Petition for Writ of Certiorari — Tyler Brienza, Petitioner v. City of Peachtree, Georgia, et al.

No. ______

In the

Supreme Court of the United States

__________________

TYLER BRIENZA,

v.

Petitioner,

CITY OF PEACHTREE CITY, GEORGIA,

ADAM C. WADSWORTH, AND MARK A. WILLIAMS,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

LISA C. LAMBERT

RICHARD E. JOHNSON

Counsel of Record

LAW OFFICE OF

LAW OFFICE OF

LISA C. LAMBERT

RICHARD E. JOHNSON

245 N. Highland Avenue

314 West Jefferson Street Suite 230-139

Tallahassee, Florida 32301 Atlanta, Georgia 30307

850-425-1997

404-556-8759

rick@rej-law.com

lisa@civil-rights.attorney

Counsel for Petitioner

February 1, 2023

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

The Fourth Amendment prohibits law enforcement

from entering a private home, or its curtilage, without

a warrant or exigent circumstances, with one limited

exception: a “knock-and-talk.” This limited exception

permits law enforcement officers to take a normal

pathway to the front door and knock just as any other

member of the public—whether a neighbor, mail

carrier, or girl scout selling cookies. It is a voluntary

encounter. As such, the occupants are free to refuse to

answer the door, answer the door and refuse to answer

any questions, or engage in conversation with law

enforcement officers. The question presented is:

When occupants answer a “knock-and-talk” by

law enforcement officers and step onto the

porch, or curtilage of the home, to address the

officers, may the officers transform the

voluntary encounter into an investigative

detention absent exigent circumstances?

ii

PARTIES

The parties to this proceeding are set forth in the

caption.

DIRECTLY RELATED CASES

Brienza v. City of Peachtree City, Georgia, et al., No.

21-12290, 2022 U.S. App. LEXIS 24372, 2022 WL

3841095 (11th Cir. Aug. 30, 2022)

Brienza v. City of Peachtree City, Georgia, et al., 536

F. Supp. 3d 1323 (N.D. Ga. 2021)

Brienza v. City of Peachtree City, Georgia, et al., No.

3:17-cv-134, 2021 U.S. Dist. LEXIS 132100 (N.D. Ga.

June 8, 2021)

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

DIRECTLY RELATED PROCEEDINGS . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . v

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS INVOLVED . . . 1

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 5

REASONS FOR GRANTING THE WRIT. . . . . . . . 19

I.

The Circuits are Split Regarding the

Question Presented . . . . . . . . . . . . . . . . . . . . 19

II.

The Eleventh Circuit’s Decision is Wrong . . 23

III.

This Case Presents An Excellent Vehicle to

Address a Question of Great Importance . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Eleventh Circuit

(August 30, 2022) . . . . . . . . . . . . . App. 1

iv

Appendix B Order in the United States District

Court for the Northern District of

Georgia

(May 3, 2021). . . . . . . . . . . . . . . . App. 25

Appendix C Order in the United States District

Court for the Northern District of

Georgia

(June 8, 2021) . . . . . . . . . . . . . . . App. 42

Appendix D Order Denying Petition for Panel

Rehearing in the United States Court

of Appeals for the Eleventh Circuit

(October 4, 2022) . . . . . . . . . . . . . App. 49

v

TABLE OF AUTHORITIES

CASES

Bovat v. Vermont,

141 S. Ct. 22 (2020). . . . . . . . . . . . . . . . . . . . 26, 27

Breard v. Alexandria,

341 U.S. 622 (1951). . . . . . . . . . . . . . . . . . . . . . . . 6

Brown v. Texas,

443 U.S. 47 (1979). . . . . . . . . . . . . . . . . . . . . . . . 18

Ewumi v. State,

27 S.E.2d 257 (Ga. App. 2012) . . . . . . . . . . . . . . 13

Florida v. Bostick,

501 U.S. 429 (1991). . . . . . . . . . . . . . . . . . . . . 7, 14

Florida v. Jardines,

569 U.S. 1 (2013). . . . . . . . . . . . . . . 5, 6, 21-25, 27

Houston v. Hill,

482 U.S. 451 (1987). . . . . . . . . . . . . . . . . . . . . . . . 7

Kentucky v. King,

563 U.S. 452 (2011). . . . . . . . . . . . . . . . . . . . . 6, 23

Knight v. Jacobson,

300 F.3d 1272 (11th Cir. 2002). . . . . . . . . . . 23, 24

Michigan v. DeFillippo,

443 U.S. 31 (1979). . . . . . . . . . . . . . . . . . . . . . . . 18

Nieves v. Bartlett,

139 S. Ct. 1715 (2019). . . . . . . . . . . . . . . . . . 15, 18

Oliver v. United States,

466 U.S. 170 (1984). . . . . . . . . . . . . . . . . . . . . . . 21

vi

Payton v. New York,

445 U.S. 573 (1980). . . . . . . . . . . . . . . . . . . . . . . 27

Soza v. Demsich,

13 F.4th 1094 (10th Cir. 2021) . . . . . . . . . . . . . . 22

Terry v. Ohio,

392 U.S. 1 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Dunn,

480 U.S. 294 (1987). . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Lindsey,

482 F.3d 1285 (11th Cir. 2007). . . . . . . . . . . 23, 24

United States v. Perea-Rey,

680 F.3d 1179 (9th Cir. 2012). . . . . . . . . . . . 20, 21

United States v. Santana,

427 U.S. 38 (1976). . . . . . . . . . . . . . . . . . . . . 22, 27

United States v. Troop,

514 F.3d 405 (5th Cir. 2008). . . . . . . . . . . . . . . . 20

Webster v. Westlake,

41 F.4th 1004 (8th Cir. 2022) . . . . . . . . . . . . 22, 23

Wooley v. Maynard,

430 U.S. 705 (1977). . . . . . . . . . . . . . . . . . . . . . . . 6

CONSTITUTION, STATUTES, AND ORDINANCE

U.S. Const. amend. I . . . . . . . . . 1, 2, 6, 14-15, 18, 26

U.S. Const. amend. IV

. . . . . . . . . . . . . . 2, 4-5, 14, 16, 18-21, 23-24, 26-27

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

vii

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

O.C.G.A. § 16-10-24(a) . . . . . . . . . . . . . . . . . . . . . . . 12

O.C.G.A. § 16-11-39(a)(3) . . . . . . . . . . . . . . . . . . . . . 12

Peachtree City Ordinance 50-2 . . . . . . . . . . . . . . . . 12

OTHER AUTHORITIES

Jamesa J. Drake, Knock and Talk No More, 67

Me. L. Rev. 25 (2014), https://digitalcommons.

mainelaw.maine.edu/mlr/vol67/iss1/3 . . . . . . . . 26

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Tyler Brienza respectfully petitions for a

writ of certiorari to review the judgment and opinion of

the United States Court of Appeals for the Eleventh

Circuit entered on August 30, 2022.

OPINIONS BELOW

The August 30, 2022, opinion of the Court of

Appeals is unofficially reported at 2022 U.S. App.

LEXIS 24372; 2022 WL 3841095 and is contained at

pp. 1-24 of Appendix A. The May 3, 2021, decision of

the district court is reported at 536 F. Supp. 3d 1323

(ND Ga. 2021) and set out at pp. 25-41 of Appendix B.

The June 8, 2021 decision of the district court is

unofficially reported at 2021 U.S. Dist. LEXIS 132100

and set out at pp. 42-48 of Appendix C. The October 4,

2022, order denying rehearing is set out at p. 49 of

Appendix D.

JURISDICTION

The decision of the Court of Appeals was entered on

August 30, 2022. A timely petition for rehearing was

denied on October 4, 2022. On December 14, 2022,

Justice Thomas granted an application extending the

time for filing a petition until February 1, 2023. This

Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

A. First Amendment

The First Amendment to the U.S. Constitution

provides:

2

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.

B. Fourth Amendment

The Fourth Amendment to the U.S. Constitution

provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

INTRODUCTION

When it comes to the Fourth Amendment, a private

home is granted the highest level of protection against

government overreach. These protections extend from

the interior of the residence to its curtilage. And the

front step or porch of a home is a classic extension of

the home itself. There can be no intrusion by law

enforcement absent a warrant or exigent circumstances

with one limited exception: the “knock-and-talk.”

The “knock-and-talk” exception permits law

enforcement to travel the well-worn path to the front

door of a home and knock in the hope of talking to the

inhabitants. This exception is based on societal norms,

3

that any member of the public may approach and

knock at the front door, whether a neighbor, mail

carrier, or girl scout selling cookies. The occupants are

free to refuse to answer the door, answer the door and

refuse to answer any questions, or engage in

conversation with the law enforcement officers. Any

encounter between officers and those in the home is

completely voluntary. The officers have no authority to

mandate answers to their questions, let alone authority

to detain the occupants and threaten their arrest if

they fail to comply. After all, no neighbor, mail carrier,

or girl scout selling cookies would have such authority.

And if officers are traveling under the same societal

license as any other member of the public, then they

are restricted to what members of the public have the

authority to do.

As the front porch is afforded the same protections

as the interior of the home, if a “knock-and-talk”

exchange occurs on the porch, the same protections

should be afforded to the individuals in the home as if

they had never crossed the threshold of the door. But

that is not what happened here. In response to a

“knock-and-talk” by the Defendant Officers, Mr.

Brienza and the homeowner answered the door and

stepped onto the porch. After Brienza respectfully

refused to answer any questions or provide his name

and identification, he was detained and arrested

because he refused to answer questions or provide his

identification. The Eleventh Circuit twice noted that

Mr. Brienza stepped onto the porch, as if this action

authorized the Officers to mandate responses to their

questions and to detain and arrest him for failing to

provide his identification. But it is undisputed the

4

Officers did not have a warrant and were not acting

under exigent circumstances. As such, they had no

authority to do anything to Brienza when he remained

on the protected curtilage of the house.

A split exists regarding the authority of law

enforcement to detain individuals in the curtilage of

the home. The Ninth Circuit holds that any Terry Stop,

or investigative detention, on the curtilage is

prohibited by the Fourth Amendment.1 The Tenth

Circuit holds that the curtilage protections are not

exactly the same as those inside the home and that this

Court’s curtilage cases did not explicitly overrule prior

decisions permitting detentions on the front porch. And

other cases, such as this one and the Eighth Circuit,

fail to even acknowledge the voluntary nature of

“knock-and-talks” or the protections of the curtilage in

deciding the validity of front porch arrests.

“Knock-and-talks” have become an ever growing

investigative technique used by law enforcement

throughout the country. Indeed, some agencies have

task forces dedicated solely to “knock-and-talks.” While

the technique may be useful for law enforcement, the

instant case demonstrates the potential for abuse and

the failure of lower courts to follow this Court’s

directives regarding the protection of the home’s

curtilage.

1

In Terry v. Ohio, 392 U.S. 1, 30 (1968), this Court approved short,

investigative detentions of individuals—or Tier 2 encounters—in

public locations where law enforcement officers could point to

reasonable, objective facts supporting suspicion that an individual

engaged in criminal activity; this has become known as a “Terry

Stop.”

5

STATEMENT OF THE CASE

Legal Background

The Fourth Amendment provides that “[t]he right

of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

“[W]hen it comes to the Fourth Amendment, the home

is first among equals.” Florida v. Jardines, 569 U.S. 1,

6 (2013). For Fourth Amendment purposes, a private

residence extends to the area “immediately

surrounding [the] house – in the curtilage of the house,

which we have held enjoys protection as part of the

home itself.” Id. at 6. And “[t]he front porch is the

classic exemplar of an area adjacent to the home and to

which the activity of home life extends.” Id. at 9

(citations omitted).

Law enforcement officers who approach a home

without a warrant and under no exigent circumstances

are prohibited from entering the curtilage, let alone the

interior of the home, with one narrow exception: the

“knock-and-talk.” A “knock-and-talk” encounter

between law enforcement and inhabitants is completely

voluntary.

When law enforcement officers who are not

armed with a warrant knock on a door, they do

no more than any private citizen might do. And

whether the person who knocks on the door and

requests the opportunity to speak is a police

6

officer or a private citizen, the occupant has no

obligation to open the door or to speak. Cf.

Florida v. Royer, 460 U.S. 491, 497-498, 103 S.

Ct. 1319, 75 L. Ed. 2d 229 (1983) (“[H]e may

decline to listen to the questions at all and may

go on his way”) … 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.

Kentucky v. King, 563 U.S. 452, 469-70 (2011). This

narrow exception exists based on societal customs: “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.”

Jardines, 569 U.S. at 8, quoting, Breard v. Alexandria,

341 U.S. 622, 626 (1951). The visitor is permitted “to

approach the home by the front path, knock promptly,

wait briefly to be received, and then (absent invitation

to linger longer) leave.” Id. As Justice Scalia noted, the

process “does not require fine-grained legal knowledge;

it is generally managed without incident by the

Nation’s Girl Scouts and trick-or-treaters.” Id.

While the “knock-and-talk” is a voluntary encounter

and inhabitants are under no obligation to engage in

conversation with law enforcement, the First

Amendment also protects the inhabitants from

responding to the officers’ questions. “[T]he right of

freedom of thought protected by the First Amendment

against state action includes both the right to speak

freely and the right to refrain from speaking at all.”

Wooley v. Maynard, 430 U.S. 705, 714 (1977). As this

7

Court noted thirty years ago: “We have consistently

held that a refusal to cooperate, without more, does not

furnish the minimal level of objective justification

needed for a detention or seizure.” Florida v. Bostick,

501 U.S. 429, 437 (1991). And “[t]he freedom of

individuals verbally to oppose or challenge police

action without thereby risking arrest is one of the

principal characteristics by which we distinguish a free

nation from a police state.” Houston v. Hill, 482 U.S.

451, 462-63 (1987).

Factual Background

On the evening of Saturday, September 26, 2015,

Lieutenant Matt Myers of the Peachtree City Police

Department was off-duty and scrolling through

Facebook on his phone when he noticed someone posted

a flyer on the “Life in The PTC Bubble” Facebook page

for a party that was supposed to start at 9:00 p.m. at

434 Plantain Terrace. The Facebook post was made by

a woman who claimed some man gave her 14-year old

daughter the flyer at a homecoming dance.

Myers texted a copy of the Facebook post to

Defendant Corporal Mark Williams and asked him to

follow up and see if an “illegal party” was taking place

at the address on the flyer. Williams was serving as the

shift supervisor that night. Williams in turn asked

Defendant Corporal Adam Wadsworth to accompany

him to the address on the flyer to investigate whether

an “illegal party” was taking place. No officer ever

contacted the woman who made the Facebook post, or

her daughter, to confirm the statements in the

Facebook post. There were no noise complaints by

neighbors or any other direct complaints of an alleged

8

“illegal party” at this address. The flyer was the only

thing that gave the officers a hunch that a potential

“illegal party” may be taking place that night.

Typical parties in Peachtree City include lots of cars

and golf carts, music playing, lights on, and people

fleeing the scene when law enforcement arrive. In fact,

the previous night, Williams, Wadsworth and three

other officers responded to complaints of a party of

underage students, where the street was lined with

cars and golf carts as well as high school aged minors

hanging around the neighborhood and others

barricaded in the house refusing to talk to the police.

Wadsworth and Williams arrived at the residence at

approximately 10:00 p.m.—an hour after the party was

supposed to start per the flyer. In contrast to their

encounter the night before, as Williams and

Wadsworth approached the house, there were no signs

of a party: there were not a lot of cars or golf carts, no

loud music, no cups in the yard, no damage to

anything, and the lights were dim. The house looked

dark and it was quiet. There was no one outside and no

one was running away from the house. Wadsworth and

Williams did not seek, nor have, a warrant when they

arrived.

Williams remarked to Wadsworth that maybe the

flyer was “something to mess with these people” as

there was no sign of a party.2

2

Each officer had dash cams installed in their vehicles; their

vehicles were not parked facing the house, so the video does not

show the interactions, but their body mic packs picked up audio of

the encounter. Williams’ dash cam video can be accessed here:

9

There was only one car in the driveway; they called

in the license plate and dispatch said the vehicle

belonged to Plaintiff Tyler Brienza and provided his

address. Meanwhile, Wadsworth walked around the

curtilage of the house to peer into the windows;

Williams asked if there was anyone “out back” and

Williams said he saw “someone sitting in there.”

The officers then knocked on the front door. As the

officers approached the door, there was still no

indication that a party was taking place or that any

crime was being or had been committed. The only

evidence of an alleged “illegal party” was the flyer. And

as he knocked on the door, Williams did not believe

that a party was happening at the residence.

Brienza answered the door with his friend, the

homeowner, Brian Walsh. When they opened the door,

the officers could see into the home down a hallway to

a room with a light on; there was no music but they

could hear people quietly speaking.

Williams asked if he could talk to the two men and

Brienza and Mr. Walsh stepped onto the front porch.

There was no evidence that a party was going on or

drinking was occurring at the time they were talking to

Walsh and Brienza.

Williams immediately asked if they were alone. Mr.

Brienza respectfully declined to answer any questions.

Williams then asked for Brienza’s name and he

declined to answer. Williams admits that he became

https://youtu.be/Tf9ffypN5Ac and Wadsworth’s dash cam video can

be accessed here: https://youtu.be/NsgcmfiMvMg

10

upset and agitated with Brienza because he refused to

talk to him.

Williams then turned to Mr. Walsh and asked if he

would answer any questions; Mr. Walsh said he wanted

to know what “this is about?” Williams finally said,

“I’m investigating something and y’all required to give

me your name and address.” He then added that he

was investigating an alleged “illegal party” at that

address.

Walsh told Williams that there was no illegal

activity happening at the home and that the people in

the house were all over the age of 21. Williams asks for

Mr. Walsh’s name, which he provided.

Williams then admits that they “got off on the

wrong foot.” Mr. Walsh told the officers that he had

nothing to do with the flyer and that there were only

four people in the house. Williams again asked Walsh’s

name and age and asked for Plaintiff’s age; Walsh told

Williams that he was 26 and Brienza was 25 years old.

Williams then asked how many people were in the

house and Walsh told him there were only two other

men inside the home, four people total, and everyone

was over the age of 21.

Williams demanded that the others in the house

come outside and show their identification. Brienza

said that they did not consent to searches and Williams

snapped that he was not talking to him and threatened

him, “if you say one more word, we’re gonna have an

issue, okay? When I talk to you, then you can talk.”

Williams again ordered Walsh to bring the other two

men outside and told him they were required “by law”

11

to provide their name and birthdate. Williams

demanded that the other two men show him their IDs.

Then Williams turned to Brienza and asked if he

was going to provide his ID “or at least a name and

birthdate.” Brienza asked if he was being detained and

Williams said yes, that Brienza was detained because

of his refusal to answer Williams’s questions when they

first opened the door. Brienza said he did not want to

answer any questions and Williams said he “respected

that” but he needed to provide his name and birthdate.

Brienza then provided his first name and Williams

became even more agitated and demanded his

birthdate so he could check for warrants. When

Brienza again declined to provide his last name and

birthdate, Williams told him to turn around and put

his hands behind his back and handcuffed him. He told

Brienza that he was under arrest and that he was

“going to sit in jail for a long time” for refusing to

provide his identification.

After Williams arrested Brienza, he asked Walsh to

provide Brienza’s full name, which Walsh did. Williams

and Wadsworth then looked up Brienza on their

onboard computer and obtained his driver’s license

number and date of birth prior to transporting him to

the station for booking. Williams asked Walsh why

Brienza was “so defiant” and had an “attitude” and

once again asked for Brienza’s age.

Williams never articulated any suspicion that a

crime occurred, or was occurring, prior to demanding

that Brienza provide identification. Throughout the

encounter, Plaintiff was calm and did not raise his

12

voice let alone use any “fighting words.” He was simply

asserting his rights not to speak to the police. Williams

arrested Brienza for failing to provide his

identification.

Williams made the decision for Brienza to be taken

to jail; Wadsworth assisted in the detention and arrest

of Plaintiff and served as the official arresting officer

on departmental records. Wadsworth issued Brienza a

citation for “Resisting or Interfering with an Officer”

under Peachtree City Ordinance 50-2 because he

“failed to ID during an investigation.” The Officers

could have simply issued Brienza a citation instead of

arresting him and taking him to jail. Williams claims

he did not issue Brienza the citation and release him

because he thought Brienza would: maybe refuse to

sign the citation; fail to appear in court; and claims

there was a safety consideration in taking him out of

the handcuffs though he admits Brienza was polite and

calm throughout their interaction. Williams issued the

same citation the night before at the previous party

and did not arrest the individual even though that man

refused to sign the citation.

Brienza was held at the Fayette County Jail for

approximately 22 hours until being released on bond.

The state prosecutor amended the Charge to

“Obstruction of a Law Enforcement Officer” under

O.C.G.A. § 16-10-24(a). Subsequently, Brienza was also

charged with violating O.C.G.A. § 16-11-39(a)(3),

disorderly conduct, for allegedly using “opprobrious or

abusive words which by their very utterance tend to

incite to an immediate breach of the peace” or “fighting

words.”

13

Brienza was prosecuted for these violations for over

four years. Following evidentiary rulings and appeals,

the criminal trial finally began on October 9, 2019.

Before the jury was called in, the State dropped the

charge of disorderly conduct.

Following the close of evidence, Brienza moved for

a directed verdict. Specifically, Mr. Brienza’s counsel

argued that the officers agreed there was no evidence

of any crime being committed when the officers

approached the door of the home and that there was no

reasonable articulable suspicion that any continuation

of their alleged investigation was necessary at that

point and as such Mr. Brienza was under no

requirement to answer the officers’ questions. The

court denied the motion for a directed verdict; however,

the court permitted additional briefing on the issue.

The next morning, on October 10, 2019, the criminal

court announced that it was incorrect in previously

characterizing the officers at the door as a Tier 2

encounter and that instead, it was a Tier 1 voluntary

encounter and Mr. Brienza was free to walk away and

not answer any questions, citing to Ewumi v. State, 27

S.E.2d 257, 262 (Ga. App. 2012). Despite finding that

the entire encounter between the officers and Mr.

Brienza was a Tier 1 voluntary encounter, the trial

court stated it would send the case to the jury

regarding a potential “hindrance” with Mr. Walsh, or

whether there was any interruption of Walsh

voluntarily providing information to the officers.

On October 10, 2019, just prior to the charge

conference, the State moved for the issuance of a nolle

prosequi on the obstruction charge, noting that if it was

14

a Tier 1 encounter, there could not be obstruction of the

officers; the court granted the motion the next day, on

October 11, 2019.

Proceedings Below

Plaintiff Brienza filed his initial Complaint on

September 21, 2017 alleging violations of his First and

Fourth Amendment rights against the individual

Defendants pursuant to 42 U.S.C. § 1983, state law

claims of false arrest and attorney’s fees against all

Defendants and a claim of negligence against the City.

However, since the underlying criminal proceedings

were ongoing, the Parties sought and were granted a

stay of the case until the resolution of the criminal

charges. The case was reopened on November 4, 2019

after the criminal trial ended in Brienza’s favor; he

sought, and was granted, leave to amend his Complaint

to include a claim for malicious prosecution in violation

of the Fourth Amendment against the individual

Defendants.

At the close of discovery, all Defendants moved for

summary judgment as to all counts. On May 3, 2021,

the District Court entered an Order granting summary

judgment for the individual Defendants as to all counts

against them and directing additional briefing as to

whether the City waived its sovereign immunity

through the purchase of liability insurance.

As to the Fourth Amendment claim, the District

Court granted qualified immunity to the officers,

focusing mainly on this Court’s decision in Florida v.

Bostick, 501 U.S. 429 (1991):

15

Here, Brienza argues that there was no probable

cause or arguable probable cause to arrest him

because a reasonable officer would know that an

individual is not required to provide his

identification during a first-tier encounter with

police. He points to the Supreme Court’s decision

in Florida v. Bostick, 501 U.S. 429, 437, 111

S. Ct. 2382, 115 L. Ed. 2d 389 (1991), as

affirmation that “a refusal to cooperate, without

more, does not furnish the minimal level of

objective justification needed for a detention or

seizure.”

But in Bostick, officers randomly stopped a bus

rider and arrested him when he refused to let

them search his luggage. This Court has since

distinguished cases such as Bostick from cases

in which the officers conducted a stop based on

reasonable suspicion that the suspect was

committing or had committed a crime.

App. 31. The District Court continued that, “[t]he

Supreme Court has thus far declined to expressly hold

that an officer conducting a search supported by

reasonable suspicion may arrest a suspect for

obstruction.” App. 32. And the District Court further

found that “[b]ased on the record, there was reasonable

suspicion to initiate the stop.” App. 33.

As to the First Amendment claim, the District Court

held that probable cause for Brienza’s arrest foreclosed

this count as this Court’s decision in Nieves v. Bartlett,

139 S. Ct. 1715, 1722 (2019) was decided four years

after Brienza’s arrest. App. 35. The District Court

subsequently granted summary judgment for the City

16

on June 8, 2021 and judgment was entered in favor of

all Defendants the same day. App. 40-41, 48.

Brienza timely filed his Notice of Appeal to

Eleventh Circuit on July 6, 2021 as to both Orders and

the judgment in favor of all Defendants.

The Eleventh Circuit upheld the District Court’s

decision. As to the Fourth Amendment claim, the

appellate court found that Brienza’s argument that

there was no basis to detain Brienza and that he could

refuse to answer questions in the voluntary encounter

was “mistaken.” App. 14.

Brienza’s argument that the officers violated his

Fourth Amendment rights includes two

premises. First, “[a]ny reasonable articulable

suspicion the officers had regarding an alleged

‘illegal party’ at . . . Walsh’s house evaporated

within minutes of their arrival at the residence.”

Second, when officers lack reasonable suspicion,

an encounter is voluntary, so Brienza “had the

right to refuse to answer any questions and was

free to retreat back into the home.” Brienza

concludes that the officers violated his Fourth

Amendment rights when they arrested him for

refusing to cooperate because such refusal could

not support reasonable suspicion. See Florida v.

Bostick, 501 U.S. 429, 437 (1991) (“We have

consistently held that a refusal to cooperate,

without more, does not furnish the minimal level

of objective justification needed for a detention

or seizure.”); Florida v. Royer, 460 U.S. 491, 49798 (1983) (plurality opinion) (explaining that,

absent reasonable suspicion, “[t]he person

17

approached . . . need not answer any question

put to him; indeed, he may decline to listen to

the questions at all and may go on his way” and

“his refusal to listen or answer does not, without

more, furnish” reasonable suspicion).

Both premises are mistaken. The officers could

lawfully detain Brienza after he stepped onto

the porch based on the reasonable suspicion that

underage drinking was taking place. The officers

thus had probable cause to believe that Brienza

obstructed their investigation by refusing to

cooperate after his lawful detention.

The officers had probable cause—and at least

reasonable suspicion—to believe that an illegal

party was taking place at the house, so they

could lawfully detain Brienza when he stepped

onto the porch. See Lindsey, 482 F.3d at 1290;

see also Knight v. Jacobson, 300 F.3d 1272, 1277

(11th Cir. 2002) (explaining that the Fourth

Amendment “does not prevent a law

enforcement officer from telling a suspect to step

outside his home and then arresting him

without a warrant” because, “[i]n that situation,

the officer never crosses the firm line at the

entrance to the house” (quotation omitted)).

...

We conclude that probable cause and at least

reasonable suspicion existed to detain Brienza

on the porch to investigate underage drinking,

barring a claim for false arrest under the Fourth

Amendment. See Williams v. Aguirre, 965 F.3d

1147, 1158 (11th Cir. 2020) (“[T]he any-crime

rule . . . insulates officers from false-arrest

18

claims so long as probable cause existed to

arrest the suspect for some crime, even if it was

not the crime the officer thought or said had

occurred.”).

App. 13-14, 16. (cleaned up).

The Eleventh Circuit found that Brienza’s failure to

identify himself, or provide his ID, violated the state’s

obstruction law and as such, his arrest did not violate

the Fourth Amendment. The court continued that

“even if it is an open question whether the Constitution

permits ‘punish[ing] [an individual] for refusing to

identify himself in the context of a lawful investigatory

stop,’ Brown v. Texas, 443 U.S. 47, 53 n.3 (1979), the

officers need only establish that they had probable

cause to believe that Brienza violated a ‘presumptively

valid’ statute, see Michigan v. DeFillippo, 443 U.S. 31,

34, 36-40 (1979).” App. 17-18. The court held that the

warrantless arrest did not violate the Fourth

Amendment because “Brienza repeatedly refused to

identify himself and confirm his date of birth. And

Brienza orally objected when Corporal Williams asked

Walsh if he could see the other people who were inside

the house;” and this occurred in the presence of the

officers. App. 18.

As to the First Amendment claim, the Eleventh

Circuit noted that the Amendment “protects an

individual’s right to speak and right not to speak.” App.

19-20. But it agreed with the District Court that Nieves

did not apply because it was decided four years after

Brienza’s arrest and could not put the officers on

notice, and that probable cause for his arrest that

defeated this claim. App. 21-22.

19

The Eleventh Circuit denied a timely petition for

rehearing. App. 49.

REASONS FOR GRANTING THE WRIT

I.

The Circuits are Split Regarding the

Question Presented

This Court’s precedent makes clear that the

curtilage of the home is afforded the same protections

as the interior of residences under the Fourth

Amendment. That law enforcement have no authority

to mandate detentions, or conduct searches, without a

warrant or exigent circumstances. The “knock-andtalk” limited exception to the warrant requirement is

a voluntary, consensual encounter that does not

implicate the Fourth Amendment. The inhabitants of

a home cannot be compelled to converse with law

enforcement, let alone be subjected to an involuntary

detention absent exigent circumstances. The voluntary

nature of this limited exception should apply whether

the individuals are inside the home, put one foot on the

porch and keep one foot in the house, or cross the

threshold onto the curtilage of the home. After all, the

exception is based on social norms—that any member

of the public can approach a home and knock on the

door. And no member of the public could detain, let

alone arrest, individuals inside a home or in the

curtilage of the home. The same should be true for law

enforcement officers who do a “knock-and-talk” at a

home.

Yet, the lower courts are divided regarding the

question presented. The Ninth Circuit holds that

investigative detentions in the curtilage of the home

20

violate the Fourth Amendment. The Tenth Circuit

claims that this Court’s precedent does not clearly

apply the protections of the curtilage to detentions of

people. And other courts, such as the Eleventh Circuit

in this case, and the Eighth Circuit in a recent case,

ignore the protections of the curtilage and fail to even

cite this Court’s cases bearing on the issue, though the

Eighth Circuit found the arrest invalid on other

grounds. This case presents a clear opportunity for this

Court to reinforce that the curtilage of the home is

entitled to the same protections afforded inside the

home—that law enforcement have no authority to

detain persons without a warrant or exigent

circumstances whether a person is inside the home or

in the curtilage of the home.

The Ninth Circuit

In United States v. Perea-Rey, 680 F.3d 1179 (9th

Cir. 2012), the court held that law enforcement officers

could not transform a “knock-and-talk” into a Terry

stop of the inhabitants of the home. Id. at 1189. There,

the government argued that the “knock-and-talk”

exception permitted entry to the curtilage, which in

turn, resulted in the detention of Perea-Rey. The court

disagreed. The court noted that officers are permitted

to initiate a “knock-and-talk,” but “once an attempt to

initiate a consensual encounter with the occupants of

a home fails, ‘the officers should end the knock-andtalk and change their strategy by retreating cautiously,

seeking a search warrant, or conducting further

surveillance.’” Id. at 1188, quoting United States v.

Troop, 514 F.3d 405, 410 (5th Cir. 2008). The exception

does not permit more than voluntary engagement and

21

the court held that detaining Perea-Rey on the

curtilage of his home violated his Fourth Amendment

rights.

An expansion of that exception to allow for Terry

stops or searches and seizures within the

curtilage is wholly inconsistent with Oliver and

Dunn. At most, the knock and talk exception

authorizes officers to enter the curtilage to

initiate a consensual conversation with the

residents of the home. If we were to construe the

knock and talk exception to allow officers to

meander around the curtilage and engage in

warrantless detentions and seizures of residents,

the exception would swallow the rule that the

curtilage is the home for Fourth Amendment

purposes. We hold that the warrantless

incursion into the curtilage of Perea-Rey’s home

by border patrol agents and the resulting

searches and seizures violated Perea-Rey’s

Fourth Amendment rights.

Id. at 1189. Perea-Rey pre-dates this Court’s decision in

Jardines. That court found this Court’s prior decisions

discussing the difference between open fields and the

curtilage of the home provided notice that such

curtilage detentions violate the Fourth Amendment.

See Oliver v. United States, 466 U.S. 170 (1984); United

States v. Dunn, 480 U.S. 294 (1987).

22

The Tenth Circuit

In Soza v. Demsich, 13 F.4th 1094 (10th Cir. 2021),

the Tenth Circuit claimed that the “knock-and-talk”

exception shows that “[i]t is not entirely accurate to say

that curtilage, particularly the front porch, receives

identical protections as the home.” Id. at 1106 n.9

(emphasis in original). There the court found that the

detention of an individual on their front porch is

permissible under this Court’s decision in United States

v. Santana, 427 U.S. 38 (1976). Id. at 1106. The court

acknowledged Jardines, but found that at most, it only

“eroded” the “foundation” of Santana which permitted

a warrantless arrest on a porch. Id. at 1107. It further

made a distinction between entering the porch to

conduct a search, which was impermissible, between

seizures on a porch, which it found permissible under

Santana. Id. at 1106. Finally, the court acknowledges

that Santana predates the “curtilage doctrine” but

states it has not been overruled and “[i]f the Supreme

Court believes that this aspect of Santana is no longer

good law in light of the subsequent development of the

curtilage doctrine, it is free to overrule that holding. In

the absence of such a ruling, however, the

constitutionality of a warrantless entry onto a publicly

accessible front porch for the purpose of a seizure

remains, at the very least, unclear.” Id.

Eighth Circuit

Recently, the Eighth Circuit reversed the charge of

“interference with official acts” against a woman who

was questioned on her porch by law enforcement

officers who did not have a warrant and were not

acting under exigent circumstances. See Webster v.

23

Westlake, 41 F.4th 1004, 1013 (8th Cir. 2022). The

officers were demanding entrance to her home to check

on her daughter, or alternatively, have her bring her

daughter outside or to the police station. Curiously, the

court does not cite to Jardines or any reference to the

fact that her porch is on the curtilage of her home and

is a protected location under the Fourth Amendment.

Instead, the Fourth Amendment discussion concerned

the prohibition from entering the home without a

warrant or exigent circumstances and the due process

clause regarding parental rights. Id. at 1011.

II.

The Eleventh Circuit’s Decision is Wrong

Although the encounter between Brienza and the

Defendant Officers occurred through a “knock-andtalk,” the Eleventh Circuit’s decision in this case fails

to: use the words “knock-and-talk;” acknowledge that

it is undisputed that the Defendant Officers arrived at

the home without a warrant and were not acting under

any exigent circumstances; cite to this Court’s

precedent regarding curtilage protections and “knockand-talks.” App. 1-24.

The court’s decision overlooks this Court’s decision

in Kentucky v. King, 563 U.S. 452, 469-70 (2011), and

fails to acknowledge that Brienza, and others in the

home, had the right to refuse to answer questions and

go on their way. Instead, the Eleventh Circuit twice

mentions that Brienza “stepped onto the porch,” citing

United States v. Lindsey, 482 F.3d 1285, 1290 (11th

Cir. 2007) and Knight v. Jacobson, 300 F.3d 1272, 1277

(11th Cir. 2002) for the proposition that the Officers

had authority to order Brienza out of the house or

detain him once he crossed the threshold of the door.

24

App.14. Of course, this view is contrary to this Court’s

ruling that a front porch is part of a private residence’s

protected curtilage under the Fourth Amendment.

Florida v. Jardines, 569 U.S. 1, 6, 9 (2013).

Accordingly, contrary to the opinion’s conclusion, when

Brienza stepped onto the porch, immediately in front of

the door to the house, he did not forego or even lessen

his Fourth Amendment rights—they were the same as

if he maintained his presence inside the home.

Further, Lindsey had nothing to do with a “knockand-talk” or the curtilage of a home; there, law

enforcement searched the defendant’s vehicle—not his

home—and only after corroborating an anonymous tip

through investigation and personal observations.

Lindsey, 482 F.3d at 1291. And in Knight, which predates Jardines, the officer obtained statements directly

from the alleged victim, which the officer believed

supported Knight’s arrest outside of the home because

the allegations concerned threats of bodily harm—or

what may be considered exigent circumstances. Knight,

300 F.3d at 1275.

The court’s opinion also overlooks that the Officers

had no right to demand information absent a warrant

or exigent circumstances. Instead, in taking the facts in

favor of the Defendant Officers rather than Brienza,

the opinion claims that the Officers “had probable

cause—and at least reasonable suspicion—to believe

that an illegal party was taking place at the house, so

they could lawfully detain Brienza when he stepped

onto the porch.” App. 14. This overlooks the evidence

that Brienza was an inhabitant in a private home that

was dark, quiet, and with no evidence that an “illegal

25

party” was taking place. The court’s opinion even

claims that “Wadsworth reported that he ‘saw [people]

in the house,’ a fact that supports the information on

the flyer.” App. 15. Actually, Wadsworth walked

around the side and back of the house and peered in

the windows and said he saw “someone sitting in

there.”3 In other words, Wadsworth violated Jardines

to even see a person in the house. But what is

suspicious about seeing a person in a private home on

a Saturday night? As for the flyer, it was based on an

unverified Facebook post and at most would constitute

an unsubstantiated anonymous complaint. The fact

that a recent graduate lived at the address and her

mother was on vacation does nothing to confirm the

Facebook post. Instead, it is simply contributed to the

hunch that a party may be happening at the house. But

the actual observances at the private residence show

that there was zero suspicion of any illegal acts. Even

under the paradigm put forth by the Eleventh Circuit,

as though this were an encounter on public property

not the curtilage of a private residence, if the facts and

inferences were taken in Brienza’s favor, there was no

reasonable suspicion—arguable or otherwise, let alone

probable cause, of any crime taking place at the

residence or that Brienza was personally involved in

criminal activity. Instead, Brienza had a voluntary

encounter with the Defendant Officers and was free to

decline to answer any of their questions. But the court

overlooked key facts and inferences in Brienza’s favor

3

This exchange is audible on Wadsworth’s dash cam video at 2:44,

available at: https://youtu.be/NsgcmfiMvMg

26

and instead improperly drew inferences in favor of the

Defendants.

The Eleventh Circuit’s opinion is wrong regarding

Brienza’s Fourth Amendment claims, which of course,

means the ruling that probable cause barred Brienza’s

First Amendment claim is wrong as well.

III.

This Case Presents An Excellent Vehicle to

Address a Question of Great Importance

This is a clear case for this Court to reinforce the

protections of the curtilage of the home, the voluntary

nature of a “knock-and-talk,” and direct the lower

courts to adhere to this Court’s precedent regarding the

same.

“Knock-and-talks” are occurring with greater

frequency. Indeed, some police departments have

created their own “knock-and-talk” task forces or

divisions. See Jamesa J. Drake, Knock and Talk No

More, 67 Me. L. Rev. 25, 34-36 (2014), available at:

https://digitalcommons.mainelaw.maine.edu/mlr/vol6

7/iss1/3. (noting the Dallas Police Department has a

“46-member knock and talk task force” and that

Orange County Florida Sheriff’s office has a division

that is “dedicated to performing knock-and-talks”); see

also, Bovat v. Vermont, 141 S. Ct. 22, 22 (2020), J.

Gorsuch statement (noting the “‘knock and talk’ is an

increasingly popular law enforcement tool”). While a

“knock-and-talk” is obviously seen by law enforcement

as an effective investigative technique, it is also open to

abuse as shown in the instant case, wherein the

protections of the home, and curtilage thereof, are

27

ignored and law enforcement unlawfully detain

inhabitants in an attempt to compel information.

The lower courts, as in this case, are ignoring this

Court’s precedent mandating the protections of the

home and curtilage. The Tenth Circuit’s claim that

Jardines was about a search and not a detention of a

person, and thus did not overrule Santana, is

disingenuous because the Fourth Amendment does not

differentiate searches and seizures of persons versus

property, let alone rank one above the other. See

Payton v. New York, 445 U.S. 573 (1980) (noting the

Fourth Amendment uses “terms that apply equally to

seizures of property and to seizures of persons”). As

shown above, the Eleventh Circuit failed to even

address the curtilage doctrine let alone the limited

“knock-and-talk” exception.

Recently, Justice Gorsuch made a statement

regarding the denial of a petition for certiorari

regarding a search by the Vermont game wardens that

is prescient for the instant matter. He stated, “I

acknowledge that understandable reasons exist for my

colleagues’ decision to let this case go. For one, it is

unclear whether Jardines’s message about the

protections due a home’s curtilage has so badly eluded

other state or federal courts. For another, there might

be reason to hope that, while Vermont missed Jardines

in one deer-jacking case, its oversight will prove a stray

mistake. But however all that may be, the error here

remains worth highlighting to ensure it does not

recur.” Bovat v. Vermont, 141 S. Ct. 22, 23-24 (2020).

Respectfully, the message has eluded many lower

courts and this Court should intervene.

28

If the “knock-and-talk” limited exception is truly

based on societal norms permitting any member of the

public to knock on an individual’s front door, then law

enforcement must comport with the voluntary nature

of the encounter—whether the encounter occurs on the

curtilage of the home, the person who answers the door

puts one foot on the porch and keeps the other foot in

the house, or the inhabitants do not cross the

threshold. After all, if someone answers the door to a

girl scout’s knock and steps on the front porch to talk

to them, everyone will agree that the girl scout could

not detain the individual, demand the individual’s

identification and threaten the individual with arrest

for noncompliance, and then actually arrest the

individual for not producing identification. Members of

the public do not have such authority and neither do

law enforcement officers conducting a “knock-and-talk.”

CONCLUSION

For the above reasons, a writ of certiorari should

issue to review the judgment and opinion of the

Eleventh Circuit Court of Appeals.

Respectfully submitted,

RICHARD E. JOHNSON

LISA C. LAMBERT

Counsel of Record

LAW OFFICE OF

LAW OFFICE OF

LISA C. LAMBERT

RICHARD E. JOHNSON

245 N. Highland Avenue

314 West Jefferson Street Suite 230-139

Tallahassee, Florida 32301 Atlanta, Georgia 30307

850-425-1997

404-556-8759

rick@rej-law.com

lisa@civil-rights.attorney

Counsel for Petitioner