Thread by @OrinKerr

Justice Gorsuch, joined by Justices Kagan and Sotomayor, sends a message: If the police go onto curtilage, the legality of that is governed by the implied license framework of FL v. Jardines.

Quick thread.

supremecourt.gov/opinions/20pdf…

The case below is a Vermont case in which officers walked up a suspect's driveway and peered into the garage through a garage window.

vermontjudiciary.org/sites/default/…

The Vermont Supreme Court ruled that the garage was in the curtilage of the home (that is, for 4A purposes, that the area around the garage counted as the home), but that it was okay to go on it because Vermont precedents recognize a right to inspect in semi-private areas.

Justice Gorsuch notes that this Vermont caselaw ultimately predates Jardines, and that it is inconsistent with Jardines: You have to apply the framework of Jardines, not the Vermont caselaw on inspection rights in "semi-private areas."

But the Court doesn't take the case, and Gorsuch includes speculation about why he agrees with that conclusion that is interesting: It may be a stray error, and there's no indication lots of courts are getting this wrong. But courts should realize Jardines controls here.

FWIW, I agree with Gorsuch that the Vt court reasoning seems wrong, at least assuming the curtilage analysis was correct. I also appreciate the warning to state supreme courts that the U.S. Supreme Court is watching

That message would have been stronger with a summary reversal, but I suspect even a warning like this has some effect.

/end

A few more thoughts come to mind:

I'm not sure why Justice Gorsuch frames this as a knock-and-talk case, or why he says that knock and talk is "increasingly popular" and on "the rise."

This is just a minor semantic point, but I have understood the "knock and talk" to be a subset of visits to the home; an officer might knock and try to talk, or he might look around the property. Gorsuch suggests they're all knock and talks, but I would think the K&T is narrower.

That is, the "knock and talk" approved in KY v. King and Jardines is actually going to the door to knock, in order to talk. Just going to on the curtilage to poke around and see what you can find isn't a knock and talk.

Second, I'm not aware of any basis to say that K&Ts, or entries on to curtilage generally, are increasingly popular. They've always been common. If anything, the law is regulating them more strictly than it used to, see Jardines and Collins.

So I would guess these methods are happening less now than they used to, not more, as the Supreme Court is tightening the legal regulation and more closely watching what the police do than it used to. My guess, anyway.

/end, take 2

Here's one explanation: Back on the 10th Circuit, then-Judge Gorsuch described knock-and-talks as "an increasingly attractive investigative tool " for which "published cases approving knock and talks have grown legion." Carloss, 818 F.3d at 1003.

The opening of Gorsuch's statement today seems to echo much of what he wrote in 2016 in his Carloss opinion.