Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A roadside chat built around a Wisconsin case that settled for $760,000. Officers knocked on a woman’s door for about thirty minutes intending to arrest her, then forced entry on a community caretaking theory after a neighbor said she had taken a sleeping pill. Anthony walks the doctrines step by step, in order.
Hello everyone. I want to talk about a video that quite frankly reminds me why I exist, why I have chosen the profession that I have chosen. This video is out of Wisconsin involving officers that just do not do the legal right thing. They don’t understand the rules of engagement clearly, and it’s going to end up costing the taxpayers close to a million dollars. It could have been all avoided if they knew the rules of engagement, or attended a Blue to Gold class.
My name is Anthony Bandiero. I’m an attorney and senior legal instructor for Blue to Gold.
So just to kind of tee this up, here’s what we have. This video is a little old, from 2020, but we just learned that the settlement occurred recently. There are some protesters in this neighborhood and they allegedly upset this woman, who I think is trying to sleep. That’s what I kind of glean from this case. So she comes out of her house and she pushes a 17-year-old kid, and I also believe she spit in the kid’s face.
Now this could be a felony in some states, right, bodily fluids and so forth. I understand that. But let’s just kind of keep the doctrines in mind here. We’re going to go step by step: what doctrines the officers are dealing with, and how do they get to where they’re at.
Did the officers have probable cause to arrest in the first place?
So far so good. We have a call for service. We have a, you know, semi-serious case. I mean if somebody spit on you, you wouldn’t be too happy about it.
We also have probable cause for her arrest, because this witness actually has the conversation between him and her. He says that you spit on a 17-year-old kid, and she doesn’t deny it. So right now we have probable cause for a battery. Where I come from this is not an assault, this is actually a battery. An assault is where you threaten a battery where I come from. A battery is when you actually put hands on people. But I’ve heard some states call it an assault. Regardless, we have that. We also likely have at least PC for the spitting part. I’m sure the victim is there too, we corroborate that, and we’re good to go.
So now the next move is, let’s go do a knock and talk.
What is a knock and talk actually for?
The officers pounded on her door for about 30 minutes, making it clear to each other that they were there to arrest her. No mention of obtaining a warrant.
Okay, that’s going to be our first problem. This is going to be the first indication that these officers do not know the rules of engagement. If they would have attended our advanced search and seizure class, we talk about this very issue.
The first thing is, what is a knock and talk? A knock and talk is essentially a consensual encounter. It’s no different legally than going up to a person on the street and saying, as a police officer, hello sir, ma’am, can I talk to you. If they say no, fine, unless you have reasonable suspicion. If they say yes, fine, we talk to them, engage them in a consensual manner.
The problem though is that it gets a little tricky when you’re dealing with homes. Generally state courts will allow you to approach a door at a reasonable hour, knock briefly, wait to be received, and if unanswered, leave. Because if it’s unanswered after you’ve knocked, then that’s an indication that either A, they don’t want to talk to you, or B, they’re not there to receive you. So you have to leave.
Why does standing on the curtilage change the rules?
Because when you are on curtilage, that’s another issue going on here. When you’re on curtilage you have to mind your p’s and q’s, your pints and quarts. In other words, when you’re on curtilage, in many ways it’s almost like you’re inside their home. Not exactly, but it is protected like the home itself.
So what gives you the right, the authority, to actually go onto a person’s curtilage? It’s called an implied license. An implied license is where you reasonably believe that the person would be receptive to an uninvited guest. You are an uninvited guest. They did not invite you. They did not call you and say, police officer, come over to my house. But you’re also a guest, meaning that you have a reason to believe that they would want to talk to you.
And so far so good. There’s no reason to believe that they wouldn’t want to clear this matter up. Maybe it wasn’t them. Maybe they want to submit to the arrest and get it over with, or give their side of the story. Maybe they felt insulted. Whatever it is, we have an implied license to go up to the house, knock briefly, wait to be received, and if unanswered, leave.
But they didn’t do that.
Can you go up to the door if your only plan is to arrest them?
Two problems here. Number one, they’re going there solely to arrest her. You’ve got to be careful with that. You’ve got to be careful with basically being very, I mean, you know, just boldly saying we’re going to that house and knock on that door to arrest them. Well, if you’re going there to arrest them, is that an implied license to arrest them? Do you think that they want to be arrested in their home?
I mean, the implied license is there to go have a consensual encounter. In other words, you cannot do things that are outside that implied license. So that’s our first problem. And there is a good case out of the Ninth Circuit, you can take it for what you want, where the court said that you don’t have a right to just go up there to people’s curtilage and arrest them unless you have exigent circumstances. That’s what we teach at Blue to Gold.
But even regardless of that issue, which can be a little debatable, they were allegedly at that person’s door for a half an hour. That is going to contradict what the Supreme Court has said about knock and talks, which is that the knock and talk is only for the purpose of trying to contact them, and if they don’t answer you’ve got to leave. So that’s my other issue.
Is a neighbor saying someone took a sleeping pill an emergency?
Then a neighbor tells one officer that she took a sleeping pill 12 hours earlier, and probably another couple of doses because she couldn’t get to sleep. Police decide they’re going to break into the locked home to do a welfare check.
Now this is where you say to yourself, what the heck are these officers doing here. And yes, I’m cursing on purpose. There is no excuse for this. Zero. I’m very sympathetic to officers making mistakes, but what’s going on here is inexcusable.
You have officers saying, allegedly based on what we see here, and they paid out money on this so it seems about right unless you show me something else, you have officers saying hey, she’s taking sleeping pills, she’s not answering the door, therefore she must be in some kind of medical emergency.
That is BS. People in this country, unfortunately, are doped up every single day. If your criteria for community caretaking, which we’re going to talk about in a second, or some kind of emergency, is that people are taking pills and they’re dead asleep, well then everybody’s getting the door kicked in, because this country is addicted to prescription pills.
Does community caretaking apply to homes at all anymore?
But the other issue is that community caretaking is a doctrine that used to apply to homes until the Supreme Court said that it doesn’t, in a case called Caniglia v. Strom. And that’s where I’m going to give these officers a little slack here.
But the problem in Caniglia is the court said that community caretaking doesn’t apply because you need exigency. It’s not community caretaking, it’s the emergency aid doctrine. In other words, do these officers have an objective reason to believe that somebody in that house needs or wants immediate medical attention, or civil commitment, and so forth.
But even then, guys, even if you’re operating off the old standard of community caretaking, we’re just here to help, this is not going to work. We do not kick people’s doors in just because a neighbor said they took a sleeping pill 12 hours prior and they’re likely sleeping. It doesn’t work. There is no objective reason to believe that this person is in some kind of medical distress.
This is inexcusable. Somebody on scene should have said, hey look, before you boot that door with your government shoe, you need a time out for a second. I understand that this person needs to face justice, but there is no exigency at all.
What did the mistake actually cost?
She settled this case for $760,000, one of the largest settlements in Wisconsin history not involving an OIS. So it’s pretty serious.
And the thing is, look, I’m not trying to be hard on these officers. What I’m trying to be hard on is, you’ve got to know the rules of engagement. And you’ve also got to be able to, did not one officer on scene, even in 2020, think to themselves, you know what, maybe this is not right, kicking in her door based on these facts? The thin veil of justification of she could be dying in there because she took a sleeping pill and she’s not answering the door. I mean, come on. Do you really feel good about that one? Are you going to be kicking in doors every time somebody takes a sleeping pill 12 hours prior and doesn’t answer the door for you?
Why does it matter if it feels like the right outcome?
Now at the same time, a lot of these cases, it feels good. It does feel good to get your bad guy, and certainly I don’t defend her actions on spitting on somebody. It feels good to kind of get in there and be like, you know what, I’ve been knocking on the door for a half an hour, you’re under arrest. It feels good, and then everybody’s clapping and everybody supports the police.
But at the end of the day this is going to just cause tremendous litigation. And if it would have resulted in an OIS, if this sleeping attorney would have come downstairs with a gun because she heard a bump in the night type deal, and she would have been popped by the police, how many commas would that have added to the check?
The point is guys, it’s another reminder to slow your roll. Know what the law is. Know when you should force your way into a home versus when you should slow roll it and get that judge on the phone and say, your honor, I need your permission to go get a bad guy and wake them up from their slumber.
And don’t stretch the rules on things like here, which I really do believe, if you would have talked to them personally, they probably would have been a little bit more frank about, yeah, you know, she’s probably not dying in there, but we just want to make sure she’s okay type of logic, in order to get access to her.
The short version
- We have a knock and talk violation, because they knocked on that door for 30 minutes. That’s not a knock and talk.
- Going to the door with the intent to arrest is also problematic. The implied license is there to go have a consensual encounter.
- A knock and talk is essentially a consensual encounter. Approach at a reasonable hour, knock briefly, wait to be received, and if unanswered, leave.
- When you’re on curtilage you have to mind your p’s and q’s. It is protected like the home itself.
- We have a community caretaking violation, because community caretaking does not apply to homes. You need exigency, and there is no exigency here.
- PC is not exigency.
- A neighbor saying someone took a sleeping pill 12 hours prior is not an objective reason to believe they are in medical distress.
- Before you boot that door with your government shoe, you need a time out for a second.
And that is why I love my job. Not because I like seeing officers fail. I do not, I hate it. I love officers winning and doing the right thing, and I’m trying to get ahead of these issues. I just wish that maybe if these officers would have attended my class they would have not done this, and would have saved themselves a little heartache.
Sometimes when I think about what I do out there, it’s hard to measure, because I’m trying to prevent things. How many of these situations have I prevented? I don’t know. Well, I do know I’ve prevented a few, because I’ve talked to officers who said, hey Anthony, I was going to go into that house, but after your class I decided not to. And I said to them, it’s good that you didn’t, because it would have been problematic if you would have went in.
But the point is guys, slow it down, think about this. I know these officers, I’ve made my mistakes too. This one is a little egregious in my view. It should have never happened.
Related from Blue to Gold
- Major Case!!! Caniglia v. Strom – Community Caretaking and Red Flag Laws
- Can Police Conduct Knock and Talks at Odd Hours of the Night?
- Being Told to Leave During a Knock and Talk
This article is an edited transcript of Roadside Chat Ep. #780. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
