Being Told to Leave During a Knock and Talk

If a citizen tells a cop to leave during a knock and talk, does the cop have to leave?

This question actually comes from a citizen, a non-police officer.  I think it’s great that non-police officers are also reaching out to see if I can help them with their constitutional questions.  I want to help everybody understand the law.

A homeowner can ask a UPS driver to get off his porch or to leave the package, right?  Can a homeowner tell an officer the same thing, “Hey, get off my porch!” (during a knock and talk)? What happens if the officer has no probable cause and doesn’t leave?  Can the homeowner make a citizen’s arrest of the officer for criminal trespass?

Let’s go through this, my friends, let’s give you the law.

The law is that a knock and talk must comply with social graces.  What I mean by that is that when police do knock and talks, they don’t get any extra power beyond what the Girl Scouts would get.  That kind of throws cops off a little bit, because they’ll be there for a legitimate purpose, trying to investigate crime, and a person will say, “Leave,” and they feel like they don’t have to leave.

Well, let me tell you what the rule is.  If you are there for a knock and talk and you have nothing pressing, you have no exigency, you have no emergency, and the person is making it very clear to you that they want you gone, they want you off the property, what are you supposed to do?  Well, I’m going to tell you.  You must leave.  That is the rule.

It may not feel feel good.  It may frustrate you, that you’re out there trying to do the Lord’s work, and I understand you.  My heart is with you, but the law is pretty clear on this issue. You’ve got to leave.

There is a case where cops have actually gotten successfully sued because they violated this guy’s knock and talk rights by continuing to try to continue a knock and talk despite the fact that they knew he did not want to talk.  That’s French versus Merrill, and the cops did not get qualified immunity.

Let me address another issue.  What about probable cause?  Well, even if the officers have probable cause, but no exigency, they have to leave.  It’s just the way it is. This person is basically saying to you, “Instead of trying to handle this the warrantless way, instead of trying to work this out with you and explain my side of the story, you go get a warrant.”  That’s what they’re basically telling you to do, “Come back with judicial approval to be back on my property.  Go get some paper signed by a judge, and come back with your friends and make a forced entry if needed.”  That’s what this guy is basically telling you to do.

The other issue, though, which I have to answer is; can the homeowner make a citizen’s arrest of the officer for criminal trespass?  Absolutely not!  No way. There’s no way in any state that the court is going to allow you to put hands on an officer to arrest them for criminal trespass.  The courts won’t allow that as a public policy concern.  You can read the statute books and say, “Well, it doesn’t say that I can’t arrest an officer.”  Well, the courts are going to do a public policy judgment.  They’re going to say, “Due to public policy concerns, we are not going to uphold a citizen’s arrest of an on-duty police officer for something like this.”

The only exception where courts allow citizens to go against the police is when the cop is using some kind of unauthorized force, usually deadly force.  If you sincerely believe that you’re being suffocated, asphyxiated, and so forth, that a cop is putting a knee on your neck or something like that, clearly, you have a right to defend yourself.  And if that means pushing on the officer and using some kind of force, you’re allowed to do that, but you’d better be right.

If a person believes that they’re being unlawfully arrested, and they use force to try to not go into custody because the cop is being unlawful, or aggressive, the court will say, “Even if the arrest was unlawful, your option here is to take it to court.” That’s what we have a civil rights lawsuit for.

So going back to this, if the homeowner believes that his rights are being violated, the solution is not to try to arrest the police officer. The solution is to go get a lawyer and sue that police officer, and we go from there. That’s what the courts want you to do.

I actually think it’s a very good question, because I think a lot of cops also wonder this too. Do we have to leave if we’re told to leave? The answer is “yes,” unless you have exigency or a warrant.  Pass this along to other officers and citizens.  I’m trying to educate as many people as possible about what the law says. Hopefully this is helpful and answers the questions.