Defense win! Officers’ entry onto front porch violated the 4th Amendment

USA v. Jeremy D. Banks, Appeal No. 22-1312 (7th Cir. Feb. 13, 2023).

Banks, a convicted felon, posted a video on Snapchat showing himself barbequing on his front porch with a gun nearby. Officers saw the video and raced to his house without a warrant. They walked onto Banks’s porch, caught him by surprise, engaged in a tussle, and arrested him in his front room where they spotted a box of ammunition and found a semi-automatic pistol in his pocket. The 7th Circuit held that police needed a warrant to enter the porch and house. The evidence should have been suppressed.

According to the 7th Circuit, SCOTUS has made clear that the 4th Amendment protects the home’s curtilage, the area immediately surrounding the home itself. Oliver v. United States, 466 U.S. 170, 180 (1984). Thus, police officers must have a warrant to enter either the home or its curtilage, unless one of a few limited exceptions applies. See Lange v. California, 141 S. Ct. 2011, 2017 (2021). (Opinion, at 4).

The exceptions allow warrantless entry when, for example, exigent circumstances exist, the resident consents to entry, or the officers conduct a knock-and-talk. See id. (explaining that exigent circumstances include rendering emergency aid, preventing the imminent destruction of evidence, or engaging in hot pursuit of a fleeing felon); United States v. Correa, 908 F.3d 208, 221 (7th Cir. 2018) (consent); see Jardines, 569 U.S. at 8 (knock-and-talk). These exceptions reflect and reinforce that the Fourth Amendment’s “ultimate touchstone” remains “reasonableness.” Kentucky v. King, 563 U.S. 452, 459 (2011) (citation omitted). (Opinion at 4-5).

None of the exceptions applied to Banks’s case. Banks did not consent to police entering his porch or house. He presented no imminent threat or flight risk. Police did not attempt a consensual knock-and-talk. If the officers’ unlicensed physical intrusion onto to his porch created exigent circumstances they could not use them to justify their warrantless entry. (Opinion at 5-6).

The 7th Circuit rejected the government’s argument that Banks’ case was just like United States v. Richmond, 924 F.3d 404 (7th Cir. 2019). In that case, Milwaukee officers saw Richmond acting suspiciously and carrying what appeared to be a gun in his shirt pocket. They followed him and saw him hide something on his front porch. Richmond consented to letting the officers step onto his porch. At that point they confirmed that he was a convicted felon and that he had stashed a gun behind his screen door. The 7th Circuit noted the obvious difference between the two cases: Richmond consented to officers entering his porch; Banks did not. (Opinion at 6).

The 7th Circuit concluded its decision with a “big picture takeaway”:

The big picture takeaway from today’s decision deserves underscoring. The police could have avoided this outcome by taking a small but necessary step. The suppression testimony confirmed that Sangamon County, where Springfield is located, has a judge on call 24 hours a day, 365 days a year to consider and issue search warrants. The officers here had more than enough to pick up the telephone, call the on-duty judge, and get the authorization the Fourth Amendment required before stepping onto Banks’s porch. (Opinion at 8-9).