French v. Merrill

15 F.4th 116

• Court: Court of Appeals for the First Circuit
• Decided: October 1, 2021
• Docket: 20-1650P
• Status: Published

Opinion

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.

- 2 - 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.

- 3 - 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.

- 4 - 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

- 5 - 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.

- 6 - 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

- 7 - 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.

- 8 - 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.

- 9 - 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

- 10 - 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

- 11 - 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.

- 12 - 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

- 13 - 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.

- 14 - 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).

- 15 - 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

- 16 - 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

- 17 - 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

- 18 - 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

- 20 - 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

- 21 - 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

- 44 - 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

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.

"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)).

- 64 - 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.

- 65 - 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."

- 66 - 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

- 67 - 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

- 68 - 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

- 69 - 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.

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

- 70 - 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.

- 71 -