out of the February 2016 arrest.
IV.
In the realm protected by the Fourth Amendment, the "home
is first among equals." Jardines, 569 U.S. at 6. To give practical
effect to the protection of the home, its "curtilage" -- the area
"immediately surrounding and associated with the home" -- is
treated as "part of the home itself" and subject to the same
heightened protection. Id. (quoting Oliver v. United States, 466
U.S. 170, 180 (1984)). French contends that Officers Morse and
Gray violated his Fourth Amendment rights when, in the early
morning hours of September 14, 2016, they entered the curtilage of
his home, repeatedly knocked on his front door and bedroom window,
shouted his name, and urged him to answer the door, all without a
warrant and in an attempt to investigate whether he had committed
a crime.
The district court agreed that "a fact finder could find
that the officers' multiple attempts to persuade [French] to come
to the door at an early morning hour, including attempts at a
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location other than the front door (i.e., a window of the home),"
went beyond a permissible "knock and talk" and thus violated
French's Fourth Amendment rights. However, the district court
concluded that the unlawfulness of the officers' actions was not
"clearly established" at the time and, thus, that they were
entitled to qualified immunity.
The officers do not challenge on appeal the district
court's finding on the constitutional violation issue. Thus, we
focus our qualified immunity analysis on whether the unlawfulness
of the officers' conduct was "clearly established" at the time of
the events in this case.
A violation of "clearly established" law means that the
law rendering the officers' conduct unlawful was "sufficiently
clear" at the time such that a "'reasonable official would
understand that what he is doing' is unlawful." District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011)). In other words, the
unconstitutionality of the officer's conduct must be beyond debate
in light of an existing principle of law "dictated by 'controlling
authority' or 'a robust consensus of cases of persuasive
authority.'" Id. at 589-90 (quoting al-Kidd, 563 U.S. at 741-42).
The existing legal principle need not be derived from a
case "directly on point," but precedent must "place[] the statutory
or constitutional question beyond debate." White v. Pauly, 137 S.
- 19 -
Ct. 548, 551 (2017) (per curiam) (quoting Mullenix v. Luna, 577
U.S. 7, 12 (2015)); see also Taylor v. Riojas, 141 S. Ct. 52, 53-
54 (2020) (per curiam) (reversing the Fifth Circuit's conclusion
that the officers were not given "fair warning" that "prisoners
could not be housed in cells teeming with human waste for only six
days" because, even though there was no controlling precedent
directly on point, "no reasonable correctional officer could have
concluded that . . . it was constitutionally permissible to house
[the plaintiff] in such deplorably unsanitary conditions for such
an extended period of time"). To that end, general statements of
the law may give "'fair and clear warning' to officers" so long
as, "in the light of the pre-existing law[,] the unlawfulness [of
their conduct is] apparent." White, 137 S. Ct. at 552 (first
quoting United States v. Lanier, 520 U.S. 259, 271 (1997); then
quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also
Hope v. Pelzer, 536 U.S. 730, 741 (2002) ("[O]fficials can still
be on notice that their conduct violates established law even in
novel factual circumstances."). A rule is too general, however,
"if the unlawfulness of the officer's conduct 'does not follow
immediately from the conclusion that [the rule] was firmly
established.'" Wesby, 138 S. Ct. at 590 (quoting Anderson, 483
U.S. at 641).
Against that backdrop, we conclude that, in light of
Jardines and the nature of the conduct here, taken as whole, no
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reasonable officer could have thought that what the Orono police
did was consistent with the Fourth Amendment. To understand why,
we first review Jardines; we then turn to the facts of this case.
A. Florida v. Jardines
In Jardines, the Miami-Dade Police Department received
a tip that the defendant was growing marijuana in his home. 569
U.S. at 3. After surveilling the home for a period of time, two
officers entered the curtilage with a drug-sniffing canine ("K-
9"). Id. at 4. On the defendant's front porch, the dog alerted
to the presence of drugs. Id. Based on the dog's signaling, the
officers applied for and secured a search warrant. Id. Upon
executing the warrant, the officers discovered several marijuana
plants in the defendant's home and charged the defendant with drug
trafficking. Id. At trial, the defendant sought to suppress the
marijuana evidence as the fruit of an unlawful search. Id. at 4-
5. The trial court granted the motion and the state appellate
court reversed. Id. at 5. The Florida Supreme Court then reversed
the appellate court and the United States Supreme Court granted
certiorari. Id.
Justice Scalia, writing for the majority, labeled the
case as "straightforward." Id. The officers entered a
constitutionally protected area -- the curtilage of the home --
without a warrant to investigate the commission of a crime and,
hence, the Fourth Amendment was implicated. Id. at 6-7. Whether
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the Fourth Amendment was violated, the Court explained, required
an assessment of whether the officers' investigation in a
constitutionally protected area "was accomplished through an
unlicensed physical intrusion." Id. at 7. In the Court's words,
"an officer's leave to gather information is sharply circumscribed
when he steps off [public] thoroughfares and enters the Fourth
Amendment's protected areas." Id. Because it was undisputed that
the officers "had all four of their feet and all four of their
companion's firmly planted on the constitutionally protected
extension of Jardines' home, the only question" for the Court was
"whether [the homeowner] had given his leave (even implicitly) for
[the officers] to do so." Id. at 8.
Focusing on implicit consent, the Court recognized that
a license to enter another's property may be implied "from the
habits of the country." Id. (quoting McKee v. Gratz, 260 U.S.
127, 136 (1922)). Indeed, "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." Id. (quoting Breard v. City of Alexandria, 341 U.S. 622,
626 (1951)). That implicit license, the Court explained,
"typically permits the visitor to approach the home by the front
path, knock promptly, wait briefly to be received, and then (absent
invitation to linger longer) leave." Id. The Court underscored
the simplicity of that license, explaining that "[c]omplying with
- 22 -
the terms of that traditional invitation does not require fine-
grained legal knowledge; it is generally managed without incident
by the Nation's Girl Scouts and trick-or-treaters." Id. For that
reason, "a police officer not armed with a warrant may approach a
home and knock, precisely because that is 'no more than any private
citizen might do.'" Id. (quoting Kentucky v. King, 563 U.S. 452,
469 (2011)).
The Court went on to find that the officers exceeded the
scope of the implicit social license there because they
"introduc[ed] a trained police dog to explore the area around the
home in hopes of discovering incriminating evidence," and "[t]here
is no customary invitation to do that." Id. at 9. The Court
explained that the license implied by societal norms that invites
a visitor to the front door to knock and attempt to speak with the
occupant does not extend "[a]n invitation to engage in canine
forensic investigation" in the curtilage of the home. Id. The
Court concluded that, although the officers in Jardines remained
within the physical area covered by the license, their behavior
exceeded that "which . . . anyone would think he had license to
do" while on the property of another. Hence, they exceeded the
scope of the implicit license authorizing their entry onto the
curtilage. Id. at 10.
As Justice Scalia put it: "To find a visitor knocking
on the door is routine (even if sometimes unwelcome) [but] to spot
- 23 -
that same visitor exploring the front path with a metal detector,
or marching his bloodhound into the garden before saying hello and
asking permission, would inspire most of us to -- well, call the
police." Id. at 9. Because the officers "learned what they
learned only by physically intruding on [the] property to gather
evidence" without a warrant and in excess of any implied license
to do so, they violated the Fourth Amendment. Id. at 11. Again
commenting on the simplicity of the rule, the Court observed that
"[o]ne virtue of the Fourth Amendment's property-rights baseline
is that it keeps easy cases easy." Id.
B. Applying Jardines
1. The Unconstitutional Conduct of the Officers
Officers Morse and Gray arrived at French's home shortly
before 5:00 a.m. They observed lights on in the home and decided
to conduct a "knock and talk" rather than immediately apply for a
warrant. The officers entered the property, walked onto the front
porch, knocked on the front door, and announced that they were
police officers seeking to speak with French. No one answered and
the officers left the property.13 At this point, there was nothing
constitutionally infirm about the officers' conduct, which was
expressly permitted by the "knock and talk" exception to the
warrant requirement. Morse and Gray initially did no more than a
13Although Officer Morse was wearing a body camera, it did
not record the initial knock and talk.
- 24 -
member of the public might be expected to do -- enter the
curtilage, knock on the front door seeking to speak with an
occupant, wait to be received and, receiving no response, leave.
See id. at 9-10. Because this behavior was consistent with the
conduct permitted by the implied social license, the officers'
initial entry onto the curtilage was lawful. Thus, we focus our
clearly established law analysis on the conduct of the officers in
the wake of that first lawful entry onto the curtilage, and
consider it in totality. It is that conduct in the aggregate that
requires the conclusion that the officers violated clearly
established law.
After the initial attempted knock and talk, Officers
Morse and Gray left the property. Morse went to speak with
Nardone, and Gray stayed near French's home to surveil the
property. While watching the property, Gray walked onto the
neighbor's adjacent driveway, which provided an unobstructed view
of the narrow strip of grass, the bedroom window, and the cellar
window of French's home. From there, Gray observed a young man
peering out the basement window. Then, still standing on the
neighbor's driveway, Gray shined his flashlight through the
window, which caused the young man to cover the window and turn
off the basement lights. Gray then returned to the front porch of
French's building and again knocked on the front door, but no one
answered. The knocking apparently caused a dog in the home "to
- 25 -
bark frantically." At that point, Gray's incident report recounts
that "still no one came to the door. More lights were quickly
being turned off in the residence. Window coverings which looked
like blankets were drawn over the open windows as well."14
Morse then returned from Nardone's apartment and, along
with the two Old Town police officers (Detective Fearon and Officer
Orr), joined Gray off the property but near French's building.
Instead of honoring the clear signals that the occupants of the
home did not wish to receive visitors, Morse walked back onto the
property and, peering through a drawn window covering, saw that a
light remained on in the kitchen. Morse then rejoined the other
officers and told them that he would return to the station to apply
for a search warrant. Fearon suggested that the officers attempt
another "knock and talk," to which Morse responded that he and
Officer Gray "had already knocked" and that "[he] didn't think
that . . . French would respond." See Affidavit of Travis Morse,
Dkt. No. 35-22.
Ignoring Morse's hesitation and suggestion that the
officers should apply for a search warrant, the officers persisted
14 In his incident report, Gray states that Morse was still
at French's residence when Gray noticed the young man peering out
of the basement window and that Morse and Gray proceeded to knock
on the front door a second time together. In his sworn affidavit
submitted to the district court, however, Gray explains that Morse
had already left to speak with Nardone when Gray proceeded to knock
a second time. Morse's affidavit also confirms that fact.
- 26 -
in their efforts to get French to come out of his home.15 This
time, Fearon and Morse went to the left side of the house, walked
through the curtilage along the narrow strip of grass and located
what they had reason to believe was French's bedroom window.16
They knocked forcefully on the window frame and yelled for French
to come out and talk. Fearon also shined his light into the
bedroom. At the same time, Officer Gray returned to the front
porch, knocked on the front door, and told French to come outside.
The simultaneous knocking apparently caused the dog
inside the home to start barking loudly again. At some point,
Andrews finally answered the front door and, after a brief
discussion with Gray, agreed to look for French. According to
French's affidavit, Andrews decided to answer the door because he
was afraid that the police would break the door down, which would
cause his dog to become defensive and could result in the police
shooting the dog. A short while later, French, feeling as though
he "had no choice," came to the door.
By the time French came to the door, the officers had
entered his property four times. The first entry occurred when
15Officer Orr agreed to canvass the area to see if she could
locate French and did not return to French's residence until after
he was arrested.
16 The officers believed that window was in French's bedroom
based on a visit to the residence in November 2015 that involved
French.
- 27 -
Morse and Gray initially approached French's residence by the front
path, knocked on the front door, and asked French to come to the
door. The second occurred when Gray, after he shined his
flashlight through the basement window from the neighbor's
driveway and saw a young man looking out, again approached the
home by the front path, knocked on the front door, and asked French
to come to the door. This second entry caused the occupants of
the home to quickly turn off lights and cover windows. The third
entry involved only Officer Morse when, after returning from
Nardone's residence, he reentered the property, peered through a
drawn window covering, and saw a light on in the kitchen. Morse
then rejoined the other officers and recommended applying for a
warrant, but Detective Fearon suggested that they try again. On
the fourth entry, Morse and Fearon walked through the curtilage of
French's home, located his bedroom window, knocked on the window
frame, and asked him to come out, while Gray reentered the property
by the front path, knocked on the front door, and asked French to
come to the door.
2. Violating Clearly Established Law
While the officers' conduct does not involve the
gathering of evidence from the curtilage of French's home with the
help of a dog, it does plainly demonstrate that, if we consider
their actions as a whole, they exceeded the scope of the implicit
social license that authorized their presence on French's
- 28 -
property. Despite obvious signs that the occupants of the home
were aware of and did not want to receive visitors -- their refusal
to answer the door upon Morse and Gray's initial knock and Gray's
second knock, and their swift covering of windows and turning off
lights in response to that second knock -- the police doubled down
on their efforts to coax French out of the home. Any reasonable
officer would have understood that their actions on the curtilage
of French's property exceeded the limited scope of the customary
social license to "approach the home by the front path, knock
promptly, wait briefly to be received, and then (absent invitation
to linger longer) leave." Jardines, 569 U.S. at 8. Indeed,
Officer Morse revealed such an understanding when he observed that
French was not likely to come to the door upon another attempt and
that the officers should secure a warrant. Yet, the officers
disregarded Morse's advice and reentered the curtilage without a
warrant.
Once back in the curtilage, the officers then upped the
ante in their attempts to convince French to come out of his home
by, among other things, continuing to knock on his front door,
locating and knocking on his bedroom window frame, and yelling for
him to come out of his home. The officers could not reasonably
have thought that an invitation to engage in such conduct
"inhere[s] in the very act of hanging a knocker" on the front door,
id. at 9, or that their actions were "no more than [what] any
- 29 -
private citizen might do," id. at 8 (quoting King, 563 U.S. at
469). There is no implicit social license to invade the curtilage
repeatedly, forcefully knock on the front door and a bedroom window
frame, and urge the residents to come outside, all in pursuit of
a criminal investigation. As such, the officers' behavior was
plainly inconsistent with Jardines, which clearly established that
an implicit social license sets the boundaries of what acts
officers may engage in within the curtilage of the home, absent
exigent circumstances.17 See id. at 8-10; see also King, 563 U.S.
at 469-470 ("When law enforcement officers who are not armed with
a warrant knock on a door . . . the occupant has no obligation to
open the door or to speak. . . . And even if an occupant chooses
to open the door and speak with the officers, the occupant need
not allow the officers to enter the premises and may refuse to
answer any questions at any time."); Hopkins v. Bonvicino, 573
F.3d 752, 765 (9th Cir. 2009) ("The mere fact that [the defendant]
did not answer the door cannot tip the balance in the officers'
favor, since nothing requires an individual to answer the door in
response to a police officer's knocking." (citations omitted)).
The officers' attempts to undercut the straightforward
application of Jardines to this case are unpersuasive. They first
17The officers do not claim that their conduct was justified
by exigent circumstances and, as we shall explain, the dissent's
exigent circumstances argument was not made below or on appeal.
- 30 -
argue that Jardines could not have clearly established the
unlawfulness of the officers' conduct because an officer reading
Jardines should anticipate only that, "if he or she brings a
trained drug-sniffing K-9 onto the porch or otherwise into the
curtilage of a residence without a warrant or consent of the
homeowner, then the officer may be liable for an unlawful search."
Their argument reflects the untenable position that clearly
established law requires cases with practically identical facts.
The majority in Jardines made clear that "[i]t [was] not the dog
that [was] the problem" there. 569 U.S. at 9 n.3. The drug-
sniffing K-9 was significant in Jardines because the officers used
the dog to "gather[] information in an area belonging to Jardines
and immediately surrounding his house -- in the curtilage of the
house . . . . And they gathered that information by physically
entering and occupying the area to engage in conduct [a search for
evidence of a crime] not explicitly or implicitly permitted by the
homeowner." Jardines, 569 U.S. at 5-6. Indeed, the Court added,
"[w]e think a typical person would find it a cause for great alarm
. . . to find a stranger snooping about his front porch with or
without a dog." Id. at 9 n.3 (internal quotation marks omitted).
Here, as we have explained, the conduct "not explicitly
or implicitly permitted by the homeowner" was the officers'
repeated reentry onto the property and the aggressive actions taken
by the officers. In Jardines and here, police officers not armed
- 31 -
with a warrant engaged in conduct in pursuit of a criminal
investigation within the curtilage that was inconsistent with the
implied social license pursuant to which an officer may enter the
curtilage of a home. See id. at 8-9 ("[A] police officer not armed
with a warrant may approach a home and knock, precisely because
that is 'no more than any private citizen might do.' . . . . [T]he
background social norms that invite a visitor to the front door do
not invite him there to conduct a search." (quoting King, 563 U.S.
at 469)).
The officers also argue that a rule abstracted from
Jardines is too general and "fails to appreciate the myriad
different circumstances law enforcement officers are confronted
with in the field." The officers point to conflicting cases in
the wake of Jardines that involve either one or some combination
of the factors present in this case. For example, the officers
cite disagreement regarding (1) whether a knock and talk conducted
early in the morning is inherently unlawful, see, e.g., United
States v. Lundin, 817 F.3d 1151, 1159 (9th Cir. 2016) (explaining
that the officers knocked "around 4:00 a.m. without evidence that
[the defendant] generally accepted visitors at that hour, and
without a reason for knocking that a resident would ordinarily
accept as sufficiently weighty to justify the disturbance"); Young
v. Borders, 850 F.3d 1274, 1286 (11th Cir. 2017) (Hull, J.,
concurring) (rejecting the dissent's assertion that an officer
- 32 -
"exceeded the scope of the permissible knock and talk exception
because it was 1:30 a.m., he unholstered his weapon, and he knocked
so loudly"); (2) whether officers may survey the curtilage for a
different entry to the home if a knock and talk at the front door
is unsuccessful, see Carroll v. Carman, 574 U.S. 13, 20 (2014)
(per curiam) (holding that it was not beyond debate whether
officers conducting a knock and talk may knock at any entrance
open to visitors rather than just the front door); (3) whether
knocking for more than a few minutes violates the knock and talk
rule, see United States v. Carloss, 818 F.3d 988, 998 (10th Cir.
2016) ("We decline to place a specific time limit on how long a
person can knock before exceeding the scope of th[e] implied
license."); (4) whether more than one knock and talk can be
attempted in a limited time period, see United States v. Walker,
799 F.3d 1361, 1362-64 (11th Cir. 2015) (finding it was reasonable
for officers to make a third attempt to knock and talk at 5:00
a.m. where the first two knocks had elicited no response and were
conducted the prior evening -- at 9:00 p.m. and at 11:00 p.m. --
and the officers observed lights on in the home and in a car parked
outside before reentering the property); and (5) whether the
number of officers present matters, see United States v. White,
928 F.3d 734, 741 (8th Cir. 2019) ("[W]e fail to see why the number
or type of officers in this case would render the second entry
impermissible.").
- 33 -
Those cases do not detract from the clarity of Jardines'
application in this case. We are not concerned only with the
number of officers present or the hour, location, or length of the
attempted knock and talks. Instead, we are focused on the legal
principle at the core of Jardines -- the scope of the implied
license to enter the curtilage -- and the application of that
principle to the conduct of the officers in totality. Here, as
in Jardines, the officers had their feet "firmly planted on the
constitutionally protected extension of [the] home" and their
activity was therefore limited to that which was implicitly
authorized (absent explicit consent) by the homeowner. Jardines,
569 U.S. at 7. It does not take "fine-grained legal knowledge" to
understand that the officers' actions in this case exceeded the
implicit authorization to enter the property of another without a
warrant. See id. at 8. Far from engaging only in conduct that a
homeowner might reasonably expect from a private citizen on their
property -- that is, again, approaching the door, knocking
promptly, and leaving if not greeted by an occupant -- the officers
reentered the property four times and took aggressive actions until
French came to the door so that the officers could pursue their
criminal investigation. By so doing, the officers engaged in
precisely the kind of warrantless and unlicensed physical
intrusion on the property of another that Jardines clearly
established as a Fourth Amendment violation. Hence, the officers
- 34 -
violated clearly established law and are not entitled to qualified
immunity.
C. The Dissent
There are two major problems with the dissent. It goes
to great lengths to make an exigent circumstances argument that
the appellees never make. It also fails to address the principle
at the heart of Jardines: the scope of the knock and talk exception
to the warrant requirement is controlled by the implied license to
enter the curtilage.
1. Exigent Circumstances
The dissent tries to portray this case as one involving
exigent circumstances requiring the officers to act quickly "to
ensure the safety of a victim or prevent the destruction of
evidence." The exigent circumstances doctrine is a narrow
exception to the "'basic principle of Fourth Amendment law' that
searches and seizures inside a home without a warrant are
presumptively unreasonable." Groh v. Ramirez, 540 U.S. 551, 559
(2004) (quoting Payton v. New York, 445 U.S. 573, 586 (1980)).
"[O]fficers may enter a home without a warrant to render emergency
assistance to an injured occupant or to protect an occupant from
imminent injury," Brigham City v. Stuart, 547 U.S. 398, 403 (2006),
or when doing so "is reasonably necessary to head off the imminent
loss of evidence," United States v. Almonte-Báez, 857 F.3d 27, 33
(1st Cir. 2017). Officers must carry the heavy burden of
- 35 -
identifying an "objectively reasonable basis" for believing that
"there [wa]s such a compelling necessity for immediate action"
that the delay of obtaining a warrant could not be tolerated. Id.
at 32-31 (first quoting United States v. Samboy, 433 F.3d 154, 158
(1st Cir. 2005); then quoting Matalon v. Hynnes, 806 F.3d 627, 636
(1st Cir. 2015)).
The officers do not, however, argue on appeal -- and
they did not argue in their summary judgment motion below -- that
their actions were justified by exigent circumstances. The
officers do not claim that the safety of Nardone or the risk that
evidence would be destroyed was so acute that delay to seek a
warrant could not be tolerated. There is a single passing
reference to exigent circumstances in the appellees' briefing. It
appears in a parenthetical to a case citation and serves as a mere
description of the circumstances of the case cited.18 As we have
said, "[i]t is not enough merely to mention a possible argument in
the most skeletal way, leaving the court to do counsel's work,
18 In support of their argument that Jardines is ambiguous,
the officers pose a series of questions they contend are unanswered
by Jardines, each of which is followed by case citations allegedly
showing disagreement as to the answer. It is in that context that
the officers make their single ancillary reference to exigent
circumstances: "How loudly may an officer knock? See Kentucky v.
King, 563 U.S. 452, 468–69, 131 S. Ct. 1849, 1861 (2011) ('Police
officers may have a very good reason to announce their presence
loudly and to knock on the door with some force. A forceful knock
may be necessary to alert the occupants that someone is at the
door.') (discussing exigent circumstances exception to warrant
requirement)." Appellee's Br. at 37.
- 36 -
create the ossature for the argument, and put flesh on its bones."
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). We see
no reason here to depart from the well settled rule that "issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived."19 Id.
The dissent also seems to suggest that even if the
circumstances of this case did not amount to a true emergency
justifying application of the exigent circumstances exception to
the warrant requirement, the nature of the exigencies involved
expanded the scope of the license for the officers to enter
French's property to conduct a knock and talk. That argument
conflates the knock and talk and exigent circumstances exceptions.
Whereas the scope of the exigent circumstances exception is case-
specific and varies based on the nature of the exigency and the
severity of the underlying crime, see Welsh v. Wisconsin, 466 U.S.
19 To be sure, the officers were justifiably concerned about
Nardone's wellbeing given her credible accounts of French's
conduct that evening and throughout the entirety of his
relationship with her. But the officers plainly do not argue that
there was such an imminent risk that French would harm Nardone or
destroy evidence that they were justified in dispensing with the
warrant requirement on that ground, such that they could exceed
the social license recognized in Jardines. See generally Williams
v. Maurer, 9 F.4th 416, 435-36 (6th Cir. 2021) (holding that a
reasonable jury could find no exigent circumstances where the
officers "respond[ed] to a report of a [possible domestic]
disturbance, [but] when they arrived on the scene, there was no
indication of a tumultuous situation in [the] home and [they] did
not witness any violent behavior inside the apartment").
- 37 -
740, 750 (1984), the scope of the knock and talk exception is
limited to the implied social license to enter the property of
another regardless of the nature of the suspected crime of interest
to the officers, see Jardines, 569 U.S. at 8 ("[A] police officer
not armed with a warrant may approach a home and knock, precisely
because that is 'no more than any private citizen might do.'"
(quoting King, 563 U.S. at 469)). The dissent fails to point to
any case law suggesting otherwise.20
2. The Scope of the Implied Social License to Conduct a
Knock and Talk
The dissent claims that Jardines cannot have clearly
established the unlawfulness of the officers' conduct in this case
because the Court's reasoning in Jardines was dependent upon the
fact that the officers entered the property with a drug-sniffing
dog "to gather information on the curtilage, not to speak with a
resident." According to the dissent, because the officers in this
case entered the property with an intent to speak to French and
20 The dissent also suggests that the scope of the implied
license to conduct a knock and talk might vary "when officers are
investigating a crime for which state law authorizes a warrantless
arrest." But that consideration is irrelevant. Probable cause to
arrest a suspect, even if that is all that is required under state
law, cannot overcome the protections that the Fourth Amendment
affords to a person inside his or her home under federal law. See,
e.g., Morse v. Cloutier, 869 F.3d 16, 23 (1st Cir. 2017)
("Arresting a suspect inside his home without a warrant violates
the Fourth Amendment unless some 'well-delineated exception[]'
shields the intrusion." (quoting United States v. Romain, 393 F.3d
63, 68 (1st Cir. 2004) (alteration in original)).
- 38 -
not to engage in a search with a drug-sniffing dog, Jardines is
inapposite. The dissent's attempt to limit Jardines to its facts
ignores the animating principles of Jardines21 -- and the reason
Justice Scalia labeled the case "a straightforward one." Id. at
5. It also ignores the Court's insistence that it was not the dog
that was the problem in that case.22 See id. at 9 n.3.
To reiterate, the constitutional violation in Jardines
was the officers' "physical[] ent[rance] and occup[ation]" on the
curtilage of Jardines' home "to engage in conduct not explicitly
or implicitly permitted by the homeowner." Id. at 6. Because
there was no explicit permission by Jardines, the Court reasoned
that the officers' permission to enter the property was authorized
21The dissent unconvincingly tries to dismiss Jardines'
explanation of the scope of the implied social license as mere
dicta. But the Court's careful consideration of the contours of
the implied license, and whether the officers' conduct on Jardines'
curtilage was authorized by that license, was crucial to its
holding that the officers violated the Fourth Amendment.
The dissent also tries to disaggregate the conduct of the
22
officers and argues that, because Detective Fearon is not a
defendant in this case, his actions should not be taken into
account in determining whether Morse and Gray violated French's
Fourth Amendment rights. But that approach ignores the fact that
Fearon, Morse, and Gray acted in concert while pursuing the
investigation of French in the curtilage of the residence. It may
have been Fearon who suggested that the officers attempt another
knock and talk before applying for a warrant and he may have been
the first one to knock on French's window, but Morse and Gray
agreed with his proposal, participated in the final re-entry on
French's property, and Morse joined Fearon in knocking on French's
bedroom window. Hence, carving out Fearon's conduct accomplishes
nothing in terms of Morse and Gray's liability in this case.
- 39 -
by an implicit social license -- informed by "the habits of the
country" -- to enter the property of another and seek to speak
with an occupant. Id. at 8 (quoting McKee v. Gratz, 260 U.S. 127,
136 (1922) (Holmes, J.)). That license, the Court explained, has
both a physical and a purpose-based limitation. Id. at 9. In
other words, its scope "is limited not only to a particular area
but also to a specific purpose," both of which are defined by what
a homeowner might reasonably expect from a private citizen on the
homeowner's curtilage. Id. at 9. The Court concluded that the
officers abided by the terms of the physical scope of the license
-- their activities on the property were limited to areas that a
member of the public might be expected to visit. However, the
officers in Jardines exceeded the limited purpose authorized by
the license through their conduct. They did so by seeking evidence
of drugs with the help of a trained, drug-sniffing dog.
That the precise manner in which the officers in this
case exceeded the scope of the implied license differs from that
in Jardines is inconsequential. The officers in this case, like
the officers in Jardines, in the absence of any license to do so,
"physically intrud[ed]" on a suspect's property repeatedly and
engaged in intrusive conduct that no reasonable visitor could have
understood as impliedly authorized by a resident. Id. at 11. The
dissent portrays the officers' final, unlicensed entry on French's
property as a mere attempt to conduct a knock and talk. That
- 40 -
portrayal is unsupported by the record, given the contentious and
invasive conduct of the officers described above.
The dissent's attempt to detract from the clarity of
Jardines by invoking Carroll v. Carman, 574 U.S. 13 (2014) (per
curiam), and United States v. Walker, 799 F.3d 1361, 1364 (11th
Cir. 2015) (per curiam), is unpersuasive. In Carroll, instead of
knocking at the front door, officers traveled to the back of a
home and knocked at a sliding glass door that opened onto a ground-
level deck. 574 U.S. at 14. The Supreme Court held that it was
not clearly established that the officers were prohibited from
knocking "at an[] entrance that is open to visitors . . . [other]
than . . . the front door." Id. at 20. Here, our case involves
officers knocking on an occupant's bedroom window and not "an[]
entrance" other than the front door "that is open to visitors."
See id.
Walker is similarly inapposite. There, officers
attempted three knock and talks over a span of about eight hours.
799 F.3d at 1362. The officers first knocked at around 9:00 p.m.
and received no response. Id. They left and returned around 11:00
p.m. and noticed a car was parked outside of the home that had not
been there during their first attempt. Id. The officers knocked
again but saw no indication that anyone was inside of the home.
Id. The following morning, around 5:00 a.m., the officers drove
by the property and noticed that some lights were on in the home
- 41 -
and inside of the vehicle parked outside. Id. With the
recognition that someone was likely now in the home, the officers
approached a third time. See id. Before they could knock on the
door, however, the officers noticed a man inside of the vehicle
with his head resting on the steering wheel. Id. The officers
knocked on the car window to determine who the man was and whether
he needed medical attention. Id. Nowhere in Walker is there any
suggestion that the officers engaged in the kind of aggressive
conduct that we have described here.
As we have already explained, we are not concerned with
isolated facts like those presented in Carroll and Walker -- i.e.,
the number of officers present or the hour, location, or length of
the attempted knock and talks -- and whether those facts alone
might have supported a finding that the officers violated clearly
established law. We are concerned only with Jardines' clear
prohibition on the officers' conduct in this case which, as we
have explained, plainly exceeded the scope of the implied license
to enter the curtilage of French's home.23
23The dissent's notion that a neighbor -- let alone a group
of strangers visiting a home at 5:00 a.m. -- may, under the implied
social license, repeatedly knock on the front door, peer through
a drawn window covering, shine a flashlight through windows in the
home, and knock on a bedroom window frame, all while yelling for
the occupant to come outside, strains credulity and is contrary to
Jardines.
- 42 -
V.
In sum, we agree with the district court that Officers
Drost and Merrill had probable cause to arrest French for
harassment in February 2016 and, even if they did not, the question
of probable cause was debatable such that the officers were
entitled to qualified immunity. We therefore affirm that aspect
of the district court's summary judgment ruling.
As to the September 2016 incident, we conclude that,
viewing the summary judgment evidence in the light most favorable
to French, Officers Morse and Gray violated French's Fourth
Amendment rights by exceeding the lawful bounds of a warrantless
"knock and talk." We further conclude that the unlawfulness of
the officers' conduct was clearly established at the time by the
principles of law set forth in Florida v. Jardines. Accordingly,
we reverse the district court's grant of summary judgment as to
Count IX and remand for further proceedings consistent with this
opinion. Each party is to bear its own costs. See 1st Cir. R.
39(a)(4).
So ordered.
-Dissenting Opinion Follows-
- 43 -
LYNCH, Circuit Judge, dissenting in part. I join the
majority opinion as to the affirmance of summary judgment arising
from claims about the February arrest of Christopher French. I
strongly dissent from the reversal of the grant of qualified
immunity to Officers Gray and Morse as to the September 14
incident. In my view, the majority is wrong that Florida v.
Jardines, 569 U.S. 1 (2013), which concerned officers' entry onto
private property for the purpose of using a drug-sniffing dog on
the curtilage of the house, clearly established the purported
illegality of the officers' conduct in knocking at French's home
on September 14, 2016.
The doctrine of qualified immunity has sometimes been
abused, but the majority's denial of qualified immunity here is
flatly contrary to Supreme Court and circuit law and creates a
circuit split. Moreover, this unfortunate ruling will
disincentivize police from taking action after persons of any
gender have credibly alleged that they have been threatened and
are frightened by former romantic partners.
When they approached French's home, Officers Gray and
Morse were responding to an urgent and potentially dangerous
situation. French had twice that night broken into Samantha
Nardone's house and had stolen her phone from her bedside table,
Nardone had previously called the police for help in dealing with
French's harassment of her, and Nardone told the officers that she
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was scared of what French might do if he accessed the contents of
her phone. Given these circumstances and the state of the law in
2016, the officers' choice to knock several times at French's door
and window shortly after the second break-in was reasonable.
Nothing in Jardines clearly established otherwise. The officers
in this case acted sensibly and with restraint, and most certainly
should not be deprived of qualified immunity and sent back to face
damages claims against them, as the majority holds.
I.
The following key facts of the September 14, 2016,
encounter are those which would have been understood by any
reasonable officer in the shoes of Officer Morse, the lead officer,
and Officer Gray. These facts reveal why the majority is wrong in
its reading of Jardines and its conclusion that the law was clearly
established as to the implied license analysis. The facts also
demonstrate why the two officers are clearly entitled to qualified
immunity.
The supposed violation of French's Fourth Amendment
rights occurred sometime around 5:00 or 5:30 AM on September 14,
2016. This is what the officers knew at the time.
A. The Officers' First Visit to 60 Park Street.
The victims, Samantha Nardone and her roommates, called
the police department at or around 3:19 AM on September 14, 2016,
to report that their residence had been broken into. Nardone also
- 45 -
reported that her phone, which she had placed on her nightstand
before she went to sleep around 12:30 AM, was missing.
Officers Morse and Gray were dispatched immediately to
Nardone's residence at 60 Park Street in Orono, Maine. Both
officers were familiar with the history between French and Nardone
and knew that Nardone had several times in the past called the
Orono Police Department because of problems with French. Morse
was familiar with French because he, accompanied by Officer
Barrieau, had arrested French in November 2015 for violating his
conditions of release. From this prior incident, Morse knew that
French lived at 13 Park Street, a nearby multi-tenant house about
.2 miles from Nardone's house. He knew French did not live in a
single-family house. He also knew that French's room in that house
was on the first floor to the left of the front door. He had
spoken with other officers about French multiple times. Gray
testified at his deposition that he was familiar with French's
name in September 2016 and that it was "highly likely" he had read
French's previous arrest records.24
24 Nardone wrote in her police statement about the February
incident that she had gotten in an altercation with French and he
would not leave her home when she asked him to. She reported that
he tried to put her in a headlock, and she pushed him away. She
told him he had ten minutes to collect his items from her home
before she called the police. She was concerned for her safety,
so she locked herself and her roommates into one of the bedrooms.
French began jiggling the lock and started using a card to pop it
open. They held the knob so he could not pop it open. Moments
- 46 -
On the way to Nardone's house, Morse saw that lights
were on at French's house at 13 Park Street. When the officers
arrived, Nardone told them that she suspected French of breaking
in and taking her phone. She explained that French had stolen her
keys the previous week and still had them, though she had since
changed the locks. When she noticed her phone was missing, she
found that all of the doors she had locked before going to bed
were now unlocked.
Nardone stated that she was afraid French would do
something to her if he gained access to her phone and read what
was on it. She later added that "if he gets in [the phone], I'm
fucked." Nardone explained that she had put a passcode on her
cellphone, but that the passcode she had chosen was not secure and
that she thought he would be able to crack it. She thought that
if French had the phone he was "obviously gonna run" from his
apartment so that he would have time to look through the phone.
She said she was scared he would break in again that night and
wrote in her victim statement that she had reason to believe French
"would do it again (now/tonight)." Nardone also told the officers
she thought French might be drunk or on drugs because he was
"obviously fired up."
later, Nardone heard a "huge smash downstairs," ran down, and saw
"the TV was shattered face down on the floor."
- 47 -
Nardone told the police numerous good reasons for her
fear, including the events of that very night, of the prior week,
and from before that. Nardone explained that earlier in the night
on September 13, 2016, Nardone had run into French in a chance
encounter at the Roost, a local lounge. There, French came up to
her and they exchanged words; the interaction made her feel
uncomfortable in remaining there. So she left around 10:30 PM.
Nardone later drove over with her roommate Alicia
McDonald to see a friend who lived nearby. After the visit, the
two women attempted to drive home. French found them and stood in
the middle of the road to force them to stop. He yelled and swore
at Nardone, asking her where she had been, and accused her of drunk
driving. As Nardone tried to drive away, French jumped onto her
car.
As the police report recounts, "[o]nce Nardone made it
home she and McDonald locked all the doors and windows in fear
that French would come to their residence." Nardone checked her
phone and saw she had nine missed calls from a blocked number --
which she had reason to believe were from French -- and eleven
messages from French. Nardone had blocked French on all her social
media accounts and on her email and phone but was still receiving
messages from French on the "First Class" University of Maine
platform that she had been unable to block him on. French had
previously harassed her with calls from a blocked number in the
- 48 -
hours after being served a Cease Harassment Notice on February 18,
2016. On her roommate's advice, Nardone did not read the messages.
She told Morse she was "so freaking scared" when she went to bed.
Before falling asleep, she placed the phone on her nightstand.
Nardone woke up around 3:00 AM and saw that her phone was missing.
That was when she discovered that all the doors she had locked
before going to bed were now unlocked.
As to the prior week, Nardone explained to the officers
that she had broken up with French six days before, on September
8, 2016. That night, French had broken into Nardone's home and
stolen her keys and laptop. The following morning, Nardone noticed
that her laptop was gone, went to French's house to look for it,
and saw that her laptop was open on his bed and that he had been
going through her iMessages on her laptop. The next day, on
Saturday, September 10, Nardone went out with friends. Walking
towards a local bar, they saw someone watching them from the
kitchen window of French's house. When she returned home later,
her car keys and a spare key on her windowsill had disappeared,
and she had not been able to find them since. She told the officers
she suspected French had taken her keys a second time, so she had
changed the locks.
Nardone also told the officers that on a different,
previous occasion, French had taken Nardone's keys and she had
been afraid he would break in. The hardware store was closed so
- 49 -
she could not change her locks that night, so French's roommates
put sensors on French's doors and windows so that they would be
alerted if French left and they could warn Nardone. Nardone was
scared enough that night that she piled up furniture in front of
her bedroom door to make sure French could not get in. She changed
her locks the following day.
While the officers were at Nardone's apartment on
September 14, her roommate Jennifer Prince found that an upstairs
bathroom window had been opened and the items in the windowsill
knocked to the floor, indications that the window was the entry
point. Officer Morse took photographs of the window. Morse also
asked dispatch to arrange a "ping" on Nardone's phone with the
cellphone carrier to see if they could find out whether the phone
was at 13 Park, French's residence.
The officers left Nardone's home at approximately
4:26 AM. Shortly before leaving, they asked Nardone if she would
feel safe staying at the apartment. She repeated that she would
not feel safe if French got into her phone. They returned to the
police station to try to "ping" Nardone's phone to find its
location and figure out if it was at French's apartment. Nardone
had told them that she had tried to use iCloud to locate her phone,
but the phone had been turned off and so she could not locate it.
- 50 -
B. French's Second Break-In to Nardone's House
The fears which Nardone reported about French again
trying to break in that same night came true. At 4:43 AM, Nardone
called the police a second time and reported that French had come
back to her apartment. He entered through the front doorway, but
only got to the mudroom when the screams of Nardone's roommates
stopped his entry and caused him to flee.
Gray and Morse were dispatched again. While on their
way, dispatch told them that French had been seen running down the
road towards his home at 13 Park. They stopped at 13 Park on the
way and saw that there were lights on in the house. They knocked
on French's door. Nobody responded, so the officers left the
porch. The officers decided that Gray should stay on the road
near 13 Park while Morse went back to Nardone's residence at 60
Park to gather the account of its residents first-hand. Gray
walked down the driveway to the left of 13 Park and saw a man
peering out of the basement window of the building. Gray knocked
a second time on French's door.
Officers James Fearon and Melissa Orr from the Old Town
Maine Police Department were sent to join Morse at 60 Park.
Nardone and her roommates explained that French had broken in again
and that he was yelling that he needed help with his puppy. Nardone
stated that French was probably waiting for the police to leave
and her roommate said French would probably return "the second
- 51 -
[the police] leave." Morse asked if there was somewhere else that
they could go and encouraged them to go elsewhere for the rest of
the night.
That is what the officers knew of French's criminal
activities that night when they decided to return to 13 Park.
Among other things, they had every reason to believe (1) French
was a threat to Nardone and her roommates; (2) he had expressed
his anger in many ways toward them; (3) they had to move quickly,
particularly as he might read the email and messages on Nardone's
phone; (4) they had to move rapidly to prevent not just harm to
Nardone and her roommates, but the destruction of evidence: the
cell phone, the stolen keys, and whatever else he had taken, all
evidence of his break in; and (5) he had run down the street back
to his room and was still awake.
C. The Officers' Second Visit to French's Apartment
Morse and Fearon returned to French's home. The officers
discussed the best approach to finding and questioning French.
They felt they had probable cause and discussed seeking a warrant.
To obtain a warrant, the officers would have to return to the
police station and prepare an application and request for a
warrant. They estimated that would take at least half an hour
once back at the station. They then would have to drive to a
nearby town to get a judge to sign the warrant.
- 52 -
They discussed a further attempt at a knock and talk
and, if French appeared, questioning him. They had observed that
the lights which had been on were quickly turned off and the
windows were covered, confirming the view that someone was up and
awake. Morse explained to the other officers that he and Gray had
tried a knock and talk earlier on the first trip to 13 Park and
had gotten no response. Fearon, who is not a defendant (and whose
actions cannot be attributed to Morse and Gray) expressed his view
that they should attempt again to knock and talk.
The decision to proceed not with a warrant, but with a
knock and talk, in Gray's view, was based on the fact that it was
faster and easier. Gray stated that "if we believe somebody is
inside of the residence and we're looking to speak with that
individual and we have facts and circumstances surrounding the
situation that lead us to believe that he is inside of the
residence, we can knock to attempt to have that subject come out
and speak with us." Gray also stated that the appropriate place
to knock "depends on where the person that you're trying to contact
resides within the dwelling" and that he believed it was
permissible to bang on a window.
As to Morse, he stated at his deposition that he was
unaware of any standards that place limits on what time of day you
can knock and talk. Morse was aware that officers may enter
private property in exigent circumstances, which arise where there
- 53 -
is a risk that evidence will be destroyed, a person will be harmed,
or officer safety is at risk. Morse was also aware that Maine law
permits officers to arrest without a warrant "any person who the
officer has probable cause to believe has committed or is
committing . . . [d]omestic violence assault, domestic violence
criminal threatening, domestic violence terrorizing, domestic
violence stalking or domestic violence reckless conduct." Me.
Rev. Stat. tit. 17-A, § 15(1)(A)(5-B). While still at 60 Park,
Morse had said to Officer Fearon that they had enough to "hook"
French on harassment and stalking after his second break-in.
Having decided that a further knock and talk was
appropriate, Morse and Fearon went to a strip of grass on the side
of 13 Park. Morse stated that he did not know where the property
line was, but acknowledged that he was on the curtilage of 13 Park
when knocking on the window frame. In deciding to knock at the
window, he factored in that it was an apartment and that French
had non-relative roommates living with him. Morse's understanding
was that officers can knock several times during a knock and talk,
but must stop before it becomes unreasonable.
It was not the defendant officers but Fearon who then
knocked on the window frame of French's bedroom window. Only after
that did Morse knock on the window twice. The total time of the
two different officers knocking on the window frame was almost
exactly two minutes. For French to have responded to the window
- 54 -
knocking, he would have had to come out from his bedroom and go to
the front door.
Gray then knocked on the front door again and announced
their presence. The knocking had two immediate effects. One was
that a dog started barking. The officers said they could not tell
if the dog came from 13 Park or the very nearby neighboring home.
More importantly, within thirty seconds of Gray's knocking at the
front door, another tenant who lived at 13 Park who identified
himself as "Corey," came to the door. The officers asked if French
was home. Corey was not sure and asked if Gray wanted him to look
for French. Gray asked him to go look for French. Corey asked
French to come to the door and French then did so.
French came outside to speak to the officers. He refused
to acknowledge that he had Nardone's phone, but said that he would
look for it anyways. The officers did not permit French to go
alone inside to look for the phone, so French asked Corey to
retrieve the phone and told him where to look. After additional
questioning, Officers Morse and Gray arrested French for burglary
around 5:30 AM.
II.
"The doctrine of qualified immunity shields [police
officers] from civil liability so long as their conduct 'does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.'" Mullenix v. Luna,
- 55 -
577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223,
231 (2009)). To show that a rule is "clearly established," "[i]t
is not enough that the rule is suggested by then-existing
precedent." Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590
(2018). Instead, "existing precedent must . . . place[] the
statutory or constitutional question beyond debate." Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011). "This demanding standard
protects 'all but the plainly incompetent or those who knowingly
violate the law.'" Wesby, 138 S. Ct. at 589 (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). The inquiry into whether a
rule is clearly established "must be undertaken in light of the
specific context of the case, not as a broad general proposition,"
and "[s]uch specificity is especially important in the Fourth
Amendment context." Mullenix, 577 U.S. at 12 (quoting Brosseau v.
Haugen, 543 U.S. 194, 198 (2004) (per curiam)).
French and the majority argue that Jardines itself
clearly established that the officers' conduct on September 14,
2016, violated French's constitutional rights. I disagree for
several reasons. First, the holding of Jardines is not applicable
here because the facts are entirely distinct, and Jardines'
reasoning relied on facts not present here. Second, as made clear
by Supreme Court and circuit court decisions published after
Jardines, Jardines' general discussion of the knock and talk
exception was not adequately specific to clearly establish the
- 56 -
purported illegality of the officers' conduct here. Finally, the
majority seems to posit that the officers' actions somehow forced
French to come to the door. The majority relies on a self-serving
statement made by French after he instituted this litigation, but
certainly not made to the officers at the time of these events.
This argument by the majority suffers from at least three errors
in itself. First, the facts do not support this assertion.
Secondly, nothing in Jardines supports it. Thirdly, the majority's
looking at qualified immunity, not from the objective point of
view of the officers on the scene but from the point of view of
French, is clearly error. On the facts of this case, a reasonable
officer would easily understand that their actions had not forced
or coerced French to come to the door. There were no threats and
no overbearing of French's will.
As to the first issue, Jardines concerned the use of a
drug-sniffing dog in the daytime, and its holding, stated at the
end of the opinion, was that "[t]he government's use of trained
police dogs to investigate the home and its immediate surroundings
is a 'search' within the meaning of the Fourth Amendment."
Jardines, 569 U.S. at 11-12. That holding is not applicable here,
where there was no police dog or any other instrumentality used.
The analysis in Jardines also depended on the fact that
the officers entered the property to gather information on the
curtilage, not to speak with a resident. E.g., id. at 6 ("[The
- 57 -
Fourth Amendment] right would be of little practical value if the
State's agents could stand in a home's porch or side garden and
trawl for evidence with impunity."); id. at 9 ("The scope of a
license . . . is limited . . . to a specific purpose. . . . Here,
the background social norms that invite a visitor to the front
door do not invite him there to conduct a search." (emphasis
added)); id. at 9 n.4 ("What [Kentucky v.] King establishes is
that it is not a Fourth Amendment search to approach the home in
order to speak with the occupant, because all are invited to do
that. . . . But no one is impliedly invited to enter the protected
premises of the home in order to do nothing but conduct a search."
(second emphasis added) (citing 563 U.S. 452, 469-70 (2011)); id.
at 11 ("That the officers learned what they learned only by
physically intruding on Jardines' property to gather evidence is
enough to establish that a search occurred." (emphasis added)).
The court stated that the case turned on "whether the officers had
an implied license to enter the porch, which in turn depend[ed]
upon the purpose for which they entered." Id. at 10. The officer
had exceeded the scope of the implied license because his "behavior
objectively reveal[ed] a purpose to conduct a search, which is not
what anyone would think he had license to do." Id. at 10 (emphasis
added). In contrast, as the Court explained "the officers could
have lawfully approached [Jardines'] home to knock on the front
- 58 -
door in hopes of speaking with him. Of course, that is not what
they did." Id. at 7 n.1.
In the instant case, it is undisputed that the officers
were knocking on the door to try to speak with French, not to
search the property, as in Jardines. Jardines is not about the
limitations, if any, on the duration or location of a knock and
talk license to contact the resident of a home, and thus could not
clearly establish the purported illegality of the officers'
conduct. Cf., e.g., United States v. Walker, 799 F.3d 1361, 1363
(11th Cir. 2015) (citing Jardines for the proposition that officers
exceed the implicit license of the knock and talk exception when
their conduct objectively reveals a purpose to conduct a search).
Jardines also did not concern a situation in which the officers
had to act quickly to ensure the safety of a victim or prevent the
destruction of evidence. See Kentucky v. King, 563 U.S. 452, 472
(2011) (holding that officers may enter a residence without a
warrant in order to prevent the destruction of evidence). Nor did
Jardines discuss how the analysis might change when officers are
investigating a crime for which state law authorizes a warrantless
arrest.
As to the majority's argument that the purported
illegality of the officers' conduct was clearly established by the
broad "legal principle at the core of Jardines" because "[i]t does
not take 'fine-grained legal knowledge' to understand that the
- 59 -
officers' actions in this case exceeded the implicit authorization
to enter the property of another without a warrant," there are
several problems with this reasoning. As explained above, the
argument relies on language about the scope of the knock and talk
exception which is not the holding of Jardines or central to
Jardines' analysis. See Garner, et al., The Law of Judicial
Precedent 26, 82 (2016) (defining scope of judicial holdings). It
ignores the Supreme Court's instruction that the clearly
established inquiry "must be undertaken in light of the specific
context of the case" and not "at a high level of generality."
Mullenix, 577 U.S. at 12 (first quoting Brosseau, 543 U.S. at 198;
and then quoting al-Kidd, 563 U.S. at 742). It also ignores the
language of Jardines itself, which clarifies that the implied
license is only "typically" limited to walking up the front path
of a home and knocking. Jardines, 569 U.S. at 8.
Subsequent decisions from the Supreme Court and from our
sister circuits make clear that the purported illegality of the
officers' actions -- including knocking at the window, knocking
multiple times, and knocking late at night -- was not clearly
established by Jardines' general rule.
In Carrol v. Carman, the Supreme Court held that it had
not been clearly established, and it would not decide, whether
officers could perform a knock and talk "at any entrance that is
open to visitors rather than only the front door." 574 U.S. 13,
- 60 -
20 (2014). By refusing to decide the issue, the Court made clear
that Jardines' description of the implied license -- despite
specifying that "typical" knock and talk would be at the front
door -- did not clearly establish that only a knock at the front
door was acceptable. Since then, several circuits have held that
officers may knock at various places on the property if they have
reason to believe that they will find a resident. See, e.g., Covey
v. Assessor of Ohio Cnty., 777 F.3d 186, 193 (4th Cir. 2015) ("An
officer may also bypass the front door (or another entry point
usually used by visitors) when circumstances reasonably indicate
that the officer might find the homeowner elsewhere on the
property"); United States v. Walker, 799 F.3d 1361, 1364 (11th
Cir. 2015) (per curiam) (holding that knock on car window in
carport away from front door was acceptable under knock and talk
exception).
Against this background, a visitor, knowing that this
was a multi-tenant unit and precisely where French's room was,
could quite reasonably go to his window to knock rather than use
the door. So could a neighbor who, having received no response at
the front door, knock on a window to get the attention of an
occupant.25 There was absolutely no impediment to stop visitors
25 The majority argues that this contention is "contrary to
Jardines." This once again misunderstands the qualified immunity
inquiry and Jardines itself. To overcome the defense of qualified
immunity, it is not up to the officers to demonstrate the
- 61 -
from knocking at the window, which was adjacent to the neighbors'
driveway.
The Eleventh Circuit case United States v. Walker shows
even more clearly that the purported illegality of Officer Gray
and Morse's actions was not clearly established. In Walker, police
officers went to a home and knocked at 9:00 PM and 11:00 PM to
attempt to speak with a resident. 799 F.3d at 1362. They returned
shortly after 5:00 AM and saw that there were lights on in the
house and in a car parked in a carport thirty feet from the house.
Id. The officers went to the car and knocked on the car window.
Id. The man inside the car stepped out, and in the course of his
interaction with the police, the police found counterfeit currency
in his home. Id. at 1362-63. The Eleventh Circuit affirmed the
denial of the defendant's motion to suppress evidence discovered
as a result of the third knock and talk on the car window. Id. at
1364. It first explained that the officers' actions did not exceed
the implied license to knock and talk because their purpose was
"to speak with the homeowner, which is conduct that falls squarely
within the scope of the knock and talk exception" and not to search
constitutionality of their actions, but to French to show that no
reasonable officer in these officers' positions could have thought
that their actions were constitutional. The fact that a visitor
who knew which bedroom was French's could knock on his window in
addition to the door simply goes to the reasonableness of the
officers' doing so and establishes that their actions are entitled
to qualified immunity.
- 62 -
the property. Id. at 1363. The court then reasoned that going to
the carport was a permissible "small departure from the front door
. . . when seeking to contact the occupants" because "the officers
entered [the carport] because they had reason to believe the
house's occupant was sitting in the car parked inside." Id. at
1364 (alteration in original) (quoting United States v. Taylor,
458 F.3d 1201, 1205 (11th Cir. 2006)). The Eleventh Circuit also
rejected the argument that in all circumstances "going to someone's
house before sunrise to knock on the door is unreasonable and
exceeds the implied invitation that underlies the knock and talk
exception." Id. at 1364. It explained that the officers' actions
were reasonable because they had seen a light on at 5:04 AM,
suggesting that someone was awake. Id.
Given that Walker was decided before the events of this
case, I cannot agree that it was clearly established "beyond
debate" that Morse and Gray's actions here violated the Fourth
Amendment. al-Kidd, 563 U.S. at 741. In Walker, the police
approached the home to knock three distinct times, twice at his
front door and once on his car window away from the front porch.
799 F.3d at 1364; see also United States v. White, 928 F.3d 734,
739-41 (8th Cir. 2019) (holding that officers had not violated the
Fourth Amendment by approaching a home multiple times in one day
in an effort to make contact with the property owner). Officers
Morse and Gray knocked four times. Each of the knocks in Walker
- 63 -
was at night, and one was at 5:00 AM, essentially the same time
that Morse knocked on French's window. As in Walker, Morse and
Gray had reason to know that French was awake and that they might
reach him by knocking somewhere other than the front door -- here
a bedroom window instead of a car window on the curtilage of the
home.26
The majority commits further errors when it relies on
French's post-litigation self-serving statements that he felt he
had "no choice" but to answer the door. He made no such assertion
to the officers and he voluntarily answered the door. The majority
attempts to imply that the officers' actions somehow coerced French
26 The majority does not argue that French revoked his
implied license or that the officers reasonably should have
understood him to have done so. Perhaps this is because French
could have at any time explicitly told the officers to leave, or
had his roommate do so when his roommate answered the door, but
chose not to. At any rate, the determination as to when an implied
license has been revoked is yet another question about the scope
of the implied license left open by Jardines. See United States
v. Smith, No. 16-91-01, 2017 WL 11461045, at *11 (D.N.H. Oct. 18,
2017) ("[T]he First Circuit Court of Appeals has yet to delineate
the contours of revocation."). Not only is there a dearth of case
law on this topic in our circuit, but courts in other circuits
have indicated that the license is difficult to revoke. See United
States v. Carloss, 818 F.3d 988, 996-97 (10th Cir. 2016) (posting
"No Trespassing" sign in yard and "Posted Private Property Hunting,
Fishing, Trapping or Trespassing for Any Purpose Is Strictly
Forbidden Violators Will Be Prosecuted" sign on door did not revoke
implied license for knock and talk); cf. Edens v. Kennedy, 112
Fed. App'x 870, 875 (4th Cir. 2004) (finding police could not knock
and talk where house was fenced in, gate was locked, and "No
Trespassing" sign posted); see also United States v. Holmes, 143
F. Supp. 3d 1252, 1262 (M.D. Fla. 2015) (noting implied license
can be revoked by "express orders from the person in possession"
(citation omitted)).
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into answering the door. The majority cannot squarely make this
argument because Jardines says nothing about coercion --
unsurprisingly, since it is a case fundamentally about searches
conducted in the curtilage of people's homes and not about the
scope of the knock and talk warrant exception. Nevertheless, the
majority finds that the officers "reenter[ing] the property four
times and [taking] aggressive actions until French came to the
door" was somehow contrary to law clearly established in Jardines.
Jardines simply does not address how many attempts officers who
want to knock and talk may make to get the attention of one occupant
of a multi-occupant house. In finding that the law was clearly
established, the majority holds without any correct citation that
every reasonable officer would have known reentry onto the property
and "aggressive actions" are foreclosed by Jardines. This finding
is mistaken in several respects.
First, it is simply not clearly established law that
repeated entries onto different locations on a property to get the
attention of the person sought are unconstitutionally coercive.
As stated above, in both Walker and White, courts in other circuits
found no constitutional problem with repeated entries onto a
defendant's property.27 Walker, 799 F.3d at 1363-64; White, 928
27 As for "aggressive actions," the majority provides no
guidance for how this highly subjective term might be defined,
much less any actual cases outlining its scope.
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F.3d at 739-41. A reasonable officer could conclude that the
efforts to find French permissibly included going to his window as
well as the front door to knock, and that this was efficient and
hardly "aggressive." The majority rests its entire case on
Jardines, which does not answer these questions.
In cases from our circuit that actually discuss
coercion, we make clear that the law sets a high bar. For example,
in order for a confession to be said to be coerced, the person
being questioned must have their will "overborne." United States
v. Jackson, 608 F.3d 100, 103 (1st Cir. 2010) (citing Arizona v.
Fulminante, 499 U.S. 279, 288 (1991)) ; see also United States v.
Genao, 281 F.3d 305, 310 (1st Cir. 2002) (noting that police must
not "apply undue or unusual pressure . . ., use coercive tactics,
or threaten [the defendant] with violence or retaliation if he did
not confess."). Contrary to French's litigation statements made
in furtherance of his efforts to obtain a damages award from these
officers, there is no support for the contention that the officers'
conduct overbore his will and forced him to come to the door.28 He
did not ask the officers to leave, nor did he ask his roommate to
tell them to go away when his roommate answered the door.
28 In fact, in his deposition, French stated "I knew I had
the right to not come outside if I didn't want to." As the majority
acknowledges, French had experience with the criminal justice
system before this event, having been arrested previously in
February 2016. In the same deposition, French stated he had
already been arrested "four times."
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Despite the majority's attempts to buttress its argument
by focusing on French's belated statement of his subjective
feelings before he came to the door, the proper focus of the
qualified immunity inquiry is whether the officers would have known
their actions were unconstitutional. The answer, contrary to the
majority, is that a reasonable officer could have thought these
actions were constitutional. In qualified immunity
determinations, "[t]he dispositive question is 'whether the
violative nature of particular conduct is clearly established."
Mullenix, 577 U.S. at 12 (emphasis in original) (citing al-Kidd,
563 U.S. at 742).
The majority's entire approach to qualified immunity
runs counter to both the Supreme Court's and this circuit's
precedents. The "clearly established" inquiry is not supposed to
entail elucidating an abstract principle from a single case and
asking how a reasonable officer would have applied that principle
in a given situation. Rather, it requires asking whether the
constitutionality of the official's behavior was placed "beyond
debate" by existing precedent. al-Kidd, 563 U.S. at 7471. The
inquiry requires "specificity," particularly in Fourth Amendment
cases. Mullenix, 577 U.S. at 12. The majority makes clear that
it is not concerned with what it views as trivial details like
"the number of officers present or the hour, location, or length
of the attempted knock and talks." It should be. In ignoring the
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specifics of the case and the very real questions left open by
Jardines to reach its decision, the majority defines clearly
established law at the "high level of generality" the Supreme Court
has expressly foreclosed. al-Kidd, 563 U.S. at 742.
The need for swift action also distinguishes this case
from Jardines and undercuts the majority's argument that general
principles of Jardines clearly established the purported
illegality of the officers' conduct. There are two basic reasons
for this among many others. First, the Supreme Court has
recognized that officers may enter a residence without a warrant
in order to prevent the destruction of evidence. King, 563 U.S.
at 472. Here, a reasonable officer could have thought that their
conduct did not violate any constitutional rights because a knock
and talk could prevent French from destroying or disposing of
Nardone's phone, keys, and any other evidence of the break-in.
Second, there was an imminent threat to Nardone, and the officers
certainly were allowed to attempt to talk to French in an effort
to secure her safety. Cf. id. at 460 (recognizing that officers
may enter a home without a warrant to prevent "imminent injury").
As we have recognized, "the Supreme Court's standard of
reasonableness is comparatively generous to the police in cases
where potential danger, emergency conditions or other exigent
circumstances are present." Roy v. Inhabitants of City of
Lewiston, 42 F.3d 691, 695 (1st Cir. 1994). We have also
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recognized that deference to officers' decisions in these
circumstances is particularly warranted in domestic violence
situations where "violence may be lurking and explode with little
warning." Fletcher v. Town of Clinton, 196 F.3d 41, 50 (1st Cir.
1999). The officers here knew of the potential danger to Nardone,
and the potential for destruction of evidence, and they also knew
that getting a warrant would be a lengthy process. With these
factors in mind, the officers made the considered determination
that it was reasonable to attempt several knock and talks.
This circuit's recent decision in United States v.
Manubolu, No. 20-1871, 2021 WL 4167087 (1st Cir. Sept. 14, 2021),
underscores how long wait times for warrants factor into the
reasonableness determination. In the aftermath of a car crash,
the court found that police did not violate the defendant's
constitutional rights by conducting a blood draw to check his blood
alcohol levels without a warrant where the procedure for getting
a warrant was "protracted," the blood alcohol evidence in his
bloodstream was dissipating, and the defendant needed medical
attention. Id. at *9-10, *13. Under the totality of the
circumstances, the court found that it was reasonable for the
officer to think exigent circumstances existed to permit a
warrantless blood draw. Id. at *13. There, the officer knew of
a National Park Service regulation which prohibited warrantless
blood draws absent exigent circumstances. Id. at *3. Here, in
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contrast, there was no analogous statute since no warrant was
required for a knock and talk. Given the length of time it would
have taken to get a warrant, the possibility that evidence would
be destroyed, and the potential for harm to Nardone, the officers
here made an objectively reasonable decision under the
circumstances to continue to attempt to knock and talk. The
officers' actions were lawful, but, even if they were not, the
totality of the circumstances informing their decisions is yet
another reason why adherence to the law requires that the grant of
qualified immunity be affirmed.
III.
The majority's decision, in my view, disincentivizes
police from acting on and taking seriously the complaints of
persons of any gender who credibly seek law enforcement help when
they have been threatened by former romantic partners. I cannot
agree that Jardines was sufficiently analogous to place the
legality of these officers' actions "beyond debate." In my view,
under controlling Supreme Court precedent, the only correct result
here is the affirmance of the grant of qualified immunity to these
officers. The officers here acted reasonably in making repeated
efforts to reach French where he was acting erratically and Nardone
explained that the danger to her would increase as French was given
more time to break into and read the contents of her phone. The
officers knew French was awake despite the time, and it was a
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rational choice in a multi-tenant apartment for the officers to
knock on French's bedroom window to try to speak to him. Nothing
in Jardines or any other case clearly established that these
actions violated the Fourth Amendment.
I dissent.
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