Author: HP McLovincraft

All gun owners fully understand the vital importance of preserving the Second Amendment. But right behind that Constitutional Amendment in importance is the need to uphold the Fourth Amendment’s protection against unreasonable searches and seizures.

After all, without robust Fourth Amendment rights, we will never have much of a Second Amendment right. For that reason, both Gun Owners of America and Gun Owners Foundation have regularly filed amicus briefs to guard against erosion of Fourth Amendment rights. We recently filed such an amicus brief in the U.S. Supreme Court, asking the High Court to ensure that law enforcement not abuse the investigative technique known as “knock and talk.”

As more and more states seek to ban more and more classes of previously legal firearms, gun confiscation has become an ever-greater threat. Historically, the Fourth Amendment’s protections have been greatest when applied to the home, which also happens to be where most guns are kept. The Supreme Court has discussed the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.

However, the courts have recognized that police have the right to “knock” on the door of your home, and “talk” to you – if you agree to speak. In Florida v. Jardines, 569 U.S. 1 (2013), the U.S. Supreme Court ruled that all visitors – including the police – have an “implicit license” to “[i] approach the home by the front path, [ii] knock promptly, [iii] wait briefly to be received, and then (absent invitation to linger longer) [iv] leave.” That rule seems entirely reasonable – but it is astonishing how police have come to abuse that “implicit license.”

In a recently decided case from North Carolina, State v. Reel, 297 N.C. App. 205 (N.C. Ct. App. 2024), the police broke every one of the rules, but the search was upheld. The officers suspected drug dealing was going on at a house, so they parked on a side street and crossed the defendant’s side yard – not the front yard. They followed a visitor to the front door, and when the defendant opened the door for the visitor, tried to force their way in behind her. The police never actually knocked. And, they never actually talked – except to demand the door be opened so they could rush in, claiming to have smelled marijuana. When the defendant refused and shut the door, another officer kicked in the door, searching for and seizing drugs. Thus, “knock and talk” was used as a pretext to conduct a warrantless search and seizure in a home. Nevertheless, North Carolina’s two highest courts approved.

GOA’s amicus brief urged the U.S. Supreme Court to impose a “bright-line” rule for law enforcement, so officers would know their limits, and judges would have a clear rule to enforce. We argue that since the “implied license” was based on the fact that any visitor – such as trick-or-treaters or girl scouts – to a house could “knock and talk,” the police could do the same. So we took that justification and suggested it be made the rule – a clear limitation on what the police could do. We proposed the rule to be:

The right of a police officer to conduct a “knock-and-talk” is no greater than a Girl Scout has to approach a house to sell cookies.

Since a Girl Scout cannot walk around your house to the back yard to the back door, neither can the police. Since a Girl Scout cannot come to your house in the middle of the night, neither can uninvited police. No peering through windows. No forcible entry. No hanging around without invitation from the occupant. No repeated trips back to harass the occupant. No surveillance devices. And, the occupant must have the right to refuse to talk, and to revoke the “implied license” for the police to remain and talk whenever he chooses.

The police have a tough enough job. Fuzzy rules of procedure not only jeopardizes the peoples’ liberties, but also law enforcement safety.

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