                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 11-1412
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                 ARTHUR R. CLAUS,
                                      Appellant
                                   _____________

                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Criminal No. 2-09-cr-00125-001)
                     District Judge: Honorable Terrence F. McVerry
                                     _____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 10, 2012

               Before: SCIRICA, RENDELL and SMITH, Circuit Judges

                           (Opinion Filed: January 17, 2012)
                                   _____________

                              OPINION OF THE COURT
                                  _____________

RENDELL, Circuit Judge.

      Defendant Arthur Claus appeals from the District Court’s denial of his motions to

suppress evidence underlying the drug charge to which he conditionally pleaded guilty.

Claus argues that the officers who conducted the initial search of his home during which

thirteen pounds of marijuana were discovered violated the Fourth Amendment by
accessing the home’s curtilage without a warrant, then entering and searching the home

pursuant to involuntarily given consent. His arguments, however, do not support

reversing the District Court’s ruling, and we will therefore affirm.

                                      I. Background

       Since we write principally for the benefit of the parties who are familiar with this

case, we recite only the essential facts and procedural history.

       On February 23, 2009, three officers approached Claus’s home to conduct a

“knock and talk” because they suspected that he was engaged in illegal drug activity. To

gain access to Claus’s two-story house, the officers had to proceed down a concrete

staircase leading to a large porch. When two dogs located on the porch began barking,

Claus’s longtime live-in partner, Karen Henderson, came outside and told the officers –

who remained on the staircase – that Claus was not home and that she did not know when

he would return. Henderson then took the dogs inside, at which point the officers opened

a gate and stepped onto the porch before she returned to the front door.

       Henderson continued to speak with the officers from the front doorway, until one

asked whether they could continue the discussion inside to prevent wind from blowing

his papers away. Henderson then allowed the officers into the house. 1 Once inside,

Henderson continued to provide answers the officers believed untruthful until eventually

admitting that Claus was in fact upstairs. Upon learning of Claus’s location in the home,

       1
          The officers testified that Henderson invited them into the house. Henderson
testified that she extended no such invitation; according to her account, the officers
simply kept walking toward the door until they were inside. We accept the District
Court’s factual determination that she allowed them into the home. Mem. Op. at 3.

                                              2
officers drew their weapons and shouted for him to come downstairs. When Claus

complied with their order by descending the staircase, the officers re-holstered their

weapons. In response to Claus’s demand to know why they were in his home, the

officers explained that Henderson had let them in to which Henderson nodded her head in

agreement.

       Claus angrily demanded that the officers leave his house and acquire a warrant if

they desired to search the premises. In response, one of the officers told Claus that it was

highly likely that a search warrant would issue, but it could take some time and the

premises would have to be secured in the interim. The officer then introduced consent as

a way to save time. The officer also stated that a search pursuant to a warrant could tear

up the home, but that if Claus instead consented the house would not be torn apart, the

dogs would not be kenneled, and Henderson would not go to jail. Eventually, Claus

consented to a search of the premises by signing a written consent form after cutting short

the officer’s attempt to read it out loud to him.

       Claus was granted permission to accompany the two officers while they searched

the premises. Henderson stayed in the home with the remaining officer. Eventually,

Henderson asked to leave and was allowed to do so. The search lasted for three hours

and resulted in the recovery of thirteen pounds of marijuana and seven large garbage bags

containing other bags used to store marijuana. Consequently, Claus was placed in

custody. The officers subsequently obtained a search warrant for his truck and trailer,

execution of which led to the discovery and seizure of incriminating documents.



                                              3
       Claus was charged with one count of possession with intent to distribute less than

fifty kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D). Claus

filed motions to suppress all evidence seized from the two searches, arguing that the

initial search of his home violated the Fourth Amendment and that the documents

obtained from the subsequent search constituted “fruit of the poisonous tree.” After

holding an evidentiary hearing, the District Court deemed voluntary both Henderson’s

consent to enter and Claus’s consent to search. 2 The District Court therefore denied

Claus’s motions to suppress.

       Claus then entered a conditional plea of guilty, specifically reserving his right to

appeal from the District Court’s decision on issues raised in his motions to suppress

evidence. The instant appeal followed.

                         II. Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

       In reviewing a district court’s denial of a motion to suppress, we apply a mixed

standard of review. Factual findings are reviewed only for clear error, while legal

determinations based upon application of law to fact are subject to plenary review. See

United States v. Shields, 458 F.3d 269, 276-77 (3d Cir. 2006).




       2
         In its memorandum opinion and order, the District Court did not address an
argument raised by Claus in a post-hearing brief it granted him permission to file:
whether the officers’ entry onto his porch violated the Fourth Amendment because it
constituted part of the home’s curtilage.
                                              4
                                      III. Discussion

       Claus presents several arguments in support of reversing the District Court’s

denial of his motions to suppress. We discuss each of these contentions in turn.

                                        a. Curtilage

       Claus first argues that, by opening a gate to access his front porch, the officers

invaded the home’s curtilage with neither a warrant, consent, nor exigent circumstances,

thereby violating the Fourth Amendment. 3 The long-accepted “knock and talk”

technique purportedly used by the officers, urges Claus, did not otherwise permit their

conduct. His argument fails.

       The protections against unreasonable searches and seizures afforded by the Fourth

Amendment extend to the curtilage of a home. United States v. Dunn, 480 U.S. 294, 300-

01 (1986). The curtilage constitutes any “area . . . so intimately tied to the home itself

that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.”

Id. at 301. For the purposes of this appeal, we assume that Claus’s front porch fits this

definition. We do so for two reasons. First, a curtilage determination is factual in nature

       3
        The Government contends that Claus waived this argument in his plea
agreement. In the agreement, Claus only reserved the ability to “take a direct appeal
from his conviction limited to the issues specifically raised in his ‘Motion to Suppress
Evidence Seized’ and ‘Supplemental Motion to Suppress Evidence.’” Supp. App. 62.
According to the Government, Claus only presented his curtilage argument in a post-
hearing brief and not in his initial motions, such that he cannot now raise it on appeal.

       We reject the Government’s waiver argument. The District Court granted Claus
permission to file supplemental briefing in support of his motions to suppress, given
testimony elicited at the evidentiary hearing. Claus did exactly that, presenting his
curtilage argument as further support for his motions to suppress. We will not now deny
him the opportunity to renew his contention on appeal based upon the rather strict
interpretation of the plea agreement urged by the Government.
                                              5
and we lack the benefit of findings by the District Court because it did not address the

issue in denying Claus’s motions. Second, the porch’s attachment to Claus’s home and

gated entryway are at least suggestive of a private area deserving of protection.

Unfortunately for Claus, though, the porch’s status as curtilage does not support a

determination that the officers’ entry violated the Fourth Amendment.

       We, like other courts, recognize a “knock and talk” exception to the warrant

requirement. See Smith v. Marasco, 318 F.3d 497, 519 (3d Cir. 2003). Pursuant to this

exception, “officers are allowed to knock on a residence’s door or otherwise approach the

residence seeking to speak to the inhabitants just as any private citizen may.” Id. That

the officers bypassed a short chain-link gate to access Claus’s porch in order to speak

with Henderson by her front door, then, did not trigger Fourth Amendment concerns

associated with warrantless, nonconsensual entries onto curtilage. Though we recognize

that the officers proceeded through the gate only after Henderson temporarily left them

unattended, their advance did not thereby become unlawful. Henderson’s sequestration

of barking dogs and immediate return to the porch indicate that, by entering the porch,

the officers acted as other visitors would in order to continue their conversation with her.

       Claus argues that the officers’ conduct should not be sanctioned as a constitutional

“knock and talk” because they did not first attempt other less intrusive investigatory

steps. However, the recognized purposes behind the “knock and talk” procedure is to

either speak with occupants or ask for consent to search. As a result, no objective level

of suspicion is required. See United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir.

2000) (holding that “no suspicion is needed to be shown in order to justify the ‘knock and

                                             6
talk’” (citing Florida v. Bostick, 501 U.S. 429, 434 (1991))). We therefore refuse to

impose the additional protections urged by Claus.

       The officers did not violate the Fourth Amendment by accessing Claus’s porch.

Accordingly, Claus’s claim that the initial encounter invalidated both Henderson’s

consent to enter the home and Claus’s consent to search the property fails.

                                         b. Consent

       Claus further argues that the District Court erred by finding that Henderson

voluntarily consented to the officers’ entry into their home and that Claus voluntarily

consented to the officers’ subsequent search of the premises. The District Court’s

determinations of voluntariness, however, constitute findings of fact that we review only

for clear error. See United States v. Price, 558 F.3d 270, 278 n.7 (3d Cir. 2009). Failing

to find any clear error in the District Court’s conclusions, we will affirm.

       Though under the Fourth Amendment a warrantless entry into and search of a

person’s home is presumptively unreasonable, consent is a well-established exception.

See id. at 277. “To justify [entry and] search based upon consent, the government ‘has

the burden of proving that the consent was, in fact, freely and voluntarily given.’” Id.

(quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)). The voluntariness of a

consent is determined by examining the totality of the circumstances. 4 Id. at 278.


       4
         “[T]he critical factors comprising a totality of the circumstances inquiry include
the setting in which the [search] consent was obtained, the parties’ verbal and non-verbal
actions, and the age, intelligence, and educational background of the consenting [party].”
United States v. Crandell, 554 F.3d 79, 88 (3d Cir. 2009) (alterations in original) (citation
omitted).

                                              7
Importantly, however, consent need not be knowing or intelligent, such that it may be

given unintentionally and without knowledge of the right to refuse consent. See United

States v. Lockett, 406 F.3d 207, 211 (3d Cir. 2005).

       We hold that the District Court’s determination that Henderson voluntarily

consented to the officers’ entry into the house was not clearly erroneous. The District

Court carefully considered Henderson’s interaction with the officers, expressly

acknowledging the factors that Claus argues render her consent involuntary but finding

them outweighed by evidence of Henderson’s exercise of free will. Like the District

Court, we find particularly persuasive the fact that Henderson freely sequestered her

barking dogs, continued to converse with the officers, and eventually invited them inside.

Henderson’s conduct did not exhibit the coercion Claus contends resulted from the

officers’ uninvited entry onto the porch, persistent questioning, and knowledge of her

nervousness. Though Henderson lacked experience with law enforcement agents, the

officers’ failure to advise Henderson of her right to refuse consent does not negate the

strong evidence of voluntariness. 5 See, e.g., United States v. Kim, 27 F.3d 947, 955 (3d




       5
        Continuing his emphasis of the tactic’s susceptibility to abuse, Claus argues that
“the government must demonstrate that the citizen was aware of his right to refuse
consent” when it conducts a “knock and talk.” Appellant Br. at 35. His position,
however, finds no support in the law. In fact, the Supreme Court expressly rejected a
requirement that officers advise individuals of their right to refuse consent before
conducting a search. See Schneckloth v. Bustamonte, 412 U.S. 218, 231 (1973). The
consenting party’s knowledge of his or her right to refuse consent is but one factor in the
voluntariness inquiry. See United States v. Price, 558 F.3d 270, 279 (3d Cir. 2009).

                                             8
Cir. 1994). Therefore, the District Court did not clearly err in concluding that the officers

entered Claus’s home pursuant to Henderson’s voluntary consent. 6

       Similarly, we hold that the District Court did not commit clear error by finding

that Claus voluntarily consented to the officers’ search of his house and surrounding

property. It again undertook careful consideration of Claus’s interaction with the officers

to make its finding of voluntariness. The officers’ suggestion that a search warrant would

most likely issue and that consent would spare Claus of the disruptions associated with a

warrant’s execution did not suffice to render Claus’s consent involuntary. As the District

Court found, the officers did not make affirmative misrepresentations insinuating that

Claus had no choice but to consent; they merely provided a permissible “appraisal of the

realities” he faced. See United States v. Sebetich, 776 F.2d 412, 425 (3d Cir. 1985).

Claus’s assertive behavior during the interaction corroborates that the officers’ strategy

did not coerce his consent. Exhibiting no signs of intimidation, Claus first demanded that

the officers obtain a search warrant and then proceeded to negotiate the terms of his

consent. Claus’s obvious awareness of his right to refuse consent, therefore, well

supported the District Court’s finding that he voluntarily signed the form pursuant to

which the officers searched his property. Accordingly, we will not upset its conclusion.

       By entering and searching Claus’s property pursuant to voluntary consent, the

officers committed no Fourth Amendment violation and appropriately seized the thirteen

       6
         That Henderson had the requisite authority to consent to the officers’ entry is not
in dispute because she was a cohabitant of the house. “[T]he consent of one who
possesses common authority over premises . . . is valid as against the absent,
nonconsenting person with whom that authority is shared.” United States v. Stabile, 633
F.3d 219, 230 (3d Cir. 2011).
                                             9
pounds of marijuana they discovered. Consequently, the search warrant for Claus’s truck

and trailer was issued upon constitutionally obtained evidence, such that the documents

seized during its execution did not constitute “fruit of the poisonous tree.” Therefore, the

District Court properly denied both motions to suppress.

                                      IV. Conclusion

       We will affirm the judgment of the District Court denying Claus’s motions to

suppress.




                                             10
