                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 19a0138p.06

                   UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 JOSEPH D. WATSON,                                         ┐
                                    Plaintiff-Appellant,   │
                                                           │
                                                           │
        v.                                                 >      No. 18-6047
                                                           │
                                                           │
 PATRICK PEARSON, et al.,                                  │
                                           Defendants,     │
                                                           │
 DAVID MENDEZ and RON TALBOTT, in their official           │
 and individual capacities; BLOUNT COUNTY SHERIFF’S        │
 OFFICE; BLOUNT COUNTY, TENNESSEE,                         │
                                                           │
                                Defendants-Appellees.
                                                           ┘

                          Appeal from the United States District Court
                       for the Eastern District of Tennessee at Knoxville.
                     No. 3:14-cv-00595—Thomas A. Varlan, District Judge.

                                      Argued: May 1, 2019

                                Decided and Filed: June 28, 2019

                Before: CLAY, GILMAN, and KETHLEDGE, Circuit Judges.

                                       _________________

                                           COUNSEL

ARGUED: Tillman J. Breckenridge, PIERCE BAINBRIDGE LLP, Washington, D.C., Evan D.
Lewis, WILLIAM & MARY APPELLATE AND SUPREME COURT CLINIC, Williamsburg,
Virginia, for Appellant. Peako Jenkins, OFFICE OF THE TENNESSEE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellees Mendez and Talbott. ON BRIEF: Tillman J.
Breckenridge, PIERCE BAINBRIDGE LLP, Washington, D.C., Evan D. Lewis, WILLIAM &
MARY APPELLATE AND SUPREME COURT CLINIC, Williamsburg, Virginia, for
Appellant. Peako Jenkins, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellees Mendez and Talbott. Craig L. Garrett, Maryville,
Tennessee, for Blount County Appellees.
 No. 18-6047                          Watson v. Pearson, et al.                               Page 2


     GILMAN, J., delivered the opinion of the court in which CLAY, J., joined.
KETHLEDGE, J. (pg. 10), delivered a separate dissenting opinion.
                                        _________________

                                             OPINION
                                        _________________

       RONALD LEE GILMAN, Circuit Judge.                 Joseph D. Watson filed an action under
42 U.S.C. § 1983, alleging that law-enforcement officers violated his Fourth Amendment rights
by engaging in a warrantless search of the curtilage surrounding the residence where he was
found. The district court agreed that the officers had violated Watson’s Fourth Amendment
rights, but held that those rights were not clearly established at the time of the officers’ actions.
Accordingly, the court granted summary judgment in favor of the officers based on the doctrine
of qualified immunity. Watson then filed this timely appeal. For the reasons set forth below, we
REVERSE the district court’s grant of summary judgment and REMAND the case for further
proceedings consistent with this opinion.

                                       I. INTRODUCTION

       In December 2013, law-enforcement officers Patrick Pearson and David Mendez
attempted to serve a civil levy on Watson at his last-known address. Pearson and Mendez
knocked on the front door of Watson’s presumed residence for approximately twenty minutes.
Another law-enforcement officer, Ron Talbott, arrived during this time.

       Watson finally exited the residence. The officers explained that they were serving a civil
levy on him. In response, Watson said that the house belonged to his girlfriend, that his
girlfriend was still inside, and that he did not live at the house. (A subsequent filing clarified that
Watson rented the house with his girlfriend.) Watson also said that he could not get back into
the house because he had left his keys inside. The officers then asked Watson whether he had
anything of value on him against which they could levy. Watson produced change from his
pocket. At that point, the officers told Watson that he was free to leave.

       After Watson left, the officers continued to knock on the front door and turned the knob
to see if the door was locked. It was. They then walked around the exterior of the house to, as
 No. 18-6047                          Watson v. Pearson, et al.                            Page 3


they described it, “look for items that could possibly be levied.” While walking around the side
of the house, the officers smelled marijuana coming from the crawl-space vent. In addition, the
officers claim that they saw partially smoked marijuana joints outside. Watson contends that
what the officers actually saw were hand-rolled cigarettes. These “joints” were never tested to
determine whether they did, in fact, contain marijuana.

       The officers obtained a search warrant for the residence later that day based on the smell
of marijuana, the apparent presence of partially smoked marijuana joints, previous complaints
about suspicious activity at the residence, Watson’s criminal record, and a tip from a confidential
informant. Upon executing the warrant, the officers located a large amount of marijuana inside
the residence along with other evidence indicative of the sale and use of marijuana.

       The state of Tennessee subsequently instituted criminal proceedings against Watson.
Watson moved to suppress the evidence derived from the officers’ search of the residence,
claiming that they had violated his Fourth Amendment rights. The state trial court granted the
motion and the Tennessee Court of Criminal Appeals affirmed. State v. Watson, No. E2016–
00105–CCA–R3–CD, 2017 WL 1324183, at *8 (Tenn. Crim. App. Apr. 10, 2017).

       Watson contemporaneously brought his own action under 42 U.S.C. § 1983, alleging that
the officers, the 5th Judicial District, Blount County, and the Blount County Sherriff’s Office had
violated his Fourth Amendment rights. The claims against Officer Pearson were dismissed by
stipulation between the parties. Subsequently, the district court granted summary judgment in
favor of the remaining defendants. Although the court agreed that Watson’s Fourth Amendment
rights had been violated, it held that Officers Mendez and Talbott were entitled to qualified
immunity because those rights were not clearly established when the incident occurred. The
court determined that “a reasonable officer could have thought that [Watson] did, in fact,
disclaim his privacy interest in the later-searched residence.”

       Watson does not contest the district court’s grant of summary judgment in favor of the
5th Judicial Task Force, and he does not make any argument on appeal as to Blount County or
the Blount County Sherriff’s Office. See Buziashvili v. Inman, 106 F.3d 709, 719 (6th Cir. 1997)
 No. 18-6047                           Watson v. Pearson, et al.                            Page 4


(stating that an appeals court will not consider a claim on which the party makes no argument).
As a result, the issues remaining on appeal relate only to Officers Mendez and Talbott.

                                           II. ANALYSIS

A. Standard of review

          “We review the district court’s grant of summary judgment on qualified immunity
grounds de novo.” Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013). Summary judgment is
appropriate if the evidence before the court demonstrates that “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”                   Fed.
R. Civ. P. 56(a). In considering a motion for summary judgment, we must draw all reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).

B. Qualified immunity

          The doctrine of qualified immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). “Qualified immunity balances two important interests—the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties reasonably.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009). To determine whether an officer is entitled to qualified
immunity, we evaluate two independent prongs: whether the officer’s conduct violated a
constitutional right, and whether that right was clearly established at the time of the incident. Id.
at 232.

          1. The officers violated Watson’s Fourth Amendment rights.

          In evaluating the first prong of the qualified-immunity analysis, we must determine
whether the officers violated Watson’s Fourth Amendment rights. See Greer v. City of Highland
Park, 884 F.3d 310, 314–15 (6th Cir. 2018). The district court concluded that the officers did so
 No. 18-6047                         Watson v. Pearson, et al.                             Page 5


by searching the curtilage of the residence without a warrant and without a valid excuse for not
obtaining one. This conclusion is not disputed by the officers.

       “[T]he Fourth Amendment provides a potent shield against warrantless searches and
seizures within the curtilage of a person’s home.” Jacob v. Twp. of W. Bloomfield, 531 F.3d 385,
389 (6th Cir. 2008). A warrantless search of the curtilage violates the Fourth Amendment unless
an exception to the warrant requirement applies. See id. at 392. In this case, the officers did not
have a warrant when they arrived at the residence and entered the curtilage. They argued at the
district court level that Watson’s statements demonstrated an intent to disclaim his privacy
interest in the residence, thereby allowing the officers to treat the house as abandoned under Abel
v. United States, 362 U.S. 217 (1960), and State v. Ross, 49 S.W.3d 833 (Tenn. 2001). The
district court rejected this argument, as do we. Watson had just exited the house, stated that his
girlfriend lived there, and claimed that he had left his keys to the residence inside. At the very
least, Watson communicated that he was an overnight or social guest with a legitimate
expectation of privacy in the residence. See Minnesota v. Olson, 495 U.S. 91, 96–97 (1990)
(concluding that overnight guests have a legitimate expectation of privacy where they stay).

       In addition, the officers do not cite any cases that extend the abandonment exception to
inhabited residences. Abel and its progeny have confined this exception to vacated hotel rooms,
apartments after an eviction, and movable property. See, e.g., Abel, 362 U.S. at 241 (holding that
an individual has no privacy interest in abandoned property, such as items thrown away in a
vacated hotel-room wastebasket); United States v. Tolbert, 692 F.2d 1041, 1044–45 (6th Cir.
1982) (concluding that a woman possessed no reasonable expectancy of privacy in her suitcase
when she claimed that it was not hers); United States v. Roberts, 465 F.2d 1373, 1375 (6th Cir.
1972) (holding that a tenant did not have a privacy interest in an apartment after being evicted by
the landlord), overruled on other grounds by United States v. Stone, 748 F.2d 361 (6th Cir.
1984); State v. Ross, 49 S.W.3d 833, 842 (Tenn. 2001) (concluding that a man disclaimed his
privacy interest in a hotel room when he stated that the hotel key in his sock belonged to
someone else).

       The abandonment exception, moreover, has never been applied to residences that have
been left unattended for only a short period of time. Accordingly, we agree with the district
 No. 18-6047                         Watson v. Pearson, et al.                             Page 6


court’s conclusion that the officers violated Watson’s constitutional rights by searching the
curtilage of the home without a warrant.

       2. Watson’s rights were clearly established when the search occurred.

       This brings us to the second prong of the qualified-immunity analysis—whether
Watson’s rights were clearly established at the time of the constitutional violation. See Greer,
884 F.3d at 315.     The district court concluded that the officers were entitled to qualified
immunity because a reasonable officer, under the precedent existing in December 2013, could
have reasonably thought that Watson had disclaimed his privacy interest in the residence, thus
allowing the officers to treat the property as abandoned and not subject to Fourth Amendment
protection. In addition, Officers Mendez and Talbott argue that the scope of their implied license
to enter and remain on the curtilage was not clearly established when the violation occurred.

               a. Under clearly established law, Watson did not disclaim his privacy
                  interest in the residence, and the property was not abandoned.

       The officers argue that they could have reasonably believed that Watson had disclaimed
his privacy interest in the residence, thus allowing them to treat the property as abandoned. To
support this argument, they cite cases where individuals disclaimed privacy interests in
abandoned hotel rooms, bags, or moveable property. See, e.g., Abel, 362 U.S. at 241; Tolbert,
692 F.2d at 1044–45; Ross, 49 S.W.3d at 842. But these cases do not support the officers’
position. Watson stated that his girlfriend lived in the house and that he had left his keys inside.
As explained above, Watson reasonably communicated that he was at least an overnight or social
guest. This would afford him a legitimate expectation of privacy in the residence. See Olson,
495 U.S. at 96–97. In addition, Watson had just exited the house and stated that his girlfriend
was still inside. The residence was therefore clearly not abandoned. No officer could have
reasonably believed that Watson disclaimed his privacy interest in the residence or that the
property was abandoned by its owners or tenants.
 No. 18-6047                         Watson v. Pearson, et al.                            Page 7


                b. Under clearly established law, the officers exceeded the scope of their
                   implied license to enter and remain on the curtilage.

         The officers also contend that their warrantless intrusion into the curtilage was not
prohibited by clearly established law when the search occurred in December 2013. They claim
that a reasonable officer could have believed that the “knock and talk” exception, as discussed in
Hardesty v. Hamburg Township, 461 F.3d 646 (6th Cir. 2006), extended to their actions.

         The Fourth Amendment protects the curtilage of the house, Oliver v. United States, 466
U.S. 170, 180 (1984), and warrantless searches of the curtilage “are per se unreasonable under
the Fourth Amendment—subject only to a few specifically established and well-delineated
exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967) (footnote omitted). One of these
exceptions is the “knock and talk” rule, which allows an officer without a warrant to enter the
curtilage and knock on the front door in an attempt to speak with the occupants or to ask for
consent to search the premises. See, e.g., Florida v. Jardines, 569 U.S. 1, 8 (2013); United
States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005).

         In September 2006, this court concluded that the “knock and talk” exception permitted
officers to proceed around a house and knock on the back door if they have reason to believe that
an individual is inside the house and no one answered the front door. Hardesty, 461 F.3d at 654.
This court reiterated that position in Turk v. Comerford, 488 F. App’x 933, 947 (6th Cir. 2012).
But in March 2013, the Supreme Court clarified in Jardines that a police officer without a
warrant is limited to “approach the home by the front path, knock promptly, wait briefly to be
received, and then (absent invitation to linger longer) leave.” Jardines, 569 U.S. at 8. The Court
held that “a police officer not armed with a warrant may approach a home and knock, precisely
because that is ‘no more than any private citizen would do.’” Id. (quoting Kentucky v. King, 563
U.S. 452, 469 (2011)). And in September 2018, the Sixth Circuit explicitly stated that Jardines
had overturned Hardesty and Turk. Morgan v. Fairfield County, 903 F.3d 553, 565 (6th Cir.
2018).

         The officers argue, however, that Jardines was not understood in 2013 to have clearly
superseded Hardesty and Turk. They claim that the scope of the “knock and talk” exception was
not clearly established until the Sixth Circuit decided Morgan in September 2018. The officers
 No. 18-6047                          Watson v. Pearson, et al.                             Page 8


rely on Brennan v. Dawson, 752 F. App’x 276 (6th Cir. 2018), an unpublished case concluding
that Hardesty was good law until Morgan was decided. Id. at 285. Brennan posited that
Jardines did not clearly govern situations in which a police officer had reason to believe that
someone was inside the home and the officer entered the curtilage in an attempt to contact that
person. Id.

       We are not persuaded. First, Jardines clearly rejected the kind of intrusion into the
curtilage that Hardesty had permitted. A plain reading of Jardines does not allow an officer to
intrude into the curtilage by walking around the house. See Jardines, 569 U.S. at 8. Although
Brennan interprets Jardines differently, it is an unpublished case and clearly conflicts with
then-existing Supreme Court caselaw. We are not bound by Brennan. See United States v.
Sanford, 476 F.3d 391, 396 (6th Cir. 2007) (“As an unpublished decision, [it] is not
precedentially binding under the doctrine of stare decisis, but is considered by us for its
persuasive value only.”).

       Moreover, even if Jardines was not understood in 2013 to have overturned Hardesty and
Turk, those cases do not permit an officer to enter the curtilage to engage in a search. Hardesty
and Turk at most held that the scope of the “knock and talk” investigative technique permitted
officers to walk to the backyard of a residence in an effort to communicate with individuals
thought to be inside. Those cases did not permit officers to enter the curtilage with the intent of
performing a search.

       In the present case, the officers were not trying to contact anyone inside the residence
when they entered the curtilage. According to the officers’ own affidavits, they “walked around
the exterior of the property to look for items that could possibly be levied.” We acknowledge the
officers’ current argument that they “presumably” could have been seeking to contact Watson’s
girlfriend so that she could “assist[] them in identifying items that belonged to [Watson].” But
this version of the facts is directly contradicted by their affidavits and seriously undermines their
abandonment argument.       The “knock and talk” exception discussed in Hardesty and Turk
therefore could not have been extended to permit the officers’ purposeful search of the curtilage.
 No. 18-6047                        Watson v. Pearson, et al.                            Page 9


       In sum, the officers are not entitled to qualified immunity because they violated Watson’s
constitutional rights and because those rights were clearly established when the incident
occurred. The district court accordingly erred by granting summary judgment in favor of the
officers based on qualified immunity.

                                        III. CONCLUSION

       For all the reasons set forth above, we REVERSE the district court’s grant of summary
judgment and REMAND the case for further proceedings consistent with this opinion.
 No. 18-6047                        Watson v. Pearson, et al.                           Page 10


                                      _________________

                                           DISSENT
                                      _________________

       KETHLEDGE, Circuit Judge, dissenting. I see nothing in the relevant facts or law that
would have made obvious to the officers that Watson had a privacy interest in the house.
Watson had just told the officers that he neither owned nor lived there. The majority asserts that
“[a]t the very least, Watson communicated that he was an overnight guest or social guest[.]”
Maj. Op. at 5. But neither of those things were true once Watson left the scene.        Nor does
Watson identify any case that would have made clear to the officers that Watson retained some
privacy interest in the property based on his vague reference to “his keys inside.” I therefore
respectfully dissent.
