Date: 03-14-2016

Case Style: United States v. Carloss

Case Number: 13-7082

Judge: David M. Ebel

Court: UNITED STATES COURT OF APPEALS TENTH CIRCUIT

Plaintiff's Attorney: Robert A. Ridenour, Julia L. O’Connell, Barry L. Derryberry

Defendant's Attorney: Linda A. Epperly, Mark F. Green, Kyle E. Waters

Description: Ashley Stephens, an agent with the federal Bureau of Alcohol, Tobacco and
Firearms, received several tips that Carloss, a previously convicted felon, was unlawfully
in possession of a firearm, possibly a machine gun, and was selling methamphetamine.
In order to investigate these tips, Agent Stephens, along with Tahlequah, Oklahoma
police investigator Elden Graves, went one afternoon to the home where Carloss was
staying to talk with him. The home was a single-family dwelling located in a “pretty old
area” in the “middle” of Tahlequah. (R. v.2 at 71-72.) There was no evidence of any
fence or other enclosure around the house or yard, but there were several “No
Trespassing” signs placed in the yard and on the front door. Specifically there was a “No
Trespassing” sign on an approximately three-foot-high wooden post located beside the
driveway, on the side farthest from the house, and another sign tacked to a tree in the side
yard, both stating “Private Property No Trespassing.” (Aplt. Add. Def. Ex. 2-5, 7.)
There was a sign, on a wooden pole in the front yard along the side of the driveway
closest to the house, and a sign on the front door of the house, both stating “Posted
Private Property Hunting, Fishing, Trapping or Trespassing for Any Purpose Is Strictly
Forbidden Violators Will Be Prosecuted.” (Id. Ex. 1, 6.) These signs were professionally
printed, with yellow or orange lettering against a black background. Although the
officers testified that they did not recall seeing any of these signs on the day they went to
talk to Carloss, the district court found that the signs were there on that day, and that is
not contested on appeal.
When the two officers went to the house to speak with Carloss, they drove into the
driveway, parked, walked to the front door, and knocked “for several minutes.” (R. v.2 at
74.) In response to their knocks, the officers could hear movement inside the house, but
no one answered the front door. Instead, “a short time later,” Heather Wilson exited the
back door of the house and met the officers in the side yard. (Id. at 17.) The officers
explained why they were there and asked who else was in the home. Wilson responded
that Carloss, Earnest Dry, and Katy Homberger were inside.
At about that time, Carloss exited the back door of the house and joined the

4
officers and Wilson in the side yard. At no time did either Wilson or Carloss point out
the “No Trespassing” signs to the officers or ask the officers to leave. The officers told
Carloss that they suspected he had a machine gun. Carloss responded that he could not
be around “ammunition” because of his prior criminal conviction. (Id. at 18.) The
officers then asked who lived in the house; Carloss responded that he had a room there,
but Earnest Dry owned the house. (Earnest Dry’s mother, Diana Fishinghawk, was the
actual owner.) When the officers asked Carloss if they could search the home, Carloss
told them he would have to get “the man of the house,” referring to Dry. (Id.) As
Carloss started to go inside, apparently to get Dry, the officers asked if they could go in
with Carloss; he said, “sure.”1 (Id. at 19.)
Carloss and the officers entered the back door, went through a storage or “mud”
room into a room that Carloss identified as his. (Id. at 34.) In Carloss’s room, the
officers saw drug paraphernalia and a white powder residue that appeared to be
methamphetamine.
The officers waited with Carloss in his room; Dry and Homberger soon entered.
The officers identified themselves, explained to Dry why they were there and asked if
they could search the house. Dry asked if they had a warrant; they did not. After calling
his attorney, Dry declined to let the officers search the house and instead asked them to
leave. They did so but, based on the drug paraphernalia the officers saw in Carloss’s
1 At the suppression hearing, Carloss gave a different version of these events, but the district court found that the officers’ testimony was more credible than Carloss’s. On appeal, Carloss does not challenge that credibility determination.

5
room, they obtained a warrant to return and search the house. During the search pursuant
to that warrant, officers found “multiple methamphetamine labs” and lab components, a
loaded shotgun, two blasting caps, ammunition, and other drug paraphernalia. (R. v.3
(sealed) Doc. 80 ¶¶ 15-19.)
Based on this evidence, the United States prosecuted both Carloss and Dry for
drug and weapons offenses. After unsuccessfully moving to suppress the evidence found
in the house, Carloss pled guilty to conspiring to possess pseudoephedrine; the district
court sentenced him to forty-nine months in prison and three years’ supervised release.
His conditional guilty plea permitted this appeal to challenge the denial of his
suppression motion.
STANDARD OF REVIEW
In reviewing the district court’s decision to deny Carloss’s suppression motion,
“we view the evidence in the light most favorable to the government, accept the district
court’s findings of fact unless they are clearly erroneous, and review de novo the ultimate
question of [the] reasonableness [of the officers’ actions] under the Fourth Amendment.”
United States v. Pettit, 785 F.3d 1374, 1378-79 (10th Cir. 2015), cert. denied, 2015 WL
5050544 (U.S. Oct. 5, 2015).
DISCUSSION
I. The officers did not violate the Fourth Amendment by going to the front door and knocking, seeking to speak with Carloss
The Fourth Amendment provides that “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,

6
shall not be violated.” U.S. Const., amend. IV. “[H]ouses,” for Fourth Amendment
purposes, include a home’s curtilage, and a home’s “front porch is the classic exemplar”
of curtilage. Florida v. Jardines, 133 S. Ct. 1409, 1415 (2013). Carloss contends that the
search of his home pursuant to the warrant was illegal because the officers got the
warrant based on information that they obtained in violation of the Fourth Amendment
when they trespassed onto the curtilage of his home—the front porch—to knock on the
front door, seeking to speak with him.2
A. The Tenth Circuit has upheld an officer’s knocking on the front door seeking to speak with a home’s occupants
This court has held, prior to Jardines, that police officers do not violate the Fourth
Amendment by going to the front door of a home and knocking, seeking to speak with
the occupants. Specifically addressing an investigative knock-and-talk—during which
police officers knock on the door of a home seeking to speak with the occupants, see
United States v. Carter, 360 F.3d 1235, 1238 (10th Cir. 2004)—this court has held that,
“[a]s commonly understood, a ‘knock and talk’ is a consensual encounter and therefore
does not contravene the Fourth Amendment, even absent reasonable suspicion.” United
States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006); see also, e.g., United
States v. Harrison, 639 F.3d 1273, 1276 n.1 (10th Cir. 2011); United States v. Parker, 594
2 The Fourth Amendment protects against the government’s 1) unprivileged trespass on property expressly protected by the Fourth Amendment—“persons, houses, papers, and effects”—for the purpose of conducting a search or seizure; and 2) infringement of an individual’s reasonable expectation of privacy. See Jardines, 133 S. Ct. at 1414, 1417; see also United States v. Jones, 132 S. Ct. 945, 949-53 (2012). Carloss expressly bases his argument solely on the trespass theory of Fourth Amendment protections and we, therefore, confine our analysis to that theory.

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F.3d 1243, 1244 n.1 (10th Cir. 2010); cf. Florida v. Royer, 460 U.S. 491, 497 (1983)
(plurality) (“[L]aw enforcement officers do not violate the Fourth Amendment by merely
approaching an individual on the street or in another public place, by asking him if he is
willing to answer some questions, by putting questions to him if the person is willing to
listen, or by offering in evidence in a criminal prosecution his voluntary answers to such
questions.”). See generally Kentucky v. King, 563 U.S. 452, 131 S. Ct. 1849, 1862
(2011) (“W]hen law enforcement officers who are not armed with a warrant knock on a
door, they do no more than any citizen might do.”).
The home’s occupant remains free to terminate the conversation or even to avoid
it altogether by not opening the door. See King, 133 S. Ct. at 1862 (“[W]hether the
person who knocks on the door and requests the opportunity to speak is a police officer or
a private citizen, the occupant has no obligation to open the door or to speak.”).
B. Jardines did not change our prior law upholding knock-and-talks
The Supreme Court recently reaffirmed the validity of police knock-and-talk
encounters in Jardines, 133 S. Ct. 1409. Jardines expressly recognizes that a police
officer, like any member of the public, has an implied license to enter a home’s curtilage
to knock on the front door, seeking to speak with the home’s occupants. See id. at 1416.
1. Jardines did not involve a knock-and-talk
In Jardines, officers approached the front door of a home, not seeking a consensual
knock-and-talk, but instead specifically to conduct a search from the porch. The officers
took a drug-sniffing dog onto Jardines’s front porch in order to gather information about
what was occurring inside the home. Id. at 1413, 1416-18; cf. Kyllo v. United States, 533

8
U.S. 27, 29, 35 n.2, 40 (2001) (holding that an officer’s use of a thermal-imaging device
from a public street to detect relative amounts of heat inside the home was a search). The
Jardines Court held that the license to approach a home and knock on the front door does
not extend to permitting an officer to perform a search of the interior of the house from
the porch with the enhanced sensory ability of a trained dog. 133 S. Ct. at 1416 (stating
that, for a home’s occupant “[t]o find a visitor knocking on the door is routine (even if
sometimes unwelcome); to spot that same visitor exploring the front path with a metal
detector, or marching his bloodhound into the garden before saying hello and asking
permission, would inspire most of us to—well, call the police”); see also id. at 1416-17 &
1416 n.4. In reaching that conclusion, however, Jardines reiterated that a knock-and-talk
itself is not a search for Fourth Amendment purposes: “[I]t is not a Fourth Amendment
search to approach the home in order to speak with the occupant, because all are invited
to do that. The mere purpose of discovering information in the course of engaging in that
permitted conduct does not cause it to violate the Fourth Amendment.” Id. at 1416 n.4
(citation, internal quotation marks omitted)). The Jardines dissenters agreed with this
part of the analysis. Id. at 1423 (Alito, J., dissenting) (“[P]olice officers do not engage in
a search when they approach the front door of a residence and seek to engage in what is
termed a ‘knock and talk,’ i.e., knocking on the door and seeking to speak to an occupant
for the purpose of gathering evidence.”) (internal quotation marks omitted). Thus,
Jardines left our preexisting knock-and-talk precedent undisturbed.
2. In this case, the officers did not conduct a search when they went onto the front porch to knock on Carloss’s front door

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This case is distinguishable from Jardines because there is nothing in this record to
suggest that the officers conducted, or intended to conduct, a search from the front porch
when they went onto the front porch to knock on Carloss’s front door. See Jardines, 133
S. Ct. at 1414-16; see also United States v. Walker, 799 F.3d 1361, 1363-64 (11th Cir.
2015). The officers did not attempt to gather data about what was occurring inside the
house from the front porch, nor did they take with them anything that would enhance
their ability to do that, like the drug-sniffing dog in Jardines or the thermal imaging
device at issue in Kyllo. Here, the officers simply went to the front door and knocked,
seeking to speak consensually with Carloss. Nor did the officers discover any
incriminating evidence while they were on the front porch knocking.3
C. Post-Jardines cases make clear that Jardines did not restrict knock-andtalks
Since Jardines, the Tenth Circuit has continued to uphold the constitutionality of
knock-and-talks, based on the implied license recognized in Jardines that allows police
officers, like members of the public, to approach the front door of a home and knock.
See United States v. Shuck, 713 F.3d 563, 567 (10th Cir. 2013) (“A ‘knock-and-talk’ is a
3 Had the officers discovered incriminating evidence while lawfully on the front porch knocking, however, that would not violate the Fourth Amendment. See United States v. McDowell, 713 F.3d 571, 574 (10th Cir. 2013). In McDowell, a post-Jardines case, an officer, at 11:00 p.m., walked on the driveway and front walk of a home, on his way to the front door to conduct a knock-and-talk. Id. at 572. On his way to the front door, the officer smelled a strong odor of marijuana coming from the garage. Id. This court held that, “whether or not the driveway and front sidewalk were curtilage, [the officer] did not violate the Fourth Amendment by traversing them on his way to the front door. Thus, the smell of marijuana that reached him while he was in the driveway was not fruit of an unlawful search.”

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consensual encounter” that “does not contravene the Fourth Amendment.”) (internal
quotation marks omitted); see also McDowell, 713 F.3d at 574.4
D. There was an implied license here for members of the public to go onto the curtilage of Carloss’s home in order to knock on the front door
1. Jardines recognizes such an implied license
Jardines recognizes an implied license that “typically permits [a] visitor to
approach [a] home by the front path, knock promptly, wait briefly to be received, and
then (absent invitation to linger longer), leave.” 133 S. Ct. at 1416. On this basis, “a
police officer not armed with a warrant may approach a home and knock, precisely
because that is ‘no more than any private citizen might do.’” Id. (quoting King, 131
S. Ct. at 1862).
Carloss contends that neither he nor Dry gave officers a license to approach the
house and knock. But, because such “[a] license may be implied from the habits of the
country,” id. at 1415 (internal quotation marks omitted), a resident need not affirmatively
grant the license. See generally James W. Ely, Jr. and Jon W. Bruce, The Law of
Easements and Licenses in Land, § 11.2 (updated Sept. 2015) (“Licenses may . . . be
implied from the conduct of a landowner or from local custom.” (footnote omitted)).
2. The implied license at Carloss’s home had not been revoked
Carloss contends that the “No Trespassing” signs placed on and about the house
where he lived revoked the implied license that the public has to approach the house and 4 The Fourth and Eleventh Circuits have also upheld knock-and-talks after Jardines. See Walker, 799 F.3d at 1363 (11th Cir.); Covey v. Assessor of Ohio Cnty., 777 F.3d 186, 192-93 (4th Cir. 2015). There does not appear to be any circuit that has concluded, after Jardines, that a knock-and-talk is invalid.

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knock on the front door. Whether that is so depends on the context in which a member of
the public, or an officer seeking to conduct a knock-and-talk, encountered the signs and
the message that those signs would have conveyed to an objective officer, or member of
the public, under the circumstances.5 See State v. Christensen, No. W2014-00931-CCA
R3-CD, 2015 WL 2330185, at *8 (Tenn. Crim. App. May 14, 2015) (unpublished)
(holding that “the emerging rule appears to be that the implied invitation of the front door
can be revoked but that the revocation must be obvious to the casual visitor who wishes
only to contact the residents of a property”), appeal granted, (Tenn. Sept. 22, 2015); cf.
State v. Hiebert, 329 P.3d 1085, 1090 (Idaho Ct. App. 2014) (holding, in case involving
police entering a combined business (junk yard) and residence, that, although the
defendant’s father, who resided there, “testified that the back of the junk yard is closed to
the public and that people are supposed to stop at the shop, the [relevant] question is what
an ordinary visitor to the business property, not knowing the subjective intent of the
owner, would have objectively perceived as reasonable conduct”). We conclude that,
under the circumstances presented here, the “No Trespassing” signs placed about
5 In this case, the property owner, Diana Fishinghawk, testified that her daughter put up the “No Trespassing” signs at the home in which Carloss lived seven years earlier, when the daughter lived in the house, because she was having trouble with “drunks” from a nearby bar wandering onto the property (R. v.2 at 103); Fishinghawk advised her daughter that the “No Trespassing” signs would assist the police in removing the drunks from the property. According to Fishinghawk, the “No Trespassing” signs were not intended to keep police officers from investigating crimes or providing assistance. Nevertheless, the relevant inquiry here, in determining whether the signs revoked the officers’ implied license to approach the house and knock, has to be measured, not by what the resident subjectively intended, but instead by what an objective officer would have perceived.

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Carloss’s home would not have conveyed to an objective officer that he could not go to
the front door and knock, seeking to speak consensually with Carloss.
As an initial matter, just the presence of a “No Trespassing” sign is not alone
sufficient to convey to an objective officer, or member of the public, that he cannot go to
the front door and knock. Such signs, by themselves, do not have the talismanic quality
Carloss attributes to them. See Davis v. City of Milwaukee, No. 13-CV-982-JPS, 2015
WL 5010459, at *13 (E.D. Wis. Aug. 21, 2015) (indicating, post-Jardines, that “signs
stating ‘Private Property’ or ‘No Trespassing’ do not, by themselves, create an
impenetrable privacy zone”); United States v. Jones, No. 4:13CR00011-003, 2013 WL
4678229, at *5 (W.D. Va. Aug. 30, 2013) (stating, post-Jardines, that “No Trespassing”
“signs do not, in and of themselves, create a right to privacy or automatically place an
area under the Fourth Amendment’s protections”); see also City of Beatrice v. Meints,
856 N.W.2d 410, 421 (Neb. 2014) (holding, post-Jardines, that a resident “could not
reasonably expect that tacking a ‘no trespassing’ sign to a tree would prevent others from
viewing or walking on his land”), cert. denied, 135 S. Ct. 2388 (2015); Christensen, 2015
WL 2330185, at *6-*8 (Tenn. Crim. App.) (rejecting, post-Jardines, a bright-line rule that
a “No Trespassing” sign revokes the implied license to approach a front door to conduct
knock-and-talk). Carloss has not cited, nor can we find, any post-Jardines authority
holding that a resident can revoke the implied license to approach his home and knock on
the front door simply by posting a “No Trespassing” sign.
Here, with the exception of the sign on the front door, the “No Trespassing” signs
were placed in the unenclosed front and side yards and along the driveway of the house

13
where Carloss lived. Because Carloss does not expressly claim that these areas were part
of the home’s curtilage—and it was Carloss’s burden to establish what was included in
the home’s curtilage, see United States v. Cavely, 318 F.3d 987, 994 (10th Cir. 2003)—
these areas were instead “open fields.” See Reeves v. Churchich, 484 F.3d 1244, 1255
(10th Cir. 2007) (holding, where there was no evidence that a front yard was enclosed,
used for intimate activities of the home, or in any way protected from observation, that
front yard was not part of the home’s curtilage but was instead an open field); see also
United States v. Cousins, 455 F.3d 1116, 1122-24 (10th Cir. 2006) (holding side yard
was not curtilage).
Those signs would not have conveyed to an objective officer, or member of the
public, that he could not walk up to the porch and knock on the front door and attempt to
contact the occupants. It is well-established that “No Trespassing” signs will not prevent
an officer from entering privately owned “open fields.” See Jardines, 133 S. Ct. at 1414;
Oliver v. United States, 466 U.S. 170, 182-83 (1984); see also Rieck v. Jensen, 651 F.3d
1188, 1189, 1191-94 (10th Cir. 2011) (holding that a deputy sheriff’s entry onto private
property that was not curtilage, by opening a closed gate with a “No Trespassing” sign
and despite homeowner telling deputy he had no right to enter, did not violate the Fourth
Amendment). That is true even though the officers’ entry into the yard might be
considered a trespass at common law, see Oliver, 466 U.S. at 183-84 (“[I]n the case of
open fields, the general rights of property protected by the common law of trespass have
little or no relevance to the applicability of the Fourth Amendment.”); Rieck, 651 F.3d at
1191 (10th Cir.) (stating that “the Supreme Court has made it clear that the Fourth

14
Amendment does not track property law,” citing Oliver and United States v. Dunn, 480
U.S. 294 (1987)); or might have violated Oklahoma statutory law, see United States v.
Hatfield, 333 F.3d 1189, 1198-99 (10th Cir. 2003) (holding officers did not violate the
Fourth Amendment when they made observations from a defendant’s open field, even
though the officers, in entering the open field, violated Okla. Stat. tit. 21, § 1835).6
There was also a sign on the front door itself stating: “Posted Private Property
Hunting, Fishing, Trapping or Trespassing for Any Purpose Is Strictly Forbidden
Violators Will Be Prosecuted.” (Aplt. Add. Def. Ex. 1.) But that sign was ambiguous
and did not clearly revoke the implied license extended to members of the public,
including police officers, to enter the home’s curtilage and knock on the front door,
6 See generally Virginia v. Moore, 553 U.S. 164, 166, 176, 178 (2008) (holding that an arrest was reasonable under the Fourth Amendment even though it violated state law, and stating that “linking Fourth Amendment protections to state law would cause them to vary from place to place and from time to time” (internal quotation marks omitted)); California v. Greenwood, 486 U.S. 35, 43 (1988) (“We have never intimated . . . that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs. We have emphasized instead that the Fourth Amendment analysis must turn on factors such as our societal understanding that certain areas deserve the most scrupulous protection from government invasion.” (internal quotation marks omitted)); United States v. Jones, 701 F.3d 1300, 1309-10 (10th Cir. 2012) (stating that, under facts presented there, the question of whether Missouri officers were acting without authority under Kansas state law was “irrelevant” to the question of whether they violated the Fourth Amendment, that “officers’ violation of state law is not, without more, necessarily a federal constitutional violation,” and that, “[w]hile compliance with state law may be relevant to our Fourth Amendment reasonableness analysis in some circumstances, we have never held it to be determinative of the constitutionality of police conduct” (internal quotation marks omitted)); United States v. Madden, 682 F.3d 920, 927 (10th Cir. 2012) (“Whether an arrest, search, or seizure may have violated state law is irrelevant as long as the standards developed under the Federal Constitution were not offended.” (internal quotation marks omitted)).

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seeking to speak consensually with the occupants. The sign on the front door of
Carloss’s home referenced activities that ordinarily do not take place within a home or its
curtilage—hunting, fishing, and trapping. Thus, on its face, this sign does not appear to
be directed to people who desire to approach and speak directly with the occupants of the
home in the ordinary course of societally accepted discourse. When considered in light
of the other, similar “No Trespassing” signs in Carloss’s yard, this front door sign could
have simply been reiterating that such recreational activities would not be allowed on the
property generally. See Christensen, 2015 WL 2330185, at *8 (Tenn. Crim. App.)
(stating that a “sign reading ‘no trespassing[,] hunting[,] or fishing,’ posted in a field next
to appellant’s driveway . . . would not have prevented the casual visitor or the reasonably
respectful citizen from approaching appellant’s residence”; citing cases indicating that
“such a sign, especially on a rural property, is generally intended to prevent people from
unauthorized use of the property, not to prevent a casual visitor from approaching the
residence”). The message here does not clearly and unambiguously tell the mail carrier,
pizza deliverer, or police officer that they cannot knock on the front door seeking a
consensual conversation with those who live there. See Jones, 2013 WL 4678229, at *1
*2, *5-*6 (W.D. Va.) (holding, post-Jardines, that officers did not violate the Fourth
Amendment by entering rural property, driving past “No Trespassing” signs on either
side of the driveway, passing another sign on their way to the house and another affixed
to the house, and walking past a “No Trespassing” sign hanging to the right of the front
door in order to conduct a knock-and-talk). We conclude that, under the circumstances
presented here, an objective officer would not have understood that the implied license he

16
would ordinarily have to approach the porch and knock on the front door of a home had
been revoked at this house. Therefore, the officers did not violate the Fourth Amendment
when they went onto the porch and knocked on the front door of the house in which
Carloss lived. See United States v. Bearden, 780 F.3d 887, 890-91, 893-94 (8th Cir.
2015) (holding that officers did not violate the Fourth Amendment by driving through an
open gate with a “No Trespassing” sign on their way to entering a home’s curtilage in
order to conduct a knock-and-talk); United States v. Lubrin, No. CR-2014-0056, 2015
WL 361796, at *2, *5-*6 & *5 n.6, *6 n.7 (D. V.I. Jan. 28, 2015) (holding that officers
did not violate the Fourth Amendment by entering a home’s curtilage through a gate in a
fence, to conduct knock-and-talk, despite a “No Trespassing” sign on the fence, but not
near gate); Hiebert, 329 P.3d at 1089 n.2, 1090 (Idaho Ct. App.) (holding that “No
Trespassing” signs located in curtilage “cannot reasonably be interpreted to exclude
normal, legitimate inquiries or visits by ordinary individuals, including police officers,
who restrict their movements to the areas normally used by a reasonable visitor”); Pache
v. State, 413 S.W.3d 509, 511-12 (Tex. App. 2013) (holding the officers could enter
curtilage and go to front door and knock, notwithstanding testimony that there was a “No
Trespassing” sign at the gate through which the officers entered front yard); see also
Covey v. Assessor of Ohio County, 777 F.3d 186, 190, 192-94 (4th Cir. 2015)
(suggesting that police officers conducting knock-and-talk at a “privately set home in [a]
rural village” did not violate the Fourth Amendment by driving past two “No
Trespassing” signs posted along driveway); Holloran v. Duncan, 92 F. Supp. 3d 774,
783-84, 787-88 (W.D. Tenn. 2015) (holding that officers did not violate the Fourth

17
Amendment by entering onto “farm property” by removing locked gate and driving past
“No Trespassing” signs); United States v. Denim, No. 2:13-CR-63, 2013 WL 4591469, at
*1-*6 (E.D. Tenn. Aug. 28, 2013) (holding, without discussing what areas of the home
were curtilage, that placing six “No Trespassing” signs along a driveway leading to a
home did not revoke the implied license to approach home and knock, seeking to talk
with occupants).
E. The officers did not exceed the scope of the implied license by knocking too long Carloss further argues that the officers exceeded the scope of their implied license
because they knocked at his front door too long. We cannot agree. The implied license
Jardines recognized “typically permits the visitor to approach the home by the front path,
knock promptly, wait briefly to be received, and then (absent invitation to linger longer)
leave.” 133 S. Ct. at 1415. We decline to place a specific time limit on how long a
person can knock before exceeding the scope of this implied license. Here, the officers
testified that they knocked “for several” minutes or “a minute or two.” (R. v. 2 at 26, 74.)
The officers were no doubt encouraged to remain a bit longer, hoping someone would
respond to their knock, because they heard movement inside the house and received no
request from inside the house to depart. In fact, Heather Wilson emerged from the back
door of the house only “a short while later,” or “a minute or so later,” and met the officers
in the side yard. (Id. at 17, 63.) There is no suggestion that the officers knocked
aggressively or demanded entry. Under these circumstances, we cannot say that the
officers exceeded the implied license they had to approach the house and knock, seeking

18
to speak with the occupants.
II. The district court did not clearly err in finding that Carloss voluntarily consented to the officers accompanying him into the home
Finally, the district court did not clearly err in finding that Carloss voluntarily
consented to the officers following him into the house. See United States v. Thompson,
524 F.3d 1126, 1133 (10th Cir. 2008) (holding “[v]oluntariness is a factual finding”
reviewed for clear error); see also Jones, 701 F.3d at 1318 (10th Cir.) (setting forth
factors to consider in deciding whether consent was voluntary); United States v. Benard,
680 F.3d 1206, 1211 (10th Cir. 2012) (same).
Carloss first argues that his consent was the product of a Fourth Amendment
violation—the officers’ unlicensed knocking on the front door. But we have concluded
there was no such Fourth Amendment violation.
Carloss further asserts that his consent that the officers enter the house was
involuntary because there was testimony suggesting that the officers conveyed to him,
before he consented, that they would not let him enter the home without them; and that,
because Carloss told the officers he could not consent to the search of the house, the
officers should not have believed that Carloss could consent to their accompanying them
into the home. However, the district court found that Carloss voluntarily consented to the
officers accompanying him into the house, and that finding was not clearly erroneous.
There were only two officers, dressed in plainclothes. They never drew their
weapons. There was no evidence that the officers physically touched or mistreated
Carloss, nor that they got Carloss to let them enter the house using threats or promises.

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The officers spoke in a casual, rather than an aggressive, manner, never demanding entry
into the house or otherwise claiming any lawful authority to be admitted. They did not
retain any of Carloss’s personal effects and there is no suggestion that Carloss had any
physical or mental deficits that the officers exploited. Carloss’s conversation with the
officers occurred in the side yard, in public view during daylight hours. See Benard, 680
F.3d at 1211 (considering, in determining whether consent was voluntary, fact that
interaction between officer and individual occurred in public place during daylight).
Furthermore, although the officers did not inform Carloss that he could refuse their
request to accompany him into the house (which is not a prerequisite for voluntary
consent, see Schneckloth v. Bustamonte, 412 U.S. 218, 231-33 (1973)), Carloss was
aware he could refuse the officers’ request because he had just declined to give them
broader general consent to search the house, indicating instead that the officers would
have to ask Dry for permission to do that.

Outcome: For these reasons, the district court’s finding that Carloss voluntarily consented to the officers accompanying him into the house was
not clearly erroneous. For the foregoing reasons, we AFFIRM the district court’s decision to deny Carloss’s suppression motion.

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