BE CAREFUL
Recently, the author has seen an upswing of officers utilizing the investigatory technique known as a “knock and talk.” Be Careful to do them correctly! Last term in Florida V. Jardines(2013) 133 S.C. 1409, the U.S. Supreme Court analyzed a case where officers went to the front door of a residence with an investigatory tool, in this case a K9, and evaluated permissible parameters for officers. The Court reaffirmed the common understanding that a home, and its curtilage, is provided the most protection under the Fourth Amendment.
WHEN
A knock and talk is often used when officers have some indication that a resident is involved in criminal activity but lacks probable cause to obtain a search warrant or some other means to effectively investigate their suspicions. The technique is utilized to obtain incriminating evidence or consensual access to a residence. Courts have repeatedly held there is no cause necessary to perform a knock and talk as long as the talking part is consensual.
IMPLIED CONSENT
Most homes have driveways and/or walkways that lead from a public location, often the sidewalk, to the front door. STAY ON THE WALKWAY. In a recent case out of Texas, officer walked onto the front lawn of a property and up to the front window where they viewed a computer in the house that was actively downloading child pornography. The court in Texas suppressed over 1,000 images of child pornography because the officers left the area of implied consent.
CREATE OWN EXIGENCY
Until Kentuck v. King 131 S.Ct 1849, it was commonly understood that officers could not create their own exigency. In a California case, there was an innocent mix-up during a knock and talk where a defendant got he impression that the officers were going to make an imminent entry and closed his door. The officers interpreted the closing of he door as grounds for an exigent circumstance entry. The court held that the officers created their own exigency. Under Kentucky v. King that case would have come out differently. Kentucky v. King stood for the proposition that when officers knock on the door of a residence and merely identify themselves but do not demand entry, the actions of those inside destroying evidence allow for an exigent circumstance entry.
NOT A DETENTION
The contact at the door must be such that it cannot be labeled a detention. Courts have considered multiple officers at the door to be a potential detention. Courts have considered officers demanding entry as a potential detention. And courts have looked at the disposition of the officers, a sunny disposition – not a detention: a cloudy disposition – a detention leading to suppression.
DO NOT MISREPRESENT WHY YOU ARE THERE
Consent to enter must be given knowingly and voluntary. If the suspect is left with the impression that his consent cannot be lawfully withheld, it will be considered to be invalid. Consent must be the result of free and unconstrained choice. For instance, there is a case where a law enforcement officer went to a residence dressed as a utility worker and told the resident that there was a gas leak at the residence. The officer entered and seized evidence. The Court held that the ruse made the consent to enter invalid. Generally, if you misrepresent who you are and why you are seeking entry, courts will hold the entry to be invalid. There are exceptions, but the ethical and careful officer won’t risk it.
1) People v. Colt (2004) 118 Cal.App.4th 1404; People v. Jenkins (2004) 119 Cal.App.4th 369.
2) Bumper v. North Carolina, 391 U.S. 543, 550, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968) .
