126 busted equals about 100 rats and 1,000 more busts to come
- Thread starter Presser
- Start date
bigbaldbulldog
Banana
Usually they find the small fish and get them to talk and then they go for the BIG fish.. I am very interested is seeing what they do with all these guys.. Will go for smaller gusy an dget them to turn evidence against their suppliers or will they be happy with the BIG fish and look for their best clients...
I HATE RATS!!! Play the game take the blame... Be a man!!!!!!
I HATE RATS!!! Play the game take the blame... Be a man!!!!!!
Local124bro
New member
Tax dollars at work.........
Where I live thew meth problem far out weighs the steroid "problem".
How many guys are robbing gas stations for steroids?? Hell drunk drivers are a bigger risk ! Thats my two cents
Where I live thew meth problem far out weighs the steroid "problem".
How many guys are robbing gas stations for steroids?? Hell drunk drivers are a bigger risk ! Thats my two cents
bigbaldbulldog
Banana
I like your two cents and add 2 more...Local124bro said:
AZ1
New member
Sup bitches
I havent been on here in so long I fuckn cant figure out to to make my own post...and so I hijack presser. Where is that damn button?
Anywayz the recent busts are going to be leading to what is called "Knock and talk" contacts by law enforcement. If you or anyone you know has a valid concern about your name or address appearing on some seized lab list, and you have ordered a sizeable order, you can expect the people who placed the largest orders are highest on the list.
REPOST THIS FOR EACH OTHER, NOW IS THE CHANCE.
Now, receiving something in the mail that arrived safely months ago is not probable cause for a warrant. However, you would be surprised how many jackasses will allow an officer through their front door to talk to them, and that is whats coming.
DO NOT ANSWER YOUR DOOR FOR ANYONE. It opens too many legal troubles...letsay you open door, and your roomie just got done with his daily wake and bake. The DEA agent who wanted to speak with you can now leave and apply for a warrant under the "plain smell doctrine".
If you must answer the door, DONT OPEN IT. Yell through it and tell them to go away. If they say "open the door, I cant hear you" simply reply by raising your voice and yell louder, "FINE, I'LL SPEAK UP, WE HAVE NOTHING TO SAY, GO AWAY!!!" There is no requirement you open your door to the police and if they had a warrant they wouldnt give a fuck about asking you.
Do not step outside. The police are tricky about getting people out of their homes. JUST DONT ANSWER DOOR. Admit nothing. Dont lie. Just refuse to answer. Police have been known to push their way inside a door that gets opened and if their digital recorder isnt on who do you think they will believe?
The AGENT, NOT YOU!
Refusing to answer cant hurt you. Lying can. No need to lie. But no need to talk at all. If you lie to a federal agent that it another charge...false statements.
If you let them in and they see a 10cc bottle or you happen to live in a state where syringes are illegal and one is laying on the coffee table...guess what. "Plain sight doctrine"
If you are a total fucking moron and you let them in, they should still ask to search, SAY NO. They are recording you!
If you are still a total fucking moron and you didnt say no, CHANGE YOUR MIND, you can retract consent for a search at any time, but if they find something first it will be admissable.
I dont know why you would want to do this, but you can also limit the scope of a search by saying, you can search this room only. BUT REFUSE TO ANSWER ANY QUESTIONS. Cops and agents cannot "help you" or "make a deal" only prosecutors can do that and it will be months later. Do not answer questions to investigators, just ask to see an attorney.
REFUSE TO LET THEM IN TO LOOK AROUND OR "TALK"
ACT OFFENDED AT THE DEMAND ON YOUR TIME. ACT OFFENDED FOR GODS SAKES YOU ARE A FUCKING AMERICAN AND THIS IS AMERICA AND THE SUPREME COURT OF THE LAND HAS SAID YOUR HOME IS YOUR "CASTLE". THE MOST PROTECTION AFFORDED ANYWHERE IS YOUR RESIDENCE. ASK THEM, WOULD YOU LET ME INTO YOUR HOUSE TO SEARCH AROUND FOR NO REASON, HELL NO!
No warrant, cool, you can tell them to get the hell off your property ASAP. Do not slam a door and yell, "quick johnny flush it!" and run across your apartment. This could be looked at by a court as exigent circumstances justifying a warrantless entry to prevent imminent destruction of evidence.
Typically that situation would be an exigent circumstance created by the police(and excluded) but that is up to a judge to decide so just dont do it!
REMEMBER IF THEY WANT TO KNOCK AND TALK ITS EITHER THEY HAVE NOTHING TO OBTAIN WARRANT OR WHAT THEY HAVE IS ONLY REASONABLE SUSPICION(YOUR NAME ON A LIST) WHICH THEY WILL TALK TO YOU UNTIL YOU GIVE THEM PROBABLE CAUSE.
IF YOU LIVE WITH A ROOMMATE, LOCK YOUR BEDROOM DOOR AT ALL TIMES.
Your roommate could consent to a search of your apartment in your absence and fuck you, however with a locked door to your bedroom, if the police unlocked it, opened it and found anything, the courts would find the roommate did not have standing to consent to the search of your room as he did not have access to it and you took reasonable steps to secure it and insure privacy. If it was locked, you had a "reasonable expectation of privacy".
Here is a ver well documented very well written article on "Knock and Talk" law enforcement techniques.
Also remember, if they are doing a knock and talk, 95% of the time they are wearing a digital recorder to protect themselves in these "iffy" consent searches. They want to have proof you consented to a search when doing knock and talk.
Pass this on to other boards you lazy bastards cuz its about to begin.
____________________________________________________________
"Knock & Talk" Consent Searches: If Called by a Panther, Don't Anther1
by H. Morley Swingle and Kevin M. Zoellner
Synopsis: "Knock and talk" consent searches are popular with law enforcement officers because they save the time and trouble of securing a search warrant from a judge. While the potential for abuse is apparent, the determination whether a particular "knock and talk" search is legal involves nothing more than the application of well-established Fourth Amendment principles.
The Fourth Amendment and the responsibility of this Court in relation to it [are] of as great importance as any aspect of civil liberties.
Introduction
Prior to 1991, no appellate case ever used the phrase "knock and talk" in reference to a consent search of a home.4 Since then, the use of this new shorthand description for a long-established police investigative technique has burst across the United States, not only in police training rooms, but also in judicial opinions. The catchy phrase has now appeared in no less than 46 appellate decisions, some reported,5 some not,6 including one 1998 Western District of Missouri case.7 Prosecutors, judges and defense attorneys have been uncertain how to properly analyze "knock and talk" searches, perhaps precisely because they come packaged under a sporty new name. Actually, the determination whether a particular "knock and talk" search is constitutional involves nothing more than the application of well-established Fourth Amendment principles pertaining to consent searches.8
The typical "knock and talk" simply involves police officers marching up to someone's front door, knocking, and requesting consent to search the home. A good description of the procedure was recently articulated by the North Carolina Supreme Court:
The "knock and talk" procedure is a tactic used by law enforcement . . . when they get information that a certain person has drugs in a residence but the officers don't have probable cause for a search warrant. The officers then proceed to the residence, knock on the door, and ask to be admitted inside. Thereafter gaining entry, the officers inform the person that they're investigating information that drugs are in the house. The officers then ask for permission to search and apparently are successful in many cases in getting the occupant's "apparent consent."9
Other cases provide similar definitions.10 The scenario comes up most often when an anonymous source tips off police that drugs are being sold out of a particular house and the officers are either unable or unwilling to take the steps necessary to sufficiently corroborate the tip to establish probable cause.11 Sometimes, even when consent is not given, additional information obtained during the "knock and talk" can subsequently lead to the issuance of a search warrant12 or provide exigent circumstances for a warrantless search.13
Lack of Search Warrant or Probable Cause
"Knock and talk" cases send up red flags for many criminal practitioners because they involve searches of citizens' homes without either search warrants or probable cause. Such a procedure strikes many as being at odds with the cardinal principles of Fourth Amendment law that "physical entrance into the home of another without a warrant is the chief evil the Fourth Amendment has sought to alleviate"14 and that searches and seizures inside a home without a warrant are presumptively unreasonable.15 Indeed, for Fourth Amendment purposes, a man's home is his castle.16 How is it, then, that this warrantless search of the castle is permitted? The answer lies in the development of the law of consent searches.
Consent has long been recognized as one of many exceptions to the search warrant requirement.17 In fact, "[a]fter stop and frisk, . . . consent searches are the most prevalent type of warrantless search arising in Fourth Amendment case law."18 It is important to realize, however, that consent is more than just another search warrant exception; it is also a waiver of the necessity of having probable cause for the search.19 A quarter century ago the United States Supreme Court instructed:
In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence . . . And in those cases where there is probable cause to arrest or search, but where the police lack a warrant, a consent may still be valuable. If the search is conducted and proves fruitless, that in itself may convince the police that an arrest with its possible stigma and embarrassment is unnecessary, or that a far more extensive search pursuant to a warrant is not justified. In short, a search pursuant to consent may result in considerably less inconvenience for the subject of the search, and, properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity.
* * *
Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person's home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning.20
When police utilize a "knock and talk" procedure, whether as a spur of the moment response to an anonymous tip or the final culmination of a long but unsuccessful effort to develop probable cause for a search warrant, they are merely asking for permission to search a person's home, recognizing and risking that a refusal would not only alert the suspect that he is being watched but would quite likely leave the police empty-handed.
When the prosecution seeks to justify any warrantless search under the consent exception, the burden of proof falls upon the prosecution to show by a preponderance of evidence that the consent was freely and voluntarily given.21 The question whether a consent to search was "voluntary" is an issue of fact to be determined from the "totality of all the circumstances."22 Traditional factors in the totality of circumstances inquiry include: (1) whether the person was in custody when the request was made;23 (2) the number of officers present;24 (3) the degree to which the officers emphasized their authority;25 (4) whether weapons were displayed;26 (5) whether there was any fraud on the part of the officers;27 (6) the acts and statements of the person consenting,28 including his state of intoxication;29 (7) the age, intelligence and education of the suspect;30 (8) the length of the questioning;31 (9) the use of physical punishment such as the deprivation of food or sleep;32 and (10) whether the person was advised of his or her right to refuse consent.33 No single factor will control the finding of voluntariness.34
The fact that the police lack probable cause when they come knocking at the suspect's door is not part of the voluntariness question calculus. Police are not required to have probable cause before approaching someone to ask for consent to search so long as a reasonable person would realize that he or she could refuse to give it.35 Whether the request is made in a public place like an airport,36 bus station,37 or highway,38 or whether it is made after knocking upon the door of a suspect's home,39 police officers with legitimate business may enter areas which are impliedly open to the public40 and are permitted the same license to intrude as a reasonably respectful citizen.41 For example, officers going around to knock on a side door after receiving no response to their knocks at the front door may properly glance into an open garbage can as they pass it since "a police officer who approaches a common access route may do so with his eyes open."42 If the side or back door were set up in such a way so as not to be generally open to the public, however, it would be improper for the officers to approach that particular door; any items spotted while in that area would not be considered to be in plain view.43 Likewise, officers who knock on a door at midnight and immediately brush past the person who opens it without obtaining permission to enter, and who are specifically told they do not have consent to search, may not use what they spot in plain view in a subsequent search warrant application.44 A voluntary consent given after the unlawful entry will not necessarily be ruled invalid, though.45
"Knock and talk" searches have proven to be an effective law enforcement tool. The suspect will voluntarily consent in a surprisingly large number of cases. One Texas detective recently testified that he has almost never been refused when using his "knock and talk" technique.46 Its very success is a fact detractors cite to argue the inherent coercion of a "knock and talk,"47 asserting that most people would not question the absence of a search warrant either because they did not know a warrant was required or because they were "too stunned by the circumstances to make a reasoned decision about whether or not to consent to a warrantless search."48
Any of several issues common to other types of consent cases can arise in a "knock and talk" case.
Proof of What Was Said
The exact wording used by the officer and the suspect is often of crucial importance in determining whether consent was given and the scope of that consent. Much time and effort is frequently expended trying to prove precisely what was said. A "knock and talk" done correctly usually involves an officer specifically telling a suspect that police are investigating possible criminal activity and unambiguously asking for consent to search the residence.49 Written consent forms are often used.50 When at all possible, law enforcement officers should utilize tape-recorders when conducting "knock and talk" searches. The prosecution, faced with the burden of proof, will sometimes lose swearing matches if the defendant claims the magic words weren't said.51 As shown recently by the Supreme Court in Ohio v. Robinette,52 the prosecution's burden of proof is much more easily met in consent cases when a recording preserves the conversation verbatim for the trier-of-fact. For example, a recent "knock and talk" case in which officers used a hidden microphone to record the consent transformed what might otherwise have been a hotly contested swearing match into a brief appellate decision affirming the search while quoting the consent word-for-word and declaring that a published decision would have no precedential value.53
Show of Police Authority
Police officers must be careful when choosing their words to make it clear that they are only asking for permission to enter, not demanding it. If police pound loudly on the door and order the occupant to let them in, they will not be able to make a lawful seizure of any evidence spotted in plain view when the door is opened since a person has not voluntarily consented to a public viewing of the inside of his home when he is merely complying with a police demand and show of official authority.54
Scope of Search
The scope of a consent search may be limited by the wording used either by the officer or the suspect. The standard is one of objective reasonableness: what would the typical reasonable person would have understood by the exchange between the officer and the subject of the search.55 In a "knock and talk" where the officers make it clear they are looking for drugs and the suspect responds with a general consent that they can come in and look around because he has nothing to hide, the scope of the search includes "any place in which drugs could be hidden," including the interior of a microwave oven."56 Conversely, if the consent is limited to one particular room, the officers are bound by the limits of that consent.
Termination of Consent
The party giving consent to search may terminate that consent at any time.57 In United States v. Dichiarinte,58 the suspect saw that the search to which he had given consent had expanded beyond simply looking for drugs -- the officers were rummaging through his personal papers and tax files. He announced, "The search is over. I am calling off the search." Quite properly, all evidence found after Dichiarinte withdrew his consent was later suppressed. Of course, had the police found incriminating evidence before consent was withdrawn, they could have arrested the suspect and searched the immediate area around him incident to that arrest, and later applied for a search warrant to conduct a more thorough and extensive search of the entire home.59
Threat to Obtain Search Warrant
Without question, a false claim by police officers that they have a search warrant when they really do not renders any consent involuntary.60 A more difficult issue is presented when the officers conducting the "knock and talk" are asked by the suspect, "Will you get a search warrant if I refuse?" Formulating an answer to that question is risky business. Some courts have said that consent is not voluntary if police officers answering the question make no distinction between seeking a search warrant and obtaining one.61 The Eighth Circuit generally holds that consent given in response to a threat to seek a warrant is voluntary,62 maintaining that the threat to obtain a search warrant is "only one factor in the totality of the circumstances inquiry."63 When officers go beyond merely telling a suspect that they will apply for a warrant by adding that if they seek a warrant they will be taking him to a holding cell or detaining him at his home in the meantime, those additional comments may slam the door of consent in the faces of the officers.64
False Statements
False statements or misrepresentations by police officers may or may not affect the voluntariness of consent. Lies as to the identity of the officers will not generally affect the consent. An undercover officer may falsely claim he is a drug customer wanting to come into the drug dealer's home to buy narcotics without affecting the voluntariness of the consent to enter the premises.65 Likewise, an undercover officer may obtain valid consensual entry into a suspect's home by falsely claiming she has car trouble and needs to use his telephone.66 False statements as to the scope, nature or purpose of the search can at times render a consent invalid, though. When a state trooper misleads a motorist by asking to "peek inside" the vehicle when he really intends a full search, the consent will be held invalid.67 When police falsely tell a suspect they want to inspect her home because she is a crime victim but really intend to look for marijuana, her consent will be found involuntary.68 On the other hand, an officer's request to examine defendant's shotgun on the ruse that he wants to verify whether it might have been used in a robbery, when his real purpose is to catch the defendant for being a felon in possession of a firearm, is a consensual search if the defendant is dumb enough to fetch it for him.69
Miranda Warnings
It has been held that an officer conducting a "knock and talk" need not give Miranda warnings when asking for permission to search a home since the doorway conversation is not custodial interrogation.70 Nor under federal law must officers specifically warn the suspect of any right to refuse the consent.71 Missouri follows federal law for Fourth Amendment purposes.72 At least one state, though, has provided that its own constitution provides a greater level of privacy protection and requires police officers doing "knock and talks" to specifically inform targets that they have the right to refuse consent.73
Third Party Consent
In order for a consent to be valid, it must have been given by a person with the authority to give consent to search the premises, or at least by someone with apparent authority to consent to the search.74 Thus, police conducting a "knock and talk" cannot obtain a valid consent from a man whose only connection to the premises is that he lives up the street and had just stopped by.75
Exigent Circumstances
Officers conducting a "knock and talk" may end up finding themselves in a situation where exigent circumstances allow them to enter the house warrantlessly to prevent the destruction of evidence.76 For instance, police officers responding to a call about a suspected methamphetamine laboratory who are met at the door by an overpowering chemical smell, together with a man whose hands are stained with red phosphorous and who is carrying a hot plate, who tries to slam the door in their faces, may pursue the man into the house.77 Likewise, police officers approaching a house for a "knock and talk" who glimpse through a window a group of men sitting at a table admiring a mound of white powder, foil wrappers and a handgun, may immediately enter the house warrantlessly once the men spot the officers and begin fleeing from the room.78 In such situations, exigent circumstances make it proper for the police to enter the premises, conduct a limited protective sweep, secure the scene, and apply for a search warrant for a more extensive search.79 Similarly, when police are conducting a "knock and talk" for drugs at a back door open to the public, and notice a man carrying a package sneaking out the front door, they have reasonable suspicion to make a Terry stop of that man.80 It has also been held that under the public safety exception to the requirement for Miranda warnings, an officer who walks up to a house to conduct a "knock and talk" and smells an overwhelming odor of ammonia and finds himself standing in a puddle of unknown liquid may ask the occupant of the house whether a fire hazard exists upon the premises and exactly what substance the officer has all over his shoes.81 At least one jurisdiction holds, nevertheless, that exigent circumstances do not allow police to kick in the door of a person who denies them entry on a "knock and talk" merely because he closed a shade on the door and was heard running away from the door (presumably to flush his drugs down a toilet) since "a warrantless entry of a house by law enforcement authorities, even based upon probable cause, cannot be justified by exigent circumstances of their own making."82
Conclusion
Although the phrase "knock and talk" was not used in any Missouri appellate case until 1998,83 the procedure was upheld by Missouri courts years before it acquired its newfangled name.84 By whatever label, a consent search of a home will continue to be a frequently utilized police procedure and one of the most often litigated suppression issues. All criminal practitioners need to be prepared to recognize and vigorously argue the Fourth Amendment issues inevitably presented in the wake of the dreaded knock upon the door.
Endnotes
1 When faced with the dreaded knock upon the door, the criminal element would be wise to heed the words of the poet Ogden Nash: "f called by a panther, don't anther." The Panther, in The Moon is Shining Bright as Day, ed. Ogden Nash (1953).
2 Frankfurter's comment was made in a letter to Chief Justice Earl Warren. Bernard Schwartz, Super Chief, Earl Warren and His Supreme Court, a Judicial Biography (1983), 266.
3 Franz Kafka, The Trial 1-3 (Alfred A. Knopf, Inc. 1992) (1925).
4 State v. Land, 806 P.2d 1156 (Or. App. 1991), is evidently the first appellate case to use the phrase "knock and talk."
5 U.S. v. Scroger, 98 F.3d 1256 (10th Cir. 1996); U.S. v. Taylor, 97 F.3d 1360 (10th Cir. 1996); U.S. v. Hyppolite, 65 F.3d 1151 (4th Cir. 1995); U.S. v. Heath, 58 F.3d 1271 (8th Cir. 1995); U.S. v. James, 40 F.3d 850 (7th Cir. 1994); U.S. v. Meza-Corrales, 991 F. Supp. 1169 (D. Ariz. 1997); U.S. v. Zertuche-Tobias, 953 F. Supp. 803 (S.D. Tex. 1996); U.S. v. Conner, 948 F. Supp. 821 (N.D. Iowa 1996); U.S. v. Fairchild, 943 F. Supp. 1174 (W.D. Mo. 1996); U.S. v. Miller, 933 F. Supp. 501 (M.D. N.C. 1996); U.S. v. Powell, 929 F. Supp. 231 (S.D. W. Va. 1996); U.S. v. Roberts, 928 F. Supp. 910 (W.D. Mo. 1996); U.S. v. Clarke, 925 F. Supp. 1433 (W.D. Mo. 1996); U.S. v. Woodard, 873 F. Supp. 535 (D. Kan. 1994), aff'd, 91 F.3d 160 (10th Cir. 1996); U.S. v. Cruz, 838 F. Supp. 535 (D. Utah 1993); People v. O'Hearn, 931 P.2d 1168 (Colo. 1997); State v. Green, 598 So. 2d 624 (La. App. 1992); State v. Krile, 976 S.W.2d 16 (Mo. App. W.D. 1998); State v. Vidales, 571 N.W.2d 117 (Neb. App. 1997); State v. Smith, 488 S.E.2d 210 (N.C. 1997); State v. Jenkins, 661 N.E.2d 806 (Ohio App. 1995); State v. Powelson, 961 P.2d 869 (Or. App. 1998); State v. Land, 806 P.2d 1156 (Or. App. 1991); Almaguer v. State, 960 S.W.2d 172 (Tex. App. 1997); State v. Ferrier, 960 P.2d 927 (Wash 1998.); State v. Faford, 910 P.2d 447 (Wash. 1996); City of Everett Police Department v. Real Property Known as 4827 268th St. N.W., Standwood, Snohomish County, 935 P.2d 650 (Wash. App. 1997); State v. Graffius, 871 P.2d 1115 (Wash. App. 1994); State v. Phillips, 563 N.W.2d 573 (Wis. App, 1997), aff'd, 577 N.W.2d 794 (Wis. 1998).
6 A Westlaw search for cases using the phrase "knock and talk" produced not only the 29 reported cases in the preceding footnote, but also 17 short unpublished opinions emblazoned with the warning that they are of no precedential value and should not be cited.
7 State v. Krile, 976 S.W.2d 16 (Mo. App. W.D. 1998).
8 Id.
9 State v. Smith, 488 S.E.2d 210, 212 (N.C. 1997).
10 U.S. v. Heath, 58 F.3d 1271 (8th Cir. 1995); U.S. v. Meza-Corrales, 991 F. Supp. 1169 (D. Ariz. 1997); U.S. v. Zertuche-Tobias, 953 F. Supp. 803, 811 (S.D. Tex. 1996); U.S. v. Miller, 933 F. Supp. 501 (M.D. N.C. 1996); U.S. v. Powell, 929 F. Supp. 231, 232 (S.D. W. Va. 1996); U.S. v. Cruz, 838 F. Supp. 535, 537 (D. Utah 1993); State v. Krile, 976 S.W.2d 16 (Mo. App. W.D. 1998); State v. Ferrier, 960 P.2d 927 (Wash. 1998); State v. Graffius, 871 P.2d 1115 (Wash. App. 1994).
11 U.S. v. Heath, 58 F.3d 1271 (8th Cir. 1995); U.S. v. James, 40 F.3d 850 (7th Cir. 1994); U.S. v. Miller, 933 F. Supp. 501 (M.D. N.C. 1996); U.S. v. Powell, 929 F. Supp. 231 (S.D. W. Va. 1996); U.S. v. Woodard, 873 F. Supp. 535 (D. Kan. 1994), aff'd, 91 F.3d 160 (10th Cir. 1996); People v. O'Hearn, 931 P.2d 1168 (Colo. 1997); State v. Green, 598 So. 2d 624 (La. App. 1992); Almaguer v. State, 960 S.W.2d 172 (Tex. App. 1997); State v. Phillips, 577 N.W.2d 794 (Wis. 1998).
12 U.S. v. Hyppolite, 65 F.3d 1151 (4th Cir. 1995); State v. Graffius, 871 P.2d 1115 (Wash. App. 1994).
13 U.S. v. Scroger, 98 F.3d 1256 (10th Cir. 1996).
14 Payton v. New York, 445 U.S. 573, 585 (1980); U.S. v. Miller, 933 F. Supp. 501, 504 (M.D. N.C. 1996); People v. O'Hearn, 931 P.2d 1168, 1173 (Colo. 1997); State v. Phillips, 577 N.W.2d 794, 801 (Wis. 1998).
15 Payton, 445 U.S. at 586; Miller, 933 F. Supp at 504.
16 Miller v. U.S., 357 U.S. 301, 307 (1958); U.S. v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991).
17 Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
18 William E. Ringel, Searches & Seizures, Arrests and Confessions, Section 9.1 (1998).
19 Schneckloth, 412 U.S. at 219; U.S. v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995).
20 Schneckloth v. Bustamonte, 412 U.S. 218, 227-28, 231-32 (1973).
21 State v. Johns, 679 S.W.2d 253, 261 (Mo. banc 1984).
22 Schneckloth v. Bustamonte, 412 U.S. 218 (1973); U.S. v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995); State v. Blair, 638 S.W.2d 739, 750 (Mo. banc 1982).
23 State v. Blair, 638 S.W.2d 739, 750 (Mo. banc 1982).
24 Id.
25 Id.
26 Id.
27 Id.
28 Id.
29 State v. Berry, 526 S.W.2d 92, 100 (Mo. App. S.D. 1975).
30 Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).
31 Id.
32 Id.
33 Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
34 Id.
35 Florida v. Bostick, 501 U.S. 429 (1991); Florida v. Royer, 460 U.S. 491, 497 (1983); State v. Scott, 926 S.W.2d 864, 868 (Mo. App. S.D. 1996).
36 Florida v. Royer, 460 U.S. 491 (1983).
37 Florida v. Bostick, 498 U.S. 1021 (1991).
38 State v. Scott, 926 S.W.2d 864 (Mo. App. S.D. 1996).
39 U.S. v. Woodard, 873 F. Supp. 535 (D. Kan. 1994), aff'd, 91 F.3d 160 (10th Cir. 1996). See generally Wayne R. LaFave, Search & Seizure, § 2.3(b) (3d ed. 1996); William E. Ringel, Searches & Seizures, Arrests and Confessions, § 9.3(b) (1998).
40 U.S. v. James, 40 F.3d 850, 862 (7th Cir. 1994); State v. Krile, 976 S.W.2d 16 (Mo. App. W.D. 1998); State v. Akers, 723 S.W.2d 9, 14-15 (Mo. App. W.D. 1986); State v. Graffius, 871 P.2d 1115 (Wash. App. 1994); State v. Green, 598 So. 2d 624, 626 (La. App. 1992).
41 State v. Seagull, 632 P.2d 44, 47 (Wash. 1981).
42 State v. Graffius, 871 P.2d 1115, 1119 (Wash. App. 1994).
43 State v. Krile, 976 S.W.2d 16 (Mo. App. W.D. 1998).
44 People v. O'Hearn, 931 P.2d 1168, 1174 (Colo. 1997).
45 State v. Phillips, 577 N.W.2d 794 (Wis. 1998).
46 U.S. v. Zertuche-Tobias, 953 F. Supp. 803, 811 (S.D. Tex. 1996).
47 State v. Ferrier, 960 P.2d 927 (Wash. 1998).
48 Id.
49 U.S. v. Heath, 58 F.3d 1271, 1276 (8th Cir. 1995); U.S. v. Cruz, 838 F. Supp. 535, 537 (D. Utah 1993).
50 U.S. v. Heath, 58 F.3d 1271, 1273 (8th Cir. 1995); U.S. v. Meza-Corrales, 991 F. Supp. 1169, 1171 (D. Ariz. 1997); U.S. v. Zertuche-Tobias, 953 F. Supp. 803, 812 (S.D. Tex. 1996); U.S. v. Cruz, 838 F. Supp. 535, 538 (D. Utah 1993); State v. White, 755 S.W.2d 363, 365 (Mo. App. E.D. 1988); State v. Land, 806 P.2d 1156, 1157 (Or. App. 1991); Almaguer v. State, 960 S.W.2d 172, 174 (Tex. App. 1997); State v. Ferrier, 960 P.2d 927 (Wash 1998).
51 U.S. v. Miller, 933 F. Supp. 501 (M.D. N. C. 1996); People v. O'Hearn, 931 P.2d 1168, 1173 (Colo. 1997). In one recent case, law enforcement officers won the credibility issue, but the concurring judge nevertheless noted that their "saccharine account" of events left "a bitter aftertaste." U.S. v. Heath, 58 F.3d 1271, 1276 (8th Cir. 1995). This judicial barb could have been avoided by using a tape recorder.
52 519 U.S. 33 (1996).
53 State v. Betcher, 1992 WL 231657 (Minn. App.).
54 U.S. v. Conner, 948 F. Supp. 821, 833-835 (N.D. Iowa 1996).
55 Florida v. Jimeno, 500 U.S. 248, 249-252 (1991); U.S. v. Woodard, 873 F. Supp. 535, 541 (D. Kan. 1994), aff'd, 91 F.3d 160 (10th Cir. 1996); State v. Hyland, 840 S.W.2d 219, 222 (Mo. banc 1992).
56 Woodard, 873 F. Supp. at 541.
57 Mason v. Pulliam, 557 F.2d 426 (5th Cir. 1977); John Wesley Hall, Jr., Search and Seizure, § 8:55 (2d ed. 1991). Of course, what is found before consent is revoked can later provide probable cause for a subsequent search. See State v. Garza, 853 S.W.2d 462 (Mo. App. S.D. 1993).
58 445 F.2d 126 (7th Cir. 1971).
59 U.S. v. Scroger, 98 F.3d 1256 (10th Cir. 1996).
60 Bumper v. North Carolina, 391 U.S. 543 (1968).
61 U.S. v. Faruolo, 506 F.2d 490 (2d Cir. 1974); U.S. v. Boukater, 409 F.2d 537 (5th Cir. 1969).
62 U.S. v. Larson, 978 F.2d 1021 (8th Cir. 1992); U.S. v. Raines, 536 F.2d 796 (8th Cir. 1976). See also U.S. v. Meza-Corrales, 991 F. Supp. 1169, 1173 (D. Ariz. 1997); State v. Land, 806 P.2d 1156 (Or. App. 1991); Almaguer v. State, 960 S.W.2d 172, 176, n. 4 (Tex. App. 1997).
63 U.S. v. Severe, 29 F.3d 444 (8th Cir. 1994).
64 State v. Powelson, 961 P.2d 869 (Or. App. 1998).
65 Lewis v. U.S., 385 U.S. 206 (1966).
66 People v. Catania, 398 N.W.2d 343 (Mich. 1986), reversing, 366 N.W.2d 38 (Mich. App. 1985).
67 State v. Lorenzo, 743 S.W.2d 529 (Mo. App. W.D. 1987).
68 People v. Daugherty, 514 N.E.2d 228 (Ill. App. 1987).
69 U.S. v. Andrews, 746 F.2d 247 (5th Cir. 1984).
70 U.S. v. Meza-Corrales, 991 F. Supp. 1169, 1173 (D. Ariz. 1997); U.S. v. Zertuche-Tobias, 953 F. Supp. 803, 829 (S.D. Tex. 1996); State v. Pena, 784 S.W.2d 883 (Mo. App. W.D. 1990); Almaguer v. State, 960 S.W.2d 172 (Tex. App. 1997). But see People v. O'Hearn, 931 P.2d 1168, 1175-1176 (Colo. 1997).
71 Schneckloth v. Bustamonte, 412 U.S. 218 (1973); U.S. v. Woodard, 873 F. Supp. 535, 540 (D. Kan. 1994), aff'd, 91 F.3d 160 (10th Cir. 1996); State v. Phillips, 577 N.W.2d 794, 804 (Wis. 1998).
72 State v. Jones, 865 S.W.2d 658 (Mo. banc 1993).
73 State v. Ferrier, 960 P.2d 927 (Wash. 1998).
74 Illinois v. Rodriguez, 497 U.S. 177 (1990).
75 U.S. v. Powell, 929 F. Supp. 231 (S.D. W. Va. 1996).
76 U.S. v. Tobin, 923 F.2d 1506 (11th Cir. 1991); U.S. v. Peters, 912 F.2d 208 (8th Cir. 1990); State v. Roberts, 957 S.W.2d 449 (Mo. App. W.D. 1997).
77 U.S. v. Scroger, 98 F.3d 1256 (10th Cir. 1996).
78 U.S. v. James, 40 F.3d 850 (7th Cir. 1994).
79 U.S. v. Scroger, 98 F.3d 1256 (10th Cir. 1996). In U.S. v. Meza-Corrales, 991 F. Supp. 1169 (D. Ariz. 1997), the defendant consented to a full search after the completion of the protective sweep. See also State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975).
80 State v. Green, 598 So. 2d 624 (La. App. 1992); Terry v. Ohio, 392 U.S. 1 (1968).
81 U.S. v. Fairchild, 943 F. Supp. 1174 (W.D. Mo. 1996).
82 State v. Jenkins, 661 N.E.2d 806, 810 (Ohio App. 1995).
83 State v. Krile, 976 S.W.2d 16 (Mo. App. W.D. 1998).
84 State v. White, 755 S.W.2d 363 (Mo. App. E.D. 1988); State v. Akers, 723 S.W.2d 9 (Mo. App. W.D. 1986).
Mr. Swingle is the prosecuting attorney of Cape Girardeau County. He is a 1980 graduate of the University of Missouri-Columbia School of Law. Mr. Zoellner is an assistant attorney general for the State of Missouri employed in the Attorney General's Methamphetamine Prosecution Strike Force. He is a 1993 graduate of the University of Missouri-Columbia School of Law. The opinions expressed in this article are not necessarily the opinions of the Office of the Attorney General.
1999, H. Morley Swingle and Kevin M. Zoellner
JOURNAL OF THE MISSOURI BAR
Volume 55 - No.1 - January-February 1999
I havent been on here in so long I fuckn cant figure out to to make my own post...and so I hijack presser. Where is that damn button?
Anywayz the recent busts are going to be leading to what is called "Knock and talk" contacts by law enforcement. If you or anyone you know has a valid concern about your name or address appearing on some seized lab list, and you have ordered a sizeable order, you can expect the people who placed the largest orders are highest on the list.
REPOST THIS FOR EACH OTHER, NOW IS THE CHANCE.
Now, receiving something in the mail that arrived safely months ago is not probable cause for a warrant. However, you would be surprised how many jackasses will allow an officer through their front door to talk to them, and that is whats coming.
DO NOT ANSWER YOUR DOOR FOR ANYONE. It opens too many legal troubles...letsay you open door, and your roomie just got done with his daily wake and bake. The DEA agent who wanted to speak with you can now leave and apply for a warrant under the "plain smell doctrine".
If you must answer the door, DONT OPEN IT. Yell through it and tell them to go away. If they say "open the door, I cant hear you" simply reply by raising your voice and yell louder, "FINE, I'LL SPEAK UP, WE HAVE NOTHING TO SAY, GO AWAY!!!" There is no requirement you open your door to the police and if they had a warrant they wouldnt give a fuck about asking you.
Do not step outside. The police are tricky about getting people out of their homes. JUST DONT ANSWER DOOR. Admit nothing. Dont lie. Just refuse to answer. Police have been known to push their way inside a door that gets opened and if their digital recorder isnt on who do you think they will believe?
The AGENT, NOT YOU!
Refusing to answer cant hurt you. Lying can. No need to lie. But no need to talk at all. If you lie to a federal agent that it another charge...false statements.
If you let them in and they see a 10cc bottle or you happen to live in a state where syringes are illegal and one is laying on the coffee table...guess what. "Plain sight doctrine"
If you are a total fucking moron and you let them in, they should still ask to search, SAY NO. They are recording you!
If you are still a total fucking moron and you didnt say no, CHANGE YOUR MIND, you can retract consent for a search at any time, but if they find something first it will be admissable.
I dont know why you would want to do this, but you can also limit the scope of a search by saying, you can search this room only. BUT REFUSE TO ANSWER ANY QUESTIONS. Cops and agents cannot "help you" or "make a deal" only prosecutors can do that and it will be months later. Do not answer questions to investigators, just ask to see an attorney.
REFUSE TO LET THEM IN TO LOOK AROUND OR "TALK"
ACT OFFENDED AT THE DEMAND ON YOUR TIME. ACT OFFENDED FOR GODS SAKES YOU ARE A FUCKING AMERICAN AND THIS IS AMERICA AND THE SUPREME COURT OF THE LAND HAS SAID YOUR HOME IS YOUR "CASTLE". THE MOST PROTECTION AFFORDED ANYWHERE IS YOUR RESIDENCE. ASK THEM, WOULD YOU LET ME INTO YOUR HOUSE TO SEARCH AROUND FOR NO REASON, HELL NO!
No warrant, cool, you can tell them to get the hell off your property ASAP. Do not slam a door and yell, "quick johnny flush it!" and run across your apartment. This could be looked at by a court as exigent circumstances justifying a warrantless entry to prevent imminent destruction of evidence.
Typically that situation would be an exigent circumstance created by the police(and excluded) but that is up to a judge to decide so just dont do it!
REMEMBER IF THEY WANT TO KNOCK AND TALK ITS EITHER THEY HAVE NOTHING TO OBTAIN WARRANT OR WHAT THEY HAVE IS ONLY REASONABLE SUSPICION(YOUR NAME ON A LIST) WHICH THEY WILL TALK TO YOU UNTIL YOU GIVE THEM PROBABLE CAUSE.
IF YOU LIVE WITH A ROOMMATE, LOCK YOUR BEDROOM DOOR AT ALL TIMES.
Your roommate could consent to a search of your apartment in your absence and fuck you, however with a locked door to your bedroom, if the police unlocked it, opened it and found anything, the courts would find the roommate did not have standing to consent to the search of your room as he did not have access to it and you took reasonable steps to secure it and insure privacy. If it was locked, you had a "reasonable expectation of privacy".
Here is a ver well documented very well written article on "Knock and Talk" law enforcement techniques.
Also remember, if they are doing a knock and talk, 95% of the time they are wearing a digital recorder to protect themselves in these "iffy" consent searches. They want to have proof you consented to a search when doing knock and talk.
Pass this on to other boards you lazy bastards cuz its about to begin.
____________________________________________________________
"Knock & Talk" Consent Searches: If Called by a Panther, Don't Anther1
by H. Morley Swingle and Kevin M. Zoellner
Synopsis: "Knock and talk" consent searches are popular with law enforcement officers because they save the time and trouble of securing a search warrant from a judge. While the potential for abuse is apparent, the determination whether a particular "knock and talk" search is legal involves nothing more than the application of well-established Fourth Amendment principles.
The Fourth Amendment and the responsibility of this Court in relation to it [are] of as great importance as any aspect of civil liberties.
Introduction
Prior to 1991, no appellate case ever used the phrase "knock and talk" in reference to a consent search of a home.4 Since then, the use of this new shorthand description for a long-established police investigative technique has burst across the United States, not only in police training rooms, but also in judicial opinions. The catchy phrase has now appeared in no less than 46 appellate decisions, some reported,5 some not,6 including one 1998 Western District of Missouri case.7 Prosecutors, judges and defense attorneys have been uncertain how to properly analyze "knock and talk" searches, perhaps precisely because they come packaged under a sporty new name. Actually, the determination whether a particular "knock and talk" search is constitutional involves nothing more than the application of well-established Fourth Amendment principles pertaining to consent searches.8
The typical "knock and talk" simply involves police officers marching up to someone's front door, knocking, and requesting consent to search the home. A good description of the procedure was recently articulated by the North Carolina Supreme Court:
The "knock and talk" procedure is a tactic used by law enforcement . . . when they get information that a certain person has drugs in a residence but the officers don't have probable cause for a search warrant. The officers then proceed to the residence, knock on the door, and ask to be admitted inside. Thereafter gaining entry, the officers inform the person that they're investigating information that drugs are in the house. The officers then ask for permission to search and apparently are successful in many cases in getting the occupant's "apparent consent."9
Other cases provide similar definitions.10 The scenario comes up most often when an anonymous source tips off police that drugs are being sold out of a particular house and the officers are either unable or unwilling to take the steps necessary to sufficiently corroborate the tip to establish probable cause.11 Sometimes, even when consent is not given, additional information obtained during the "knock and talk" can subsequently lead to the issuance of a search warrant12 or provide exigent circumstances for a warrantless search.13
Lack of Search Warrant or Probable Cause
"Knock and talk" cases send up red flags for many criminal practitioners because they involve searches of citizens' homes without either search warrants or probable cause. Such a procedure strikes many as being at odds with the cardinal principles of Fourth Amendment law that "physical entrance into the home of another without a warrant is the chief evil the Fourth Amendment has sought to alleviate"14 and that searches and seizures inside a home without a warrant are presumptively unreasonable.15 Indeed, for Fourth Amendment purposes, a man's home is his castle.16 How is it, then, that this warrantless search of the castle is permitted? The answer lies in the development of the law of consent searches.
Consent has long been recognized as one of many exceptions to the search warrant requirement.17 In fact, "[a]fter stop and frisk, . . . consent searches are the most prevalent type of warrantless search arising in Fourth Amendment case law."18 It is important to realize, however, that consent is more than just another search warrant exception; it is also a waiver of the necessity of having probable cause for the search.19 A quarter century ago the United States Supreme Court instructed:
In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence . . . And in those cases where there is probable cause to arrest or search, but where the police lack a warrant, a consent may still be valuable. If the search is conducted and proves fruitless, that in itself may convince the police that an arrest with its possible stigma and embarrassment is unnecessary, or that a far more extensive search pursuant to a warrant is not justified. In short, a search pursuant to consent may result in considerably less inconvenience for the subject of the search, and, properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity.
* * *
Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person's home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning.20
When police utilize a "knock and talk" procedure, whether as a spur of the moment response to an anonymous tip or the final culmination of a long but unsuccessful effort to develop probable cause for a search warrant, they are merely asking for permission to search a person's home, recognizing and risking that a refusal would not only alert the suspect that he is being watched but would quite likely leave the police empty-handed.
When the prosecution seeks to justify any warrantless search under the consent exception, the burden of proof falls upon the prosecution to show by a preponderance of evidence that the consent was freely and voluntarily given.21 The question whether a consent to search was "voluntary" is an issue of fact to be determined from the "totality of all the circumstances."22 Traditional factors in the totality of circumstances inquiry include: (1) whether the person was in custody when the request was made;23 (2) the number of officers present;24 (3) the degree to which the officers emphasized their authority;25 (4) whether weapons were displayed;26 (5) whether there was any fraud on the part of the officers;27 (6) the acts and statements of the person consenting,28 including his state of intoxication;29 (7) the age, intelligence and education of the suspect;30 (8) the length of the questioning;31 (9) the use of physical punishment such as the deprivation of food or sleep;32 and (10) whether the person was advised of his or her right to refuse consent.33 No single factor will control the finding of voluntariness.34
The fact that the police lack probable cause when they come knocking at the suspect's door is not part of the voluntariness question calculus. Police are not required to have probable cause before approaching someone to ask for consent to search so long as a reasonable person would realize that he or she could refuse to give it.35 Whether the request is made in a public place like an airport,36 bus station,37 or highway,38 or whether it is made after knocking upon the door of a suspect's home,39 police officers with legitimate business may enter areas which are impliedly open to the public40 and are permitted the same license to intrude as a reasonably respectful citizen.41 For example, officers going around to knock on a side door after receiving no response to their knocks at the front door may properly glance into an open garbage can as they pass it since "a police officer who approaches a common access route may do so with his eyes open."42 If the side or back door were set up in such a way so as not to be generally open to the public, however, it would be improper for the officers to approach that particular door; any items spotted while in that area would not be considered to be in plain view.43 Likewise, officers who knock on a door at midnight and immediately brush past the person who opens it without obtaining permission to enter, and who are specifically told they do not have consent to search, may not use what they spot in plain view in a subsequent search warrant application.44 A voluntary consent given after the unlawful entry will not necessarily be ruled invalid, though.45
"Knock and talk" searches have proven to be an effective law enforcement tool. The suspect will voluntarily consent in a surprisingly large number of cases. One Texas detective recently testified that he has almost never been refused when using his "knock and talk" technique.46 Its very success is a fact detractors cite to argue the inherent coercion of a "knock and talk,"47 asserting that most people would not question the absence of a search warrant either because they did not know a warrant was required or because they were "too stunned by the circumstances to make a reasoned decision about whether or not to consent to a warrantless search."48
Any of several issues common to other types of consent cases can arise in a "knock and talk" case.
Proof of What Was Said
The exact wording used by the officer and the suspect is often of crucial importance in determining whether consent was given and the scope of that consent. Much time and effort is frequently expended trying to prove precisely what was said. A "knock and talk" done correctly usually involves an officer specifically telling a suspect that police are investigating possible criminal activity and unambiguously asking for consent to search the residence.49 Written consent forms are often used.50 When at all possible, law enforcement officers should utilize tape-recorders when conducting "knock and talk" searches. The prosecution, faced with the burden of proof, will sometimes lose swearing matches if the defendant claims the magic words weren't said.51 As shown recently by the Supreme Court in Ohio v. Robinette,52 the prosecution's burden of proof is much more easily met in consent cases when a recording preserves the conversation verbatim for the trier-of-fact. For example, a recent "knock and talk" case in which officers used a hidden microphone to record the consent transformed what might otherwise have been a hotly contested swearing match into a brief appellate decision affirming the search while quoting the consent word-for-word and declaring that a published decision would have no precedential value.53
Show of Police Authority
Police officers must be careful when choosing their words to make it clear that they are only asking for permission to enter, not demanding it. If police pound loudly on the door and order the occupant to let them in, they will not be able to make a lawful seizure of any evidence spotted in plain view when the door is opened since a person has not voluntarily consented to a public viewing of the inside of his home when he is merely complying with a police demand and show of official authority.54
Scope of Search
The scope of a consent search may be limited by the wording used either by the officer or the suspect. The standard is one of objective reasonableness: what would the typical reasonable person would have understood by the exchange between the officer and the subject of the search.55 In a "knock and talk" where the officers make it clear they are looking for drugs and the suspect responds with a general consent that they can come in and look around because he has nothing to hide, the scope of the search includes "any place in which drugs could be hidden," including the interior of a microwave oven."56 Conversely, if the consent is limited to one particular room, the officers are bound by the limits of that consent.
Termination of Consent
The party giving consent to search may terminate that consent at any time.57 In United States v. Dichiarinte,58 the suspect saw that the search to which he had given consent had expanded beyond simply looking for drugs -- the officers were rummaging through his personal papers and tax files. He announced, "The search is over. I am calling off the search." Quite properly, all evidence found after Dichiarinte withdrew his consent was later suppressed. Of course, had the police found incriminating evidence before consent was withdrawn, they could have arrested the suspect and searched the immediate area around him incident to that arrest, and later applied for a search warrant to conduct a more thorough and extensive search of the entire home.59
Threat to Obtain Search Warrant
Without question, a false claim by police officers that they have a search warrant when they really do not renders any consent involuntary.60 A more difficult issue is presented when the officers conducting the "knock and talk" are asked by the suspect, "Will you get a search warrant if I refuse?" Formulating an answer to that question is risky business. Some courts have said that consent is not voluntary if police officers answering the question make no distinction between seeking a search warrant and obtaining one.61 The Eighth Circuit generally holds that consent given in response to a threat to seek a warrant is voluntary,62 maintaining that the threat to obtain a search warrant is "only one factor in the totality of the circumstances inquiry."63 When officers go beyond merely telling a suspect that they will apply for a warrant by adding that if they seek a warrant they will be taking him to a holding cell or detaining him at his home in the meantime, those additional comments may slam the door of consent in the faces of the officers.64
False Statements
False statements or misrepresentations by police officers may or may not affect the voluntariness of consent. Lies as to the identity of the officers will not generally affect the consent. An undercover officer may falsely claim he is a drug customer wanting to come into the drug dealer's home to buy narcotics without affecting the voluntariness of the consent to enter the premises.65 Likewise, an undercover officer may obtain valid consensual entry into a suspect's home by falsely claiming she has car trouble and needs to use his telephone.66 False statements as to the scope, nature or purpose of the search can at times render a consent invalid, though. When a state trooper misleads a motorist by asking to "peek inside" the vehicle when he really intends a full search, the consent will be held invalid.67 When police falsely tell a suspect they want to inspect her home because she is a crime victim but really intend to look for marijuana, her consent will be found involuntary.68 On the other hand, an officer's request to examine defendant's shotgun on the ruse that he wants to verify whether it might have been used in a robbery, when his real purpose is to catch the defendant for being a felon in possession of a firearm, is a consensual search if the defendant is dumb enough to fetch it for him.69
Miranda Warnings
It has been held that an officer conducting a "knock and talk" need not give Miranda warnings when asking for permission to search a home since the doorway conversation is not custodial interrogation.70 Nor under federal law must officers specifically warn the suspect of any right to refuse the consent.71 Missouri follows federal law for Fourth Amendment purposes.72 At least one state, though, has provided that its own constitution provides a greater level of privacy protection and requires police officers doing "knock and talks" to specifically inform targets that they have the right to refuse consent.73
Third Party Consent
In order for a consent to be valid, it must have been given by a person with the authority to give consent to search the premises, or at least by someone with apparent authority to consent to the search.74 Thus, police conducting a "knock and talk" cannot obtain a valid consent from a man whose only connection to the premises is that he lives up the street and had just stopped by.75
Exigent Circumstances
Officers conducting a "knock and talk" may end up finding themselves in a situation where exigent circumstances allow them to enter the house warrantlessly to prevent the destruction of evidence.76 For instance, police officers responding to a call about a suspected methamphetamine laboratory who are met at the door by an overpowering chemical smell, together with a man whose hands are stained with red phosphorous and who is carrying a hot plate, who tries to slam the door in their faces, may pursue the man into the house.77 Likewise, police officers approaching a house for a "knock and talk" who glimpse through a window a group of men sitting at a table admiring a mound of white powder, foil wrappers and a handgun, may immediately enter the house warrantlessly once the men spot the officers and begin fleeing from the room.78 In such situations, exigent circumstances make it proper for the police to enter the premises, conduct a limited protective sweep, secure the scene, and apply for a search warrant for a more extensive search.79 Similarly, when police are conducting a "knock and talk" for drugs at a back door open to the public, and notice a man carrying a package sneaking out the front door, they have reasonable suspicion to make a Terry stop of that man.80 It has also been held that under the public safety exception to the requirement for Miranda warnings, an officer who walks up to a house to conduct a "knock and talk" and smells an overwhelming odor of ammonia and finds himself standing in a puddle of unknown liquid may ask the occupant of the house whether a fire hazard exists upon the premises and exactly what substance the officer has all over his shoes.81 At least one jurisdiction holds, nevertheless, that exigent circumstances do not allow police to kick in the door of a person who denies them entry on a "knock and talk" merely because he closed a shade on the door and was heard running away from the door (presumably to flush his drugs down a toilet) since "a warrantless entry of a house by law enforcement authorities, even based upon probable cause, cannot be justified by exigent circumstances of their own making."82
Conclusion
Although the phrase "knock and talk" was not used in any Missouri appellate case until 1998,83 the procedure was upheld by Missouri courts years before it acquired its newfangled name.84 By whatever label, a consent search of a home will continue to be a frequently utilized police procedure and one of the most often litigated suppression issues. All criminal practitioners need to be prepared to recognize and vigorously argue the Fourth Amendment issues inevitably presented in the wake of the dreaded knock upon the door.
Endnotes
1 When faced with the dreaded knock upon the door, the criminal element would be wise to heed the words of the poet Ogden Nash: "f called by a panther, don't anther." The Panther, in The Moon is Shining Bright as Day, ed. Ogden Nash (1953).
2 Frankfurter's comment was made in a letter to Chief Justice Earl Warren. Bernard Schwartz, Super Chief, Earl Warren and His Supreme Court, a Judicial Biography (1983), 266.
3 Franz Kafka, The Trial 1-3 (Alfred A. Knopf, Inc. 1992) (1925).
4 State v. Land, 806 P.2d 1156 (Or. App. 1991), is evidently the first appellate case to use the phrase "knock and talk."
5 U.S. v. Scroger, 98 F.3d 1256 (10th Cir. 1996); U.S. v. Taylor, 97 F.3d 1360 (10th Cir. 1996); U.S. v. Hyppolite, 65 F.3d 1151 (4th Cir. 1995); U.S. v. Heath, 58 F.3d 1271 (8th Cir. 1995); U.S. v. James, 40 F.3d 850 (7th Cir. 1994); U.S. v. Meza-Corrales, 991 F. Supp. 1169 (D. Ariz. 1997); U.S. v. Zertuche-Tobias, 953 F. Supp. 803 (S.D. Tex. 1996); U.S. v. Conner, 948 F. Supp. 821 (N.D. Iowa 1996); U.S. v. Fairchild, 943 F. Supp. 1174 (W.D. Mo. 1996); U.S. v. Miller, 933 F. Supp. 501 (M.D. N.C. 1996); U.S. v. Powell, 929 F. Supp. 231 (S.D. W. Va. 1996); U.S. v. Roberts, 928 F. Supp. 910 (W.D. Mo. 1996); U.S. v. Clarke, 925 F. Supp. 1433 (W.D. Mo. 1996); U.S. v. Woodard, 873 F. Supp. 535 (D. Kan. 1994), aff'd, 91 F.3d 160 (10th Cir. 1996); U.S. v. Cruz, 838 F. Supp. 535 (D. Utah 1993); People v. O'Hearn, 931 P.2d 1168 (Colo. 1997); State v. Green, 598 So. 2d 624 (La. App. 1992); State v. Krile, 976 S.W.2d 16 (Mo. App. W.D. 1998); State v. Vidales, 571 N.W.2d 117 (Neb. App. 1997); State v. Smith, 488 S.E.2d 210 (N.C. 1997); State v. Jenkins, 661 N.E.2d 806 (Ohio App. 1995); State v. Powelson, 961 P.2d 869 (Or. App. 1998); State v. Land, 806 P.2d 1156 (Or. App. 1991); Almaguer v. State, 960 S.W.2d 172 (Tex. App. 1997); State v. Ferrier, 960 P.2d 927 (Wash 1998.); State v. Faford, 910 P.2d 447 (Wash. 1996); City of Everett Police Department v. Real Property Known as 4827 268th St. N.W., Standwood, Snohomish County, 935 P.2d 650 (Wash. App. 1997); State v. Graffius, 871 P.2d 1115 (Wash. App. 1994); State v. Phillips, 563 N.W.2d 573 (Wis. App, 1997), aff'd, 577 N.W.2d 794 (Wis. 1998).
6 A Westlaw search for cases using the phrase "knock and talk" produced not only the 29 reported cases in the preceding footnote, but also 17 short unpublished opinions emblazoned with the warning that they are of no precedential value and should not be cited.
7 State v. Krile, 976 S.W.2d 16 (Mo. App. W.D. 1998).
8 Id.
9 State v. Smith, 488 S.E.2d 210, 212 (N.C. 1997).
10 U.S. v. Heath, 58 F.3d 1271 (8th Cir. 1995); U.S. v. Meza-Corrales, 991 F. Supp. 1169 (D. Ariz. 1997); U.S. v. Zertuche-Tobias, 953 F. Supp. 803, 811 (S.D. Tex. 1996); U.S. v. Miller, 933 F. Supp. 501 (M.D. N.C. 1996); U.S. v. Powell, 929 F. Supp. 231, 232 (S.D. W. Va. 1996); U.S. v. Cruz, 838 F. Supp. 535, 537 (D. Utah 1993); State v. Krile, 976 S.W.2d 16 (Mo. App. W.D. 1998); State v. Ferrier, 960 P.2d 927 (Wash. 1998); State v. Graffius, 871 P.2d 1115 (Wash. App. 1994).
11 U.S. v. Heath, 58 F.3d 1271 (8th Cir. 1995); U.S. v. James, 40 F.3d 850 (7th Cir. 1994); U.S. v. Miller, 933 F. Supp. 501 (M.D. N.C. 1996); U.S. v. Powell, 929 F. Supp. 231 (S.D. W. Va. 1996); U.S. v. Woodard, 873 F. Supp. 535 (D. Kan. 1994), aff'd, 91 F.3d 160 (10th Cir. 1996); People v. O'Hearn, 931 P.2d 1168 (Colo. 1997); State v. Green, 598 So. 2d 624 (La. App. 1992); Almaguer v. State, 960 S.W.2d 172 (Tex. App. 1997); State v. Phillips, 577 N.W.2d 794 (Wis. 1998).
12 U.S. v. Hyppolite, 65 F.3d 1151 (4th Cir. 1995); State v. Graffius, 871 P.2d 1115 (Wash. App. 1994).
13 U.S. v. Scroger, 98 F.3d 1256 (10th Cir. 1996).
14 Payton v. New York, 445 U.S. 573, 585 (1980); U.S. v. Miller, 933 F. Supp. 501, 504 (M.D. N.C. 1996); People v. O'Hearn, 931 P.2d 1168, 1173 (Colo. 1997); State v. Phillips, 577 N.W.2d 794, 801 (Wis. 1998).
15 Payton, 445 U.S. at 586; Miller, 933 F. Supp at 504.
16 Miller v. U.S., 357 U.S. 301, 307 (1958); U.S. v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991).
17 Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
18 William E. Ringel, Searches & Seizures, Arrests and Confessions, Section 9.1 (1998).
19 Schneckloth, 412 U.S. at 219; U.S. v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995).
20 Schneckloth v. Bustamonte, 412 U.S. 218, 227-28, 231-32 (1973).
21 State v. Johns, 679 S.W.2d 253, 261 (Mo. banc 1984).
22 Schneckloth v. Bustamonte, 412 U.S. 218 (1973); U.S. v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995); State v. Blair, 638 S.W.2d 739, 750 (Mo. banc 1982).
23 State v. Blair, 638 S.W.2d 739, 750 (Mo. banc 1982).
24 Id.
25 Id.
26 Id.
27 Id.
28 Id.
29 State v. Berry, 526 S.W.2d 92, 100 (Mo. App. S.D. 1975).
30 Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).
31 Id.
32 Id.
33 Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
34 Id.
35 Florida v. Bostick, 501 U.S. 429 (1991); Florida v. Royer, 460 U.S. 491, 497 (1983); State v. Scott, 926 S.W.2d 864, 868 (Mo. App. S.D. 1996).
36 Florida v. Royer, 460 U.S. 491 (1983).
37 Florida v. Bostick, 498 U.S. 1021 (1991).
38 State v. Scott, 926 S.W.2d 864 (Mo. App. S.D. 1996).
39 U.S. v. Woodard, 873 F. Supp. 535 (D. Kan. 1994), aff'd, 91 F.3d 160 (10th Cir. 1996). See generally Wayne R. LaFave, Search & Seizure, § 2.3(b) (3d ed. 1996); William E. Ringel, Searches & Seizures, Arrests and Confessions, § 9.3(b) (1998).
40 U.S. v. James, 40 F.3d 850, 862 (7th Cir. 1994); State v. Krile, 976 S.W.2d 16 (Mo. App. W.D. 1998); State v. Akers, 723 S.W.2d 9, 14-15 (Mo. App. W.D. 1986); State v. Graffius, 871 P.2d 1115 (Wash. App. 1994); State v. Green, 598 So. 2d 624, 626 (La. App. 1992).
41 State v. Seagull, 632 P.2d 44, 47 (Wash. 1981).
42 State v. Graffius, 871 P.2d 1115, 1119 (Wash. App. 1994).
43 State v. Krile, 976 S.W.2d 16 (Mo. App. W.D. 1998).
44 People v. O'Hearn, 931 P.2d 1168, 1174 (Colo. 1997).
45 State v. Phillips, 577 N.W.2d 794 (Wis. 1998).
46 U.S. v. Zertuche-Tobias, 953 F. Supp. 803, 811 (S.D. Tex. 1996).
47 State v. Ferrier, 960 P.2d 927 (Wash. 1998).
48 Id.
49 U.S. v. Heath, 58 F.3d 1271, 1276 (8th Cir. 1995); U.S. v. Cruz, 838 F. Supp. 535, 537 (D. Utah 1993).
50 U.S. v. Heath, 58 F.3d 1271, 1273 (8th Cir. 1995); U.S. v. Meza-Corrales, 991 F. Supp. 1169, 1171 (D. Ariz. 1997); U.S. v. Zertuche-Tobias, 953 F. Supp. 803, 812 (S.D. Tex. 1996); U.S. v. Cruz, 838 F. Supp. 535, 538 (D. Utah 1993); State v. White, 755 S.W.2d 363, 365 (Mo. App. E.D. 1988); State v. Land, 806 P.2d 1156, 1157 (Or. App. 1991); Almaguer v. State, 960 S.W.2d 172, 174 (Tex. App. 1997); State v. Ferrier, 960 P.2d 927 (Wash 1998).
51 U.S. v. Miller, 933 F. Supp. 501 (M.D. N. C. 1996); People v. O'Hearn, 931 P.2d 1168, 1173 (Colo. 1997). In one recent case, law enforcement officers won the credibility issue, but the concurring judge nevertheless noted that their "saccharine account" of events left "a bitter aftertaste." U.S. v. Heath, 58 F.3d 1271, 1276 (8th Cir. 1995). This judicial barb could have been avoided by using a tape recorder.
52 519 U.S. 33 (1996).
53 State v. Betcher, 1992 WL 231657 (Minn. App.).
54 U.S. v. Conner, 948 F. Supp. 821, 833-835 (N.D. Iowa 1996).
55 Florida v. Jimeno, 500 U.S. 248, 249-252 (1991); U.S. v. Woodard, 873 F. Supp. 535, 541 (D. Kan. 1994), aff'd, 91 F.3d 160 (10th Cir. 1996); State v. Hyland, 840 S.W.2d 219, 222 (Mo. banc 1992).
56 Woodard, 873 F. Supp. at 541.
57 Mason v. Pulliam, 557 F.2d 426 (5th Cir. 1977); John Wesley Hall, Jr., Search and Seizure, § 8:55 (2d ed. 1991). Of course, what is found before consent is revoked can later provide probable cause for a subsequent search. See State v. Garza, 853 S.W.2d 462 (Mo. App. S.D. 1993).
58 445 F.2d 126 (7th Cir. 1971).
59 U.S. v. Scroger, 98 F.3d 1256 (10th Cir. 1996).
60 Bumper v. North Carolina, 391 U.S. 543 (1968).
61 U.S. v. Faruolo, 506 F.2d 490 (2d Cir. 1974); U.S. v. Boukater, 409 F.2d 537 (5th Cir. 1969).
62 U.S. v. Larson, 978 F.2d 1021 (8th Cir. 1992); U.S. v. Raines, 536 F.2d 796 (8th Cir. 1976). See also U.S. v. Meza-Corrales, 991 F. Supp. 1169, 1173 (D. Ariz. 1997); State v. Land, 806 P.2d 1156 (Or. App. 1991); Almaguer v. State, 960 S.W.2d 172, 176, n. 4 (Tex. App. 1997).
63 U.S. v. Severe, 29 F.3d 444 (8th Cir. 1994).
64 State v. Powelson, 961 P.2d 869 (Or. App. 1998).
65 Lewis v. U.S., 385 U.S. 206 (1966).
66 People v. Catania, 398 N.W.2d 343 (Mich. 1986), reversing, 366 N.W.2d 38 (Mich. App. 1985).
67 State v. Lorenzo, 743 S.W.2d 529 (Mo. App. W.D. 1987).
68 People v. Daugherty, 514 N.E.2d 228 (Ill. App. 1987).
69 U.S. v. Andrews, 746 F.2d 247 (5th Cir. 1984).
70 U.S. v. Meza-Corrales, 991 F. Supp. 1169, 1173 (D. Ariz. 1997); U.S. v. Zertuche-Tobias, 953 F. Supp. 803, 829 (S.D. Tex. 1996); State v. Pena, 784 S.W.2d 883 (Mo. App. W.D. 1990); Almaguer v. State, 960 S.W.2d 172 (Tex. App. 1997). But see People v. O'Hearn, 931 P.2d 1168, 1175-1176 (Colo. 1997).
71 Schneckloth v. Bustamonte, 412 U.S. 218 (1973); U.S. v. Woodard, 873 F. Supp. 535, 540 (D. Kan. 1994), aff'd, 91 F.3d 160 (10th Cir. 1996); State v. Phillips, 577 N.W.2d 794, 804 (Wis. 1998).
72 State v. Jones, 865 S.W.2d 658 (Mo. banc 1993).
73 State v. Ferrier, 960 P.2d 927 (Wash. 1998).
74 Illinois v. Rodriguez, 497 U.S. 177 (1990).
75 U.S. v. Powell, 929 F. Supp. 231 (S.D. W. Va. 1996).
76 U.S. v. Tobin, 923 F.2d 1506 (11th Cir. 1991); U.S. v. Peters, 912 F.2d 208 (8th Cir. 1990); State v. Roberts, 957 S.W.2d 449 (Mo. App. W.D. 1997).
77 U.S. v. Scroger, 98 F.3d 1256 (10th Cir. 1996).
78 U.S. v. James, 40 F.3d 850 (7th Cir. 1994).
79 U.S. v. Scroger, 98 F.3d 1256 (10th Cir. 1996). In U.S. v. Meza-Corrales, 991 F. Supp. 1169 (D. Ariz. 1997), the defendant consented to a full search after the completion of the protective sweep. See also State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975).
80 State v. Green, 598 So. 2d 624 (La. App. 1992); Terry v. Ohio, 392 U.S. 1 (1968).
81 U.S. v. Fairchild, 943 F. Supp. 1174 (W.D. Mo. 1996).
82 State v. Jenkins, 661 N.E.2d 806, 810 (Ohio App. 1995).
83 State v. Krile, 976 S.W.2d 16 (Mo. App. W.D. 1998).
84 State v. White, 755 S.W.2d 363 (Mo. App. E.D. 1988); State v. Akers, 723 S.W.2d 9 (Mo. App. W.D. 1986).
Mr. Swingle is the prosecuting attorney of Cape Girardeau County. He is a 1980 graduate of the University of Missouri-Columbia School of Law. Mr. Zoellner is an assistant attorney general for the State of Missouri employed in the Attorney General's Methamphetamine Prosecution Strike Force. He is a 1993 graduate of the University of Missouri-Columbia School of Law. The opinions expressed in this article are not necessarily the opinions of the Office of the Attorney General.
1999, H. Morley Swingle and Kevin M. Zoellner
JOURNAL OF THE MISSOURI BAR
Volume 55 - No.1 - January-February 1999
bigbaldbulldog
Banana
Great read.. Great info... Great advice!!!
Better safe then sorry is always the best advice I can give. Don't be paranoid but be careful.
Better safe then sorry is always the best advice I can give. Don't be paranoid but be careful.
Southern Comfor
Banana
GREAT ADVICE....
"Anywayz the recent busts are going to be leading to what is called "Knock and talk" contacts by law enforcement. If you or anyone you know has a valid concern about your name or address appearing on some seized lab list, and you have ordered a sizeable order, you can expect the people who placed the largest orders are highest on the list."
What would be an order small enough to not worry about it, but too much? Would 20 bottles be guaranteeing a knock at your door?
"Anywayz the recent busts are going to be leading to what is called "Knock and talk" contacts by law enforcement. If you or anyone you know has a valid concern about your name or address appearing on some seized lab list, and you have ordered a sizeable order, you can expect the people who placed the largest orders are highest on the list."
What would be an order small enough to not worry about it, but too much? Would 20 bottles be guaranteeing a knock at your door?
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