THE CASE OF
Annotate this Case
Download PDF
RENDERED : OCTOBER 23, 2008
PUBLISHED
uyrrmr (~Vurf
of
2006-SC-000629-DG
rf
It
I/ \\
ERIC QUINTANA
V.
i
_
X
311 q a'9 _L41Aq XD-C
APPELLANT
ON REVIEW FROM COURT OF APPEALS
NO. 2005-CA-000341
NELSON CIRCUIT COURT NO. 01-CR-00204
COMMONWEALTH OF KENTUCKY
AND
APPELLEE
2006-SC-000823-DG
BRIAN BOTTOM ;
AND MELISSA BOTTOM
V.
E t
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
NOS. 2004-CA-002480, 2004-CA-002488
AND 2004-CA-002489
RUSSELL CIRCUIT COURT NOS. 04-CR-00047 AND 04-CR-00049
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
REVERSING AND REMANDING IN THE CASE OF
2006-SC-000629-DG
AND
THE CASE OF 2006-SC-000823-DG
AFFIRMING IN
These two cases were argued before the Court on the same day, and involve the
propriety and limits of the police procedure commonly called the "knock and talk," where
officers approach a residence, knock on the door, and talk to a person who answers,
ostensibly to obtain general information that could assist in an ongoing investigation or
matter of public interest. The Appellants in both cases were convicted of drug offenses
based on evidence obtained from use of the knock and talk procedure, and the Court of
Appeals affirmed their convictions . This Court granted discretionary review to address
the parameters of that procedure . We hold that the knock and talk procedure is a
proper police procedure and may be used to investigate the resident of the property,
provided the officer goes only where he has a legal right to be.
I. Background
A. Eric Quintana
The Greater Hardin County Narcotics Task Force was informed by a state
trooper that he had received an anonymous tip from an informant who claimed his son
had purchased marijuana from a man named "Eric ." This did not afford sufficient
evidence to obtain a search warrant, but a local officer, Detective Knochel, decided to
conduct a knock and talk at Appellant Eric Quintana's residence based on the call.
Detective Knochel, a state trooper, and a Task Force officer arrived at the residence
and knocked on the front door, which was located on a converted garage . No one
answered the door, so the state trooper went to the back yard, allegedly looking for a
back door, but walked some thirty to forty feet across the back of the house to a window
at the far end of the house where an air conditioner unit was located . The trooper
claimed that he could smell marijuana emanating from the air conditioner, and on this
basis a warrant was obtained . In the search of the residence, the officers found 99
small marijuana cuttings that had been started in a growing medium, five small
developed plants, one large plant, and cultivation materials . Appellant Quintana moved
the trial court to suppress all evidence obtained as a result of the search because of
inappropriate use of the knock and talk procedure. The trial court denied the motion,
and Quintana subsequently entered an Afford plea to charges of cultivating marijuana
and possession of drug paraphernalia, and was sentenced to one year in prison .
B. Brian and Melissa Bottom
A person matching the description of Appellant Melissa Bottom bought two
sixteen-ounce bottles of iodine from a local company in Adair County . The store
its
manager noted the type of car and
license plate number, which turned out to be
registered to Brian or Melissa Bottom . Since iodine is a key ingredient in the
manufacture of methamphetamine and the person appeared to be "strung out," the
store manager reported the purchase, along with a description of the buyer, her car and
her license plate number, to the Adair County sheriff, who turned the information over to
law enforcement officials in Russell County, where the Bottoms lived. State police
detective Scott Hammond and officers from the Jamestown and Russell Springs police
departments went to Brian Bottoms's residence in Jamestown (Brian and Melissa were
divorced) . No one was home, and the car described in connection with the iodine
purchase was not there. As the officers were leaving they passed a vehicle meeting the
description of the car going toward Brian's house . The officers turned back and
observed the car at Brian's residence . The license plate number matched that on the
vehicle the store manager claimed the iodine buyer had been driving .
Some two and a half hours later, the officers went back A) Brian's residence to
knock and talk about the iodine purchase. Both Bottoms answered the door, and
Melissa had iodine stains on her hands. The officers could smell chemicals from the
porch. When the officers asked Melissa about the purchase of the iodine, she said she
got it for her grandfather. When asked for his address, she changed her story and
asked not to speak with the officers any further. The officers then asked about the
iodine stains, and Melissa put her hands under her arms and shook her head . The
officers then asked Brian if anything illegal was going on, to which he replied no . They
requested consent to search the house, which Brian denied .
The officers then left and obtained a warrant based on the chemical smells and
their observations at the house. They returned and entered the residence, and found a
methamphetamine manufacturing operation, marijuana, and drug paraphernalia .
Appellants Brian and Melissa moved the trial court to suppress this evidence based on
the initial warrantless entry on the property and improper use of the knock and talk
procedure. The trial court denied the motion. Appellants Brian and Melissa Bottom
entered conditional guilty pleas to manufacturing methamphetamine, and Brian pleaded
guilty to two additional counts of tampering with a witness . Melissa was sentenced to
ten years, Brian to twelve.
II. Analysis
A. The Knock and Talk Procedure
The knock and talk procedure involves law enforcement officers approaching a
home for the purpose of obtaining information about a crime that has been committed, a
pending investigation, or matters of public welfare . This Court has not previously
decided the propriety of the knock and talk procedure, though the Court of Appeals has
approved it. See, e .g. , Perkins v. Commonwealth , 237 S .W.3d 215, 219 (Ky. App.
2007) ("We agree that there is nothing inherently unconstitutional or even inappropriate
about the use of the knock and talk technique as an investigatory tool."). Various
federal courts, including the Sixth Circuit, have also ruled that the technique does not
automatically violate the Fourth Amendment . See United States v. Thomas, 430 F.3d
274, 277 (6th Cir. 2005) (approving knock and talks and citing similar approval by the
Fifth, Seventh, and Ninth Circuits) . While the decisions of these courts do not control a
decision by this Court, they are persuasive authority. Nevertheless, given the
importance of the rights involved, an independent analyst is necessary to determine
whether this Court is in agreement .
The knock and talk procedure is a helpful and commonly used police tool, often
applied in situations as mundane as looking for a lost pet or to ask if the homeowner
has seen a suspicious person in the neighborhood .' In general, an officer knocking on
the door to ask for citizen assistance is appreciated and the citizens are cooperative .
However, that is not always the case, as some citizens desire privacy and to be left
alone to the enjoyment of their home. Controversy may arise when the officer is not
looking for assistance from the resident, but rather is using the procedure to look for
evidence of wrongdoing by the resident, and approaches the home to ask for consent to
search or to aid in spotting evidence in plain view or plain smell.
Since officers must walk onto the property and up to the house itself to reach the
door to knock, as opposed to looking from the street or a public sidewalk, the rights one
has to the cartilage of the house are relevant . Curiously, cases addressing the knock
and talk procedure fail to make this connection . E .q ., Hardesty v. Hamburg Twp. , 461
F .3d 646 (6th Cir. :2006) (addressing separately cartilage and knock and talk issues) .
The concept of cartilage began in common law, extending the same protection afforded
the inside of one's home to the area immediately surrounding the dwelling . United
States v. Dunn, 480 U .S. 294 (1987). In Oliver v. United "States , 466 U .S. 170 (1984),
1 The knock and talk procedure must be distinguished from the "knock and
announce" procedure, which occurs only after obtaining a warrant, and is specifically
intended to avoid injury to the officers or residents and unnecessary damage to private
property when officers are serving the warrant.
5
the United States Supreme Court recognized that the Fourth Amendment protects the
cartilage of a house, and the area covered extends to that which an individual may
reasonably expect to be treated as the home itself. In Dunn, the Supreme Court
established four analytical, non-exclusive factors which should be applied to solve
cartilage questions : the proximity of the area to the home, whether the area is included
in an enclosure with the home, how the area is used, and the steps the resident has
taken to prevent observation from the people passing by. Because there is no
expectation of privacy for anything that can be observed from outside the cartilage,
either by sight or other senses, the focus of a knock and talk analysis must be on the
right of access to private property within the cartilage.
The fact that the cartilage as well as the home itself is entitled to Fourth
Amendment protection and an expectation of privacy is premised on strong concepts of
intimacy, autonomy, and sanctuary that develop around home and family life, and the
fact that many related activities will occur outside the house . Dow Chemical Co. v.
United States, 749 F.2d 307 (6th Cir. 1984). One's front door is the portal to the
enjoyment of these concepts, and is a part of the house itself, thus the space
immediately in front of it obviously falls within the definition of cartilage as the area
immediately surrounding the house. However, whether Fourth Amendment protection
extends to that area is evaluated under the test in Dunn .
Since knock and talks are typically conducted at the front door, the most
important factor for Fourth Amendment analysis, given that the area in question is the
main entrance to the home, is how the area is used . As the Supreme Court pointed out
in Oliver, any expectation of privacy, even in one's cartilage, must be reasonable . 466
U .S. at 180 ("[C]ourts . . . have defined the cartilage, as did the common law, by
reference to the factors that determine whether an individual reasonably may expect
that an area immediately adjacent to the home will remain private ."). The Oliver Court,
in finding that open fields were not part of the curtilage and were thus subject to search,
determined that such areas were open to both the public and police officers, even
where fences or "No Trespassing" signs were present, but pointed out the difference
between open fields and the area immediately adjacent to one's home .
Id . at 179.
However, the main entrance to a home is so widely perceived by the public as
the point of access for the public engaged in legitimate business, whether it is by
pollsters, persons seeking assistance, postal carriers, delivery persons, or Girl Scouts
selling cookies, that it amounts to common knowledge that the public may at least go up
to a home's front door, if the way is not barred . While such members of the public are
not guaranteed access to the inside of the house, they may certainly approach the
entrance and attempt to speak with the residents. The homeowner's consent to
approach that area which would otherwise be entitled to Fourth Amendment curtilage
protection is assumed. Thus, certain areas such as driveways, walkways, or the front
door and windows of a home frequently do not carry a reasonable expectation of
privacy because they are open to plain view and are properly approachable by any
member of the public, unless obvious steps are taken to bar the public from the door.
The answer in basic knock and talk cases then is clear: the officer who
approaches the main entrance of a house has a right to be there, just as any member of
the public might have . When a resident has no reasonable expectation to privacy if
someone approaches his front door for a legitimate purpose, police officers may also so
approach. As a leading treatise on the subject has noted, the basic rule is
`that police with legitimate business may enter the areas of the curtilage
which are impliedly open to use by the public,' and in so doing they `are
7
free to keep their eyes open and use their other senses .' This means,
therefore, that if police utilize `normal means of access to and egress from
the house,' for some legitimate purpose, such as to make inquiries of the
occupant or to introduce an undercover agent into the activities occurring
there, it is not a Fourth Amendment search for the police to see or hear or
smell from that vantage point what is happening inside the dwelling .
1 Wayne R. LaFave, Search and Seizure : Looking at or Listening at the Residence §
2.3(c) (4th ed . 2007), quoted in Young v. City of Radcliff, 561 F.Supp .2d 767, 786 (W.D.
Ky. 2008). Essentially, the approach to the main entrance of a residence is properly
"invadable" curtilage, under Dunn and Oliver because it is an area that is open to the
public.
The curtilage question, however, is not the only one relevant to the knock and
talk procedure. The means employed by the police in the course of the knock and talk
procedure to obtain consent or interaction with the resident can also give rise to a
Fourth Amendment violation and must be evaluated separately . For example, this
Court has previously held that use of a coercive ruse to obtain consent to enter a
residence in the course of a knock and talk undermined the purposes inherent in
requiring consent to search absent a warrant and violated the defendant's Fourth
Amendment rights. Krause v. Commonwealth, 206 S.W.3d 922 (Ky. 2006). The Sixth
Circuit has held that a knock and talk can lead to a violation of the Fourth Amendment
when the "consensual encounter at the doorstep . . . evolve[s] into a `constructive entry'
when the police, while not entering the house, deploy overbearing tactics that
essentially force the individual out of the home ." Thomas, 430 F.3d at 277. Thus, it is
clear that any interaction between the police and the resident of a house in the course
of a knock and talk must be consensual .
The knock and talk issue becomes more complicated if an officer ventures farther
than unbarred public access areas. Several federal circuit courts have held that a
8
knock and talk may be extended to the back door of a home under certain
circumstances, for example, when knocking at the front door is unsuccessful and there
are indications that the resident is at home . See Hardest, 461 F.3d at 654 (citing
cases from Third, Fourth, Eighth, and Ninth Circuits) . A decision of our Court of
Appeals also indicates that the knock and talk procedure may extend until the officers
succeed in contacting the resident of a house . Cloar v. Commonwealth, 679 S.W.2d
827, 831 (Ky. App. 1984) ("We limit the permissible scope of this right, however, to
driveways, access roads, and as much of the property's sidewalks, pathways, and other
areas as are necessary to enable the officer to find and talk to the occupants of the
residence."). Those decisions, however, are not binding on this Court, and in light of
the preceding analysis, are not persuasive .
Whether an officer is where he has a right to be when he does the knock and talk
is defined by his limited purpose in going to the residence and the nature of the area he
has invaded . There has been no finding of probable cause sufficient to grant a warrant,
so the knock and talk is limited to only the areas which the public can reasonably expect
to access . While there is a right of access for a legitimate purpose when the way is not
barred, or when no reasonable person would believe that he or she could not enter, this
right of access is limited . The resident's expectation of privacy continues to shield the
curtilage where an outsider has no valid reason to go. Thus any part of the curtilage
may be protected, including driveways, depending on the circumstances of each case .
United States v. Smith, 783 F .2d 648 (6th Cir. 1985). The back door of a home is not
ordinarily understood to be publicly accessible, and thus could be subject to the
curtilage rules where the front door would not be. However, it is also true that
customary use of a door, such as a side or back door, as primary access which is
known by the officer, could make that door "publicly accessible" in a given case . This
highlights the importance of applying this analysis to the facts of each case .
An officer's belief that someone is home and simply not answering the door does
not change this analysis . The crux of the validity of the knock and talk procedure is that
it is a consensual encounter in a place where the officer, like the public, has a right to
be . Just as no resident is required to answer his door or respond to questions when the
general public comes calling, so it is with a police officer, regardless of whether the
failure to answer the door is intentional or the result of the resident's inability to hear the
knock. Moreover, as any member of the public can be told and required to leave the
premises, so can an officer. Unless an officer has probable cause to obtain a warrant or
exigent circumstances arise, the intrusion can go no further than the approach to the
obvious public entrance of the house. As the treatise cited above continues, "On the
other hand, if the police stray from that path to other parts of the curtilage in order to
conduct the surveillance, then the use of natural sight or hearing to detect what is inside
is a search within the meaning of the Fourth Amendment." 1 Wayne R. LaFave, Search
and Seizure: Looking at or Listening at the Residence § 2.3(c) (4th ed . 2007), quoted in
Young v. City of Radcliff, 561 F.Supp.2d 767, 786 (W.D. Ky. 2008) .
Instead of falling directly under the knock and talk rule, as the Sixth Circuit has
held, when an officer leaves the approach to the main entrance of a residence, a
separate and distinct curtilage question arises . The trial court is tasked with
determining separately whether the new area where the officer ventures is within the
protected curtilage of the home . To determine this, the four-factor analysis of Dunn
must be applied : proximity to the house, whether the area is enclosed with the house,
how the area is being used, and what the resident has done to secure his privacy . If the
10
area is determined to be within the protected curtilage, then the officer is not in a place
where he has a right to be, and any evidence thus illegally seized must be suppressed .
United States v. Jenkins, 124 F.3d 768 (6th Cir. 1997) .
B. Application to the current cases
1 . Quintana
The "plain smell" that occurred at Appellant Quintana's residence, which led to a
search of the house and discovery of the marijuana, occurred in his back yard . The
officers approached the house by walking up a driveway, and first knocking on what
appeared to be the front door in the garage addition. However, when no one answered
the door, one officer walked the remaining length of the driveway and into the back yard
to "look for a back door." Though he saw no back door, he walked thirty to forty feet
across the back yard to a window air conditioning unit on the far end of the house where
he then claimed to smell the marijuana. This identified smell led the judge to issue a
search warrant for the house.
Applying the analysis from above, when the officer moved beyond the public
entrance of the home, he went beyond the limits of a proper knock and talk. The
question then is whether Appellant Quintana's curtilage rights were violated when the
officer proceeded into his backyard .
A back yard is not normally an area that the general public would perceive as
public access. While the back yard may not always enjoy the protection of the curtilage,
it is a rare one that does not. See Daughenbaugh v. City of Tiffin, 150 F .3d 594,
601 (6th Cir. 1998) ("The backyard and area immediately surrounding the home are
really extensions of the dwelling itself. This is not true simply in a mechanical sense
because the areas are geographically proximate. It is true because people have both
actual and reasonable expectations that many of the private experiences of home life
often occur outside the house."). Under the four-factor analysis of Dunn, the back yard
in this case satisfies proximity since it was immediately in back of the house; while not
completely enclosed, home living items were in the yard ; and a concrete patio was in
the yard behind the house, as was a large gas tank which shielded part of the patio from
view. Perhaps most telling about Appellant's expectation of privacy is the presence of a
dog kennel and what appear to be other animal pens. Most importantly, the discovery
made by the officer could not have been made by sight (or smell) from an area outside
the yard ; he had to be right under the window unit to perceive the smell. In short, the
back yard was within the curtilage of the house and Appellant Quintana had a
reasonable expectation of privacy in it. The officer did not have the right to be there
absent a warrant, meaning any information he uncovered there (the "smell" of
marijuana) was improper and thereby tainted the search warrant based on it. The
evidence found as the result of the improperly obtained search warrant thus should
have been suppressed .
2. Bottoms
Appellants Brian and Melissa Bottoms, however, are not entitled to suppression .
Here, the officers did substantial investigation before going to do the knock and talk,
even though they felt they did not have probable cause to get a warrant . They received
the tip from the store manager, which they verified in part by observing the identified
vehicle parked at Brian's residence. When they did go to his residence for the knock
and talk, they properly requested his consent to search the residence, which Brian
(properly) refused. The officers properly did not force the search, but used their
observations from the knock and talk as further basis for probable cause to obtain a
search warrant. The search was then conducted pursuant to the warrant .
Most telling in the context of the curtilage analysis, the officers at all times
remained where they had a right to be in the course of a knock and talk and did not go
beyond the public access areas. As such, a separate application of the Dunn factors is
unnecessary.
111. Conclusion
For the reasons stated above, the convictions of Appellant Quintana are
reversed, and his case is remanded to the trial court for further proceedings consistent
with this opinion. The convictions of Appellants Brian and Melissa Bottom are affirmed .
All sitting . All concur.
COUNSEL FOR APPELLANT, ERIC QUINTANA:
John David Seay
108 South Third Street
Bardstown, Kentucky 40004
Jeremy Dwight Chesser
215 West Beall Street
PO Box 447
Bardstown, Kentucky 40004
COUNSEL FOR APPELLANTS, BRIAN AND MELISSA BOTTOM :
Jeffrey Hall Hoover
Hoover law office
40 South Main Street
PO Box 985
Jamestown, Kentucky 42629
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Terry Lane Geoghegan
Commonwealth Attorney
116 East Stephen Foster Avenue
Bardstown, Kentucky 40004
Bryan Darwin Morrow
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
Michael Louis Harried
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
