Amicus Curiae Brief — Clyde S. Bovat, Petitioner v. Vermont

No. 19-1301

IN THE

Supreme Court of the United States

_______________________________

CLYDE S. BOVAT,

Petitioner,

v.

VERMONT,

Respondent.

_______________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF VERMONT

_______________________________

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION FOR

PUBLIC DEFENSE

IN SUPPORT OF PETITIONER

_______________________________

Thomas M. Bondy

Counsel of Record

Tiffany R. Wright

Upnit K. Bhatti

James Anglin Flynn

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street, NW

Washington, DC 20005

(202) 339-8400

tbondy@orrick.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTEREST OF AMICUS CURIAE .......................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 1

ARGUMENT ............................................................. 4

I.

The Vermont Supreme Court’s Decision Is

Irreconcilable With Florida v. Jardines. ........... 4

II. Abuse Of The Knock-And-Talk Exception

To Conduct Unlicensed And Warrantless

Investigations Is An Important And

Recurring Issue. ............................................... 10

A. Abuse Of The Knock-And-Talk

Exception Is A Widespread Problem

That Demands This Court’s Review. .......... 11

B. Abuse Of The Knock-And-Talk

Exception Disproportionately Harms

Marginalized Communities. ....................... 14

CONCLUSION ........................................................ 18

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Collins v. Virginia,

138 S. Ct. 1663 (2018)............................ 4, 6, 11, 13

Coolidge v. New Hampshire,

403 U.S. 443 (1971) ................................................9

Fernandez v. California,

571 U.S. 292 (2014) ..............................................11

Fixel v. Wainwright,

492 F.2d 480 (5th Cir. 1974)................................15

Florida v. Jardines,

569 U.S. 1 (2013) ............ 2, 3, 4, 5, 6, 7, 8, 9, 10, 11

Hester v. United States,

265 U.S. 57 (1924) ................................................10

Katz v. United States,

389 U.S. 347 (1967) ................................................9

Kentucky v. King,

563 U.S. 452 (2011) ..........................................5, 11

People v. Burns,

50 N.E.3d 610 (Ill. 2016)......................................16

Ryburn v. Huff,

565 U.S. 469 (2012) ..............................................11

iii

Silverman v. United States,

365 U.S. 505 (1961) ................................................4

Stanton v. Sims,

571 U.S. 3 (2013) ..................................................11

State v. Libbey,

577 A.2d 279 (Vt. 1990) .........................................5

State v. Williams,

862 N.W.2d 831 (N.D. 2015) ................................16

Texas v. Brown,

460 U.S. 730 (1983) ................................................9

United States v. Carloss,

818 F.3d 988 (10th Cir. 2016)..............................13

United States v. Carriger,

541 F.2d 545 (6th Cir. 1976)................................15

United States v. Cruz Pagan,

537 F.2d 554 (1st Cir. 1976) ................................15

United States v. Pineda-Moreno,

617 F.3d 1120 (9th Cir. 2010)..............................17

United States v. Redmon,

138 F.3d 1109 (7th Cir. 1998)..............................17

United States v. Richmond,

924 F.3d 404 (7th Cir. 2019)..................................7

United States v. Ross,

456 U.S. 798 (1982) ................................................8

iv

United States v. Whitaker,

820 F.3d 849 (7th Cir. 2016)..........................14, 16

Constitutional Provisions

U.S. Const. amend. IV ...................................... passim

Other Authorities

Jeffrey Bellin, Fourth Amendment

Textualism, 118 Mich. L. Rev. 233

(2019) ....................................................................12

4 William Blackstone, Commentaries ..................5, 10

Quiwana N. Chaney, Comment, United

States v. Carloss: An Unclear and

Dangerous Threat to Fourth

Amendment Protections of the Home

and Curtilage, 95 Denv. L. Rev. 519

(2018) ....................................................................12

Amelia L. Diedrich, Note, Secure in

Their Yards?, 39 Hastings Const.

L.Q. 297 (2011).....................................................14

Ian Dooley, Fighting for Equal

Protection Under the Fourth

Amendment, 40 Nova L. Rev. 213

(2016) ....................................................................15

Jamesa J. Drake, Knock and Talk No

More, 67 Me. L. Rev. 25 (2014) ......................12, 13

Andrew Eppich, Note, Wolf at the Door,

32 B.C. J.L. & Soc. Just. 119 (2012)....................15

v

Stephen Grego, Comment, State v.

Edstron: No Warrant Needed for

Minnesota Police to Conduct a Dog

Sniff Outside Your Apartment, 16 U.

St. Thomas L.J. 297 (2020)..................................12

William Dean Hinton, Knock and Talk,

Orlando Weekly (Jan. 9, 2003),

https://www.orlandoweekly.com/orla

ndo/knock-andtalk/Content?oid=2260977 ..................................13

Jeremy J. Justice, Note, Do Residents of

Multi-Unit Dwellings Have Fourth

Amendment Protections in their

Locked Common Area After Florida

v. Jardines Established the

Customary Invitation Standard?, 62

Wayne L. Rev. 305 (2017) ..............................14, 15

Tanner M. Russo, Note, Garbage Pulls

Under the Physical Trespass Test,

105 Va. L. Rev. 1217 (2019) .................................12

Christopher Slobogin, The Poverty

Exception to the Fourth Amendment,

55 Fla. L. Rev. 391 (2003) ....................................17

Matthew Tokson, Lecture, The Next

Wave of Fourth Amendment

Challenges After Carpenter, 59

Washburn L.J. 1 (2019) .......................................12

vi

Matthew Tokson, The Normative

Fourth Amendment, 104 Minn. L.

Rev. 741 (2019) ....................................................12

1

INTEREST OF AMICUS CURIAE1

The National Association for Public Defense

(NAPD) is an organization of more than 21,000 practitioners dedicated to the effective legal representation of persons accused of crimes who cannot afford

to retain private counsel. The Association’s membership includes all categories of professionals necessary to providing a robust public defense: lawyers,

social workers, case managers, investigators, sentencing advocates, paralegals, researchers, and legislative advocates. These professionals often represent

the interests of the most marginalized and stigmatized communities in the United States. NAPD aims

to de-stigmatize poverty and to eradicate racial disparities in the justice system. The Association files

numerous amicus briefs each year in state and federal cases involving constitutional principles critical

to the fair administration of justice.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The Fourth Amendment guarantees the “right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures.” Because the “house protects and privileges

all its branches and appurtenants,” the Amendment’s protection extends to the curtilage—“the area

1 The parties have consented to the filing of this amicus

brief. No counsel for a party authored the brief in whole or in

part. No party, counsel for a party, or any person other than

amicus curiae and their counsel made a monetary contribution

intended to fund the preparation or submission of the brief.

2

immediately surrounding and associated with the

home.” Florida v. Jardines, 569 U.S. 1, 6-7 (2013)

(emphasis added) (internal quotation marks and citations omitted). In Florida v. Jardines, this Court

held that without a warrant, government officers

may only enter the curtilage through an “implicit license” that permits visitors “to approach the home

by the front path, knock promptly, wait briefly to be

received, and then (absent invitation to linger longer) leave.” Id. at 8. In other words, police encroaching upon the curtilage without a warrant may do “no

more than any private citizen might do.” Id. (citation

omitted). The Vermont Supreme Court’s decision in

this case permits far more. It stands in direct opposition to this Court’s holding and rationale in

Jardines.

This case began in the early morning hours of

Thanksgiving 2017, when Vermont game wardens

were investigating Petitioner Clyde Bovat as a suspect in the illegal shooting of a deer. The wardens

arrived at Mr. Bovat’s home without a warrant and

proceeded up his driveway. They then deviated from

the path to the front door of the house and instead

peered through the small window of a garage where

they observed deer hair and blood on Mr. Bovat’s

truck. Under Jardines, these actions plainly violate

the Fourth Amendment. Yet the Vermont Supreme

Court held that “[w]hen state officials restrict their

movement to semiprivate areas”— such as “a driveway, steps and a walkway”—“to conduct an investigation, observations made from such vantage points

are not covered by the Fourth Amendment.” Pet.

App. 10a-11a (internal quotation marks and citations omitted). This “is not the law.” Jardines, 569

3

U.S. at 9 n.3. Jardines flatly rejected the proposition

that police may do “whatever they want by way of

gathering evidence so long as they … stick to the

path that is typically used to approach a front door,

such as a paved walkway” from which “they can presumably peer into the house … with impunity,”

much less if they depart from that path. Id. (internal

quotation marks and citation omitted). The Vermont

Supreme Court’s decision reaching a contrary conclusion warrants action from this Court—either

summary reversal or full review to clarify the scope

of the so-called “knock-and-talk” exception to the

Fourth Amendment’s warrant requirement.

This Court’s attention is necessary not only to

resolve the clear conflict with Jardines and with other courts on the scope of the knock-and-talk exception, see Pet. 23-25, but also to put an end to an

abusive and constitutionally fraught practice: warrantless searches of curtilage and homes performed

under the guise of knock-and-talk visits. This practice—which threatens the Fourth Amendment rights

of all Americans—is increasingly prevalent, and it

also disproportionately harms those living in homes

with limited curtilage, particularly in poor and minority communities.

This Court should grant review and reverse the

decision of the Vermont Supreme Court.

4

ARGUMENT

I.

The Vermont Supreme Court’s Decision Is

Irreconcilable With Florida v. Jardines.

At its “very core,” the Fourth Amendment protects the right “to retreat into [one’s] own home and

there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511

(1961). In Florida v. Jardines, this Court concluded

that constitutional protection of the home “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.” 569 U.S. 1, 6 (2013). The

Court therefore classified the areas “immediately

surrounding and associated with the home,” known

as the curtilage, as “part of the home itself for

Fourth Amendment purposes.” Id. (citation omitted).

Thus, “[w]hen a law enforcement officer physically

intrudes on the curtilage to gather evidence, a

search within the meaning of the Fourth Amendment has occurred” and is “presumptively unreasonable absent a warrant.” Collins v. Virginia, 138 S.

Ct. 1663, 1670 (2018).

As an exception to the Fourth Amendment’s

warrant requirement, Jardines recognized an “implicit license” that permits officers 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. Under this

“knock-and-talk” exception, “a police officer not

armed with a warrant may approach a home and

knock, precisely because that is ‘no more than any

5

private citizen might do.’” Id. (quoting Kentuc ky v.

King, 563 U.S. 452, 469 (2011)).

The Vermont Supreme Court’s decision in this

case permits much more. The ruling below grants

law enforcement authority to encroach upon areas of

the curtilage for investigative purposes. The court’s

holding and rationale contravene Jardines in several

fundamental ways.

First, although the Vermont Supreme Court

rightly identified Mr. Bovat’s garage as curtilage, the

court labeled a subsection of curtilage—including

“driveways or walkways”—as “semiprivate” and undeserving of full Fourth Amendment protection. Pet.

App. 10a. The court found “a significant difference

between private areas within the curtilage of the

home, and semiprivate areas, such as a driveway,

steps and a walkway.” Pet. App. 10a (quoting State

v. Libbey, 577 A.2d 279, 280 (Vt. 1990)). And because

the officers who encroached upon Mr. Bovat’s property “restrict[ed] their movement to semiprivate areas,” the court found that the officers did not violate

the Fourth Amendment. Pet. App. 10a-11a. Jardines

leaves no room for such a distinction.

Jardines makes clear that, for Fourth Amendment purposes, “the ‘house protects and privileges

all its branches and appurtenants.’” Jardines, 569

U.S. at 6-7 (emphasis added) (quoting 4 William

Blackstone, Commentaries *223, *225). The Court in

Jardines expressly rejected the proposition that police may “do whatever they want by way of gathering

evidence … so long as they stick to the path that is

typically used to approach a front door, such as a

6

paved walkway.” Id. at 9 n.3 (internal quotation

marks and citation omitted). Areas such as “the front

porch, side garden, … [the] area outside the front

window, [and] the driveway enclosure” are part of

the curtilage. Collins, 138 S. Ct. at 1671 (internal

quotation marks and citation omitted); see also

Jardines, 569 U.S. at 6 (internal quotation marks

and citation omitted) (defining curtilage as “the area

immediately surrounding and associated with the

home”). The areas classified as “semiprivate” by the

court below—e.g., driveways and walkways, see Pet.

App. 10a—therefore fall squarely within this Court’s

definition of curtilage. Contrary to the Vermont Supreme Court’s decision, there is nothing “semi” about

the privacy of these curtilage areas—these areas enjoy the same Fourth Amendment protection as the

home itself. Jardines, 569 U.S. at 6.

In classifying some parts of the curtilage as less

deserving of Fourth Amendment protection, the

Vermont Supreme Court robbed this constitutional

protection of the “practical value” Jardines guarantees. Id. The court below diminished both the sanctity of the home and the right to be free from

unreasonable governmental intrusion, which are

both fundamental to the Fourth Amendment.

Second, the Vermont Supreme Court held that

state officials may enter “semiprivate” areas within

the curtilage in order “to conduct an investigation,”

and “observations made from such vantage points

are not covered by the Fourth Amendment.” Pet.

App. 10a-11a (citation omitted). That holding too

cannot be squared with Jardines. This Court in

Jardines stressed that officers without a search war-

7

rant may not “obtain[] information by physically intruding on … houses” and their curtilage without an

implicit or explicit license from the residents.

Jardines, 569 U.S. at 5 (citation omitted). The “implicit license” underlying the “knock-and-talk” exception to the warrant requirement extends only to

what “any private citizen might do” when visiting a

home. Id. at 8 (citation omitted). “To find a visitor

knocking on the door is routine (even if sometimes

unwelcome); to spot 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.

Although officers can enter residential property,

including parts of the curtilage, Pet. App. 10a, they

must recognize their boundaries as visitors. “[T]he

background social norms that invite a visitor to the

front door do not invite him there to conduct a

search.” Jardines, 569 U.S. at 9; see also United

States v. Ric hmond, 924 F.3d 404, 421 (7th Cir.

2019) (Wood, C.J., dissenting) (If an “officer takes actions beyond those that a homeowner has authorized

for all visitors—Jardines holds that it is immaterial

that the officer might be lawfully present while conducting those unauthorized actions.”), c ert. denied,

140 S. Ct. 1136 (2020).

Contrary to these principles, the Vermont Supreme Court allowed the wardens to exceed the limits of any “implicit license” and sanctioned the

officers’ decision to deviate from the path from the

driveway to the house and look through a small window in the garage door to investigate alleged wrong-

8

doing. Because this is far “more than any private citizen might do,” Jardines, 569 U.S. at 8 (citation

omitted), the wardens’ actions were unconstitutional

under Jardines.

Finally, and relatedly, the Vermont Supreme

Court failed to consider the purpose for which the

officers entered Mr. Bovat’s property. In determining

whether an “officer’s conduct was an objectively

reasonable search,” Jardines requires an assessment

of “the purpose for which [the officer] entered” the

property. Id. at 10. In Jardines itself, for instance,

the officers brought a trained police dog to sniff

around Mr. Jardines’s front porch. This conduct

clearly revealed the officer’s purpose—“to conduct a

search, which is not what anyone would think he

had license to do.” Id.

The Vermont Supreme Court’s decision in this

case did not properly take this factor into consideration. Just like in Jardines, the wardens’ conduct here

revealed their purpose for intruding on Mr. Bovat’s

property—to conduct a warrantless search to look for

possible evidence of unlawful activity. As Jardines

holds, this search was not objectively reasonable,

and it was not permissible under the Fourth

Amendment without a warrant.

The Vermont Supreme Court looked to the plainview doctrine to salvage its erroneous analysis. But

that doctrine is inapplicable here. The Fourth

Amendment protects the “owner of every container

that conceals its contents from plain view.” United

States v. Ross, 456 U.S. 798, 822-23 (1982). The

plain-view exception encompasses what “a person

9

knowingly exposes to the public.” Katz v. United

States, 389 U.S. 347, 351 (1967). Here, Mr. Bovat did

not expose his pickup truck to the public, as it was

not viewable from any place where the public had a

license to be.

Moreover, the plain-view doctrine is only applicable where an officer first “lawfully make[s] an ‘initial intrusion’ or [is] properly … in a position from

which he can view a particular area.” Texas v.

Brown, 460 U.S. 730, 737 (1983) (plurality op.) (emphasis added) (quoting Coolidge v. New Hampshire,

403 U.S. 443, 465-68 (1971) (plurality op.)). Here, the

wardens were not lawfully on Mr. Bovat’s property

in the relevant sense. They strayed from the most

natural path to the house and improperly proceeded

to a vantage point from which they then peeped into

the garage door window “in hopes of discovering incriminating evidence,” Jardines, 569 U.S. at 9, making the plain-view doctrine inapplicable. The

Vermont court’s expansion of this doctrine to this

case improperly dilutes the protections afforded by

the Fourth Amendment.

In sum, under a proper and direct application of

Jardines, this case—like Jardines itself—is “a

straightforward one.” Id. at 5. The wardens were

gathering information in the curtilage of Mr. Bovat’s

home, which this Court has held “enjoys protection

as part of the home itself.” Id. at 6. Over the course

of fifteen minutes, rather than proceeding directly to

the house to knock on Mr. Bovat’s front door, they

investigated the curtilage. They gathered information by entering Mr. Bovat’s property, veering off

the straightforward path to his front door, and peer-

10

ing through a small window into his garage, all acts

that are not expected of a visitor and that were neither explicitly nor implicitly authorized by the

Bovats. See id. Because the wardens did this without

a warrant, the search of Mr. Bovat’s property was

plainly unconstitutional. The Vermont Supreme

Court’s decision reaching a contrary conclusion warrants action from this Court—either summary reversal, see Pet. 25-29, or full review to clarify the scope

of the Fourth Amendment’s “knock-and-talk” exception, see Pet. 23-25. Guarding the parameters of the

exceptions to the Fourth Amendment’s warrant requirement is important to all Americans, including

the marginalized communities served by NAPD.

II. Abuse Of The Knock-And-Ta lk Exception

To Conduct Unlicensed And Wa rra ntless

Investiga tions Is An Importa nt And

Recurring Issue.

The Fourth Amendment protects curtilage to the

same extent as the home itself. Jardines, 569 U.S. at

6. This precept, reiterated in Jardines, is “as old as

the common law.” Id. (quoting Hester v. United

States, 265 U.S. 57, 59 (1924); and citing 4 William

Blackstone, Commentaries *223, *225). The Vermont

Supreme Court cast aside this long-standing rule

and opened the door for law enforcement to encroach

upon curtilage to conduct extended, pre-knock investigations that no reasonable visitor would think

within her implied license.

This Court’s attention is necessary not only because of the clear contravention of Jardines, but also

because the rule announced by the court below lends

11

credence to an abusive and constitutionally fraught

practice: warrantless searches of curtilage and

homes performed under the guise of knock-and-talk

visits. This abusive practice violates Americans’

property rights and our shared expectations of privacy in our homes. Moreover, broadening investigatory

powers at the expense of curtilage protections will

cause disproportionate harm to those living in homes

with limited curtilage—and those in poor and minority communities most of all.

A. Abuse

Of

The

Knock-And-T

a lk

Exception Is A Widesprea d Problem

That Demands This Court’s Review.

In recent years, this Court has repeatedly recognized the importance of clearly defining Fourth

Amendment protections for the home and its surroundings. See, e.g., Collins, 138 S. Ct. 1663; Fernandez v. California, 571 U.S. 292 (2014); Stanton v.

Sims, 571 U.S. 3 (2013) (per curiam); Jardines, 569

U.S. 1; Ryburn v. Huff, 565 U.S. 469 (2012) (per curiam); King, 563 U.S. 452. The Court should intervene here to ensure that these protections, as

embodied in Jardines and other decisions, e.g., Collins, properly serve their intended purpose of safeguarding Americans’ privacy and security in their

homes.

Multiple, interconnected issues, including the

warrant requirement, the curtilage doctrine, the

knock-and-talk exception, and the plain-view exception affect whether the Fourth Amendment offers

meaningful protection for the home. As these principles intersect in new and unexpected ways, law en-

12

forcement and courts have struggled to define the

limits of police authority in the zone around the

home. From drug-sniffing dogs and garbage searches

to drones and digital surveillance, the legality of investigation around the home has become an increasingly complex question in need of clear, authoritative

answers. See, e.g., Stephen Grego, Comment, State v.

Edstron: No Warrant Needed for Minnesota Police to

Conduct a Dog Sniff Outside Your Apartment, 16 U.

St. Thomas L.J. 297 (2020); Matthew Tokson, Lecture, The Next Wave of Fourth Amendment Challenges After Carpenter, 59 Washburn L.J. 1 (2020);

Matthew Tokson, The Normative Fourth Amendment, 104 Minn. L. Rev. 741 (2019); Jeffrey Bellin,

Fourth Amendment Textualism, 118 Mich. L. Rev.

233 (2019); Tanner M. Russo, Note, Garbage Pulls

Under the Physic al Trespass Test, 105 Va. L. Rev.

1217 (2019).

The lack of constitutional clarity when it comes

to the knock-and-talk technique has given rise to

widespread abuse. In light of “the unrestrained nature of knock-and-talks, police departments

throughout the nation have begun utilizing the tactic

as a way around the Fourth Amendment.” Quiwana

N. Chaney, Comment, United States v. Carloss: An

Unc lear and Dangerous Threat to Fourth Amendment Protec tions of the Home and Curtilage, 95

Denv. L. Rev. 519, 525 (2018). As Petitioner notes,

Pet. 20-21, some departments have even instituted

dedicated knock-and-talk squads, e.g., Jamesa J.

Drake, Knock and Talk No More, 67 Me. L. Rev. 25,

34-42 (2014). In Orlando, for example, local reporting revealed that the county sheriff’s dedicated

squad performed roughly ten knock-and-talk visits

13

per day. Id. at 35. One local officer admitted that he

resorts to the technique when he cannot persuade a

neutral magistrate to issue a warrant: “[Y]ou go for

broke.” William Dean H inton, Knoc k and Talk, Orlando

Weekly

(Jan.

9,

2003),

https://www.orlandoweekly.com/orlando/knock-andtalk/Content?oid=2260977. In doing so, “officers

sometimes use knock and talks in ways that test the

boundaries of the consent on which they depend.”

United States v. Carloss, 818 F.3d 988, 1003 (10th

Cir. 2016) (Gorsuch, J., dissenting).

The Vermont Supreme Court’s decision here illustrates that the boundaries of the curtilage doctrine and of the knock-and-talk exception are easily

blurred. Just two years ago in Collins, this Court refused to “creat[e] a carveout to the general rule that

curtilage receives Fourth Amendment protection,

such that certain types of curtilage would receive

[that] protection only for some purposes but not for

others.” 138 S. Ct. at 1675. The Vermont Supreme

Court did precisely that here: carving out portions of

the curtilage as semi-private space open to police investigations of unknown dimension and duration. As

the Collins Court recognized, allowing ill-defined

gradations and exceptions to the curtilage doctrine

“seems far more likely to create confusion than does

uniform application of the Court’s doctrine.” Id. Indeed, as Petitioner points out, decisions like the one

below also provide unwarranted cover for plainly unconstitutional police action under the shield of qualified immunity. Pet. 21 n.4. A definitive reiteration

that Jardines applies here would reaffirm for citizens, officers, and courts the proper limits of government investigations around the home.

14

B. Abuse

Of

The

Knock-And-T

a lk

Exception Disproportiona tely Ha rms

Marginalized Communities.

The harms arising from police abuse of the

knock-and-talk facility are not evenly distributed.

The officers here trespassed through Mr. Bovat’s

curtilage and improperly searched an enclosed structure set back from the road on his private property.

That was fundamentally wrong, and this Court

should say so.

But for the many Americans living in multi-unit

dwellings like apartments, condominiums, and public-housing units, protections like the curtilage doctrine are often illusory at best, and knock-and-talk

techniques can run rampant. Poor and minority

communities are disproportionately likely to reside

in multi-unit housing and, as a result, feel the brunt

of investigative searches conducted under the guise

of the knock-and-talk technique. See United States v.

Whitaker, 820 F.3d 849, 854 (7th Cir. 2016); Jeremy

J. Justice, Note, Do Residents of Multi-Unit Dwellings Have Fourth Amendment Protec tions…?, 62

Wayne L. Rev. 305, 329-30 (2017).

Families living in multi-unit dwellings suffer a

constitutional disadvantage: the areas surrounding

their homes (such as common hallways and shared

garages) are much less likely to receive Fourth

Amendment protection than the surroundings of

single-family homes (such as yards and gardens).

“Simply because of their living arrangement, poor

individuals,” for example, may “have little to no

space designated as curtilage.” Amelia L. Diedrich,

15

Note, Sec ure in Their Yards?, 39 H astings Const.

L.Q. 297, 315 (2011). Similarly, the law governing

knock-and-talk visits like the one purportedly conducted on Mr. Bovat’s property “unequally protect[s]

wealthier individuals and families living in suburban and rural areas.” Ian Dooley, Fighting for Equal

Protection Under the Fourth Amendment, 40 Nova L.

Rev. 213, 214 (2016); see also Andrew Eppich, Note,

Wolf at the Door, 32 B.C. J.L. & Soc. Just. 119, 133

(2012). Restrictions on curtilage and the expansion

of knock-and-talk techniques are a “particularly

acute” problem in public-housing units, which are already often subject to roving police patrols. Dooley,

supra, at 227.

Some courts have questioned whether the curtilage doctrine affords any protection at all to residents of multi-unit dwellings. Justice, supra, at 321;

Eppich, supra, at 131-32. The First Circuit, for example, has indicated that the Fourth Amendment’s

protections do not extend beyond the four corners of

an apartment. United States v. Cruz Pagan, 537 F.2d

554, 558 (1st Cir. 1976). Whatever property interests

a resident may have in common spaces, the First

Circuit observed, are simply “not … relevant” to the

resident’s Fourth Amendment rights. Id. Other

courts have recognized only narrow curtilage spaces

in multi-unit residences. See, e.g., United States v.

Carriger, 541 F.2d 545, 551 (6th Cir. 1976); Fixel v.

Wainwright, 492 F.2d 480, 484 (5th Cir. 1974).

In a multi-unit setting, therefore, searches conducted under the guise of the knock-and-talk technique are especially invasive and constitutionally

dubious. In many cases, without the curtilage pro-

16

tections of a single-family home, officers have been

permitted to conduct Jardines-style searches at residents’ doors with no warrant, no suspicion, and no

consent.

In People v. Burns, for example, police followed

an anonymous tip to the defendant’s apartment. 50

N.E.3d 610, 613-14 (Ill. 2016). Once there, they conducted a successful dog-sniff for drugs. Id. at 614.

Noting a confluence of factors including the building’s locked entrance, the officers’ middle-of-thenight approach, and the use of a drug-sniffing dog,

the Illinois Supreme Court applied Jardines and excluded the fruits of the search. Id. at 622. However,

the Court was powerless to vindicate the rights of

the residents other than the defendant. As the Court

observed, once inside the complex, the officers conducted a sniff-search of three other apartments with

no connection to the defendant’s. Id. at 614 (“Officer

Cervantes did not explain why he swept these other

apartments’ doors for drugs.”); id. at 622 (noting that

the officers “conduct[ed] an open-air sweep of other

apartment doors in the building, for some unknown

reason”). This was not an isolated incident. Courts

around the country have been confronted with officers who searched not only suspects’ apartments but

also their neighbors’, in a manner that would never

be tolerated for single-family homes under Jardines.

See, e.g., Whitaker, 820 F.3d at 851 (search of suspect’s apartment and at least five of his neighbors’);

State v. Williams, 862 N.W.2d 831, 832 (N.D. 2015)

(search of suspect’s condo and his neighbor’s).

This case presents an easy example of officers

overstepping the implicit license granted them to

17

approach a home and inquire of its residents. Like

the dogs roaming apartment hallways and sniffing

neighbors’ doors without suspicion, the officers here

abused their license to approach and knock at the

Bovats’ door by instead investigating through a

small garage window off the prescribed path to the

house. Rules that permit officers to deviate from

their implied licenses and to trespass in order to investigate should worry all Americans and will also

play out in ways that disproportionately disadvantage poor and minority communities. See, e.g.,

United States v. Pineda-Moreno, 617 F.3d 1120, 1123

(9th Cir. 2010) (Kozinski, C.J., dissenting from the

denial of rehearing en banc) (noting benefits of modern curtilage rulings for the “very rich” whereas “the

vast majority … will see their privacy materially diminished”); United States v. Redmon, 138 F.3d 1109,

1132 (7th Cir. 1998) (en banc) (Posner, C.J., dissenting) (observing that a narrowed curtilage doctrine

benefits “wealthy suburbanites and exurbanites”);

Christopher Slobogin, The Poverty Exc eption to the

Fourth Amendment, 55 Fla. L. Rev. 391, 401 (2003).

This Court should grant Mr. Bovat’s petition and

make clear that the implied license to knock and talk

is not a license to search through the curtilage. It

should instead reaffirm a robust curtilage doctrine

that protects the rights of all Americans in the privacy of their homes.

18

CONCLUSION

This Court should grant certiorari and reverse

the judgment of the Vermont Supreme Court.

Respectfully submitted,

June 19, 2020

Thomas M. Bondy

Counsel of Record

Tiffany R. Wright

Upnit K. Bhatti

James Anglin Flynn

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street, NW

Washington, DC 20005

(202) 339-8400

tbondy@orrick.com