Source: Orlando Weekly
1/9/2003
Knock and talk
discusses the latest techniques in the use of a narcotics interview to gain consensual search, make plain-view seizures, and develop probable cause for search warrants.
In the early evening of May 18, 2000, a small group of University of Central Florida freshmen were hanging out in their apartment in the massive Knight's Crossing complex, enjoying a basketball game over Bud Lites and puffs on a marijuana pipe. Since the four roommates often had friends over, nobody thought much about a knock on the door. When Jason (who asked that his full name not be used) answered the door, he found a nondescript, older man asking for a roommate named Michael (name also withheld on request). When Jason turned around to call for his roommate, the man walked in the door, followed by three other people.
All four of the uninvited guests were members of the Orange County Sheriff's Narcotics Unit. The officers, led by Sgt. George Ellis and Detective Ron Batista, were responding to an anonymous tip. They told the students they had the authority to enter the apartment without a warrant because they smelled pot. Police separated the roommates and told them all the same thing: Nobody would be arrested if all the drugs in the apartment were handed over. Since they'd already smoked most of the pot, the four roommates produced less than 20 grams, equal to the weight of 20 packets of sweetener, and a single tablet of Clonazepam, a generic form of the anti-anxiety drug Xanax.
Police confiscated the drugs and took down everyone's names. Then they asked for the names of the people who sold the roommates the pot. The officers said they'd call back in a week to ask for additional information.
In turn, the roommates wanted something from the cops. They asked police to pose for pictures with the bongs and weed before the paraphernalia was taken away. "We were all intoxicated," says Keith Johnson, a UCF business management student and one of the four roommates. "We were about to lose our toys so we asked to take pictures."
Incredibly, police let them. Johnson fired off pictures of police holding up bongs and laughing with Jason, who draped an arm over an officer's shoulder.
But the pleasantries ended a week later when police called back. They wanted the dealers' names. The roommates refused. Nothing happened for more than a year.
Then on May 1, 2001, police, executing a search warrant, rousted Michael out of bed and took him to the Orange County Correctional Facility for drug possession, based on the May 2000 raid. Johnson turned himself in the next day.
Michael paid an attorney $2,000 to help him plead no contest and get deferred into probation and drug counseling. Johnson, on the other hand, was too broke to hire an attorney. His parents cut him off financially when he told them he'd been busted for drugs. The court assigned a public defender, Max Smith, who decided to challenge what he saw as an armed home invasion by police, two of whom were wearing hoods over their heads. The case against Johnson was dropped when police failed to appear at a hearing to suppress evidence, leading him to believe the entire episode was illegal. "We were pretty intimidated," Johnson says. "We weren't sure what our rights were. They weren't explaining any rights to us. They were trying to coerce us into helping them out."
Squad Five
What happened to the UCF students is an everyday occurrence in Central Florida. The Orange County Sheriff's Office alone performs an estimated 300 such encounters each month on unsuspecting residents.
Cops call the technique the "knock-and-talk," or "knock and announce."
It sounds harmless.
Police simply walk up to a residence, knock on the door, and ask to look around.
"People will let us come in and search even though they have drugs in the house," says Capt. Bob Gregory of the Orlando Police Department, "which is kind of bizarre if you think about it."
In fact, the knock-and-talk has become so popular in Orange County that the sheriff's office has an entire squad dedicated solely to the practice, a nine-deputy unit known as Squad Five, or the Tip-Sheet Squad, referring to the anonymous tips called to the county crime line.
The knock-and-talk evolved from routine street encounters when police stop and question a suspicious person, and from traffic stops during which police ask to search a car. By the early 1990s, as the war on drugs escalated, police began to receive so many confidential tips that they had to form special undercover squads to deal with them. In 1997, the Orange County Sheriff's Office reorganized its Special Investigations Division to form Squad Five.
The squad gets its information from the crime line, other police departments, organizations such as MADD and informants outside the county. But most of the tips come from the average person in the street -- that is, from your neighbors.
"Most of the time it's just tips that come through the people that live in a neighborhood," says Deputy Kevin Marcum, a 14-year Orange County veteran, testifying during a deposition taken last year. "They see a lot of cars across the street or a lot of cars pulling up for short stays and then leaving. Then they call the sheriff's office."
A crime analyst logs the tip into a computer and classifies it according to priority. Specific knowledge of a crime -- having been inside a house where drug activity occurred, for example -- is a higher priority than a report of suspicious arrivals and departures. If Squad Five is too busy, it will farm the tip to the narcotics unit or another squad. The sheriff's office typically responds to anonymous complaints within two weeks.
Officers often try other investigative techniques before the knock- and-talk. For example, they might do a "trash pull," which means rummaging through your garbage for evidence of drugs or other criminal activity. According to state law, police must have two successful trash pulls before the evidence will be accepted at trial.
The best talkers on Earth
Angelo Nieves, the commander of Orange County Sheriff's Squad Five, declined to be interviewed for this story. He also would not allow Orlando Weekly to ride along with his officers. The sheriff's office also refused to turn over the tip sheets on which knock-and-talks are based, erroneously citing an exemption to the state's public-records law involving ongoing police investigations. (The Weekly asked for closed tip-sheet investigations.) Consequently, it is impossible to determine the number of unsuccessful searches conducted by Squad Five.
Why all the secrecy? Because law enforcement is counting on you not to know your rights; especially when they want to enter your home without a warrant. "In a society where everyone knew their rights, this practice would not constitute a big problem," says Jamin Raskin, a constitutional-law professor at American University in Washington, D.C. "But in America today, the public schools don't teach the Constitution or the underlying rights it provides us. The police take advantage of a pervasive constitutional illiteracy, which is a threat to civil liberties."
Although the Orange County Sheriff's Office didn't want to discuss the knock-and-talk, Lt. Victor Uvalle, a veteran undercover Orlando Police Department drug officer, agreed to outline how and when police apply the technique.
Knock-and-talk is often the best investigative method, because it is the most honest, says Uvalle. What could be more straightforward than telling a person he is suspected of a crime? Uvalle also says the knock-and-talk is often initiated for allegations other than drug use. Suspected child abuse is an example. Police must ensure the child is free from bruises and is generally content in his home environment before they can clear a case, so they knock on the door and look at the child and his parents.
Uvalle cited a drug-related instance in which he received a tip that a couple teenage boys were selling pot out of their house. Uvalle drove past the home and sensed that it wasn't a typical drug haven. So he knocked on the front door and spoke to the boys' parents, who allowed Uvalle to search the teenagers' room, where he found several joints.
Of course, Uvalle has also had to resort to the knock-and-talk when there wasn't enough evidence to convince a judge that a warrant was necessary. An anonymous tip by itself, for example, will persuade few magistrates to sign a search warrant. So if surveillance or trash pulls fail to produce evidence, Uvalle heads for the front door. "If you don't have any results from your other policing techniques, you go for broke," he says.
That means sending out three to six plainclothes agents, some of whom may be wearing "hit gear": vests or smocks, masks over their faces, an I.D. badge dangling from their necks and gun belts on their hips. The effect is twofold: Police want you to be intimidated enough to let them in, but they don't want to pose such a threat that suspects clam up.
"The police are very, very low-key," says Neal McShane, a defense attorney who was formerly counsel for the Metropolitan Bureau of Investigation, a special Orange County anti-crime unit. "They are above-board and professional. They're not obnoxious. There's no patrol cars in the street. They don't come with blue lights flashing. They don't wear a uniform. They come in street clothes. They are the best talkers on the face of the Earth. I've told some of them they should be selling cars."
This is not America
But the knock-and-talk is more pernicious than it sounds. Consider the fact that most knock-and-talks are the result of anonymous tips to the county's crime line. That means the potential for abuse and revenge is built into the system. "I ask anybody who thinks this is a pleasant experience to give me your address, and I'll make a little phone call," says First Amendment attorney Steve Mason, who is representing an Orlando woman arrested on drug-possession charges resulting from a knock-and-talk. "Give me your name and address, and I'll take it from there. I'll give you a lesson first-hand how lovely this thing is."
Mason's client is Lynn Miller, who was walking out of the front door of her house in the Conway Gardens neighborhood March 14, 2001, when three plainclothes Orange County Sheriff's officers asked to speak with her. As David Alvarado, the lead Orange County agent, explained to Miller, she was suspected of drug activity after the county Narcotics Unit received an anonymous tip. Alvarado -- reportedly an very smooth talker -- told Miller it was better if the two of them spoke inside the house so her neighbors wouldn't see what was going on. Meanwhile, two officers remained outside with Miller's boyfriend.
Once inside, Alvarado, a nine-year sheriff's officer, asked Miller if she had any drugs. "She put her head down and didn't answer me," Alvarado said in a deposition. "I asked again, 'Are there any drugs in your residence. I am here to investigate a complaint.'" Miller finally said yes, went to her room and pulled a cellophane bag containing marijuana from her purse. Alvarado asked if Miller had any other drugs. This time she pulled a crack pipe and a small cocaine rock from a cigarette pack in her purse.
Alvarado jotted down Miller's identification, had her fill out a form saying she'd consented to the search and left without rummaging through her home. Four months later she was arrested, tried and convicted in Orange County Circuit Court. Mason, however, is appealing Miller's case to the Fifth District Court of Appeals. His aim is to indict the entire knock-and-talk procedure by showing that the function of the Tip-Sheet Squad is to circumvent the Fourth Amendment and state laws against illegal search and seizure. His hope is that, by ruling in Miller's favor, the appeals court will send a message to Central Florida police departments that the courts will suppress evidence obtained via the knock-and-talk. "This technique is a devious, institutional design that serves no other purpose than to invade people's homes," Mason says. "One way or another, we want to put a lid on this stuff."
Mason is counting on the appeals court to rule more stringently than it did in a case involving a woman named Kelly Hosey.
In 1993, a Miami police officer spotted Hosey running toward a northbound train in a manner that led him to believe she was a drug courier. Three Volusia County narcotics officers caught up with Hosey on the train in DeLand. They knocked on the door of her compartment at 11 p.m. and asked to search her luggage. She agreed. The cops found more than 200 grams of cocaine stuffed in a pair of socks.
Hosey was convicted of drug trafficking at trial but appealed on grounds her privacy was violated. She lost 2-1.
In his dissenting opinion, Fifth District Court of Appeals Judge Earle W. Peterson, calling Hosey's search "highly intrusive and highly coercive," condemned the practice of the knock-and-talk as anti-democratic, correctly warning that upholding Hosey's conviction could expand the practice from Florida's trains to Florida's homes. "Anywhere, anytime, day or night, without even a reasonable suspicion, the citizens of Florida can be roused by a group of police officers on a fishing expedition for contraband and asking for 'voluntary' consent to a search of the home," Peterson wrote. "By its opinion, the majority places the final nail in the coffin of a citizen's expectation of privacy. In this 'anything goes' war on drugs, random knocks on the doors of our citizens' homes seeking 'consent' to search for drugs cannot be far away. This is not America."
Peterson put the words "voluntary" and "consent" into quotes because he, like many concerned with the erosion of civil liberties, is not convinced the searches are consensual. More often than not, somebody is too afraid to tell police no.
The legal test for consent as defined by the U.S. Supreme Court is whether a "reasonable person" would assume he has the ability to deny a search of his home. But "reasonable person" is obviously a relevant term. A reasonable Supreme Court justice, ruling on the knock-and-talk, is in a much better position to overlook the status of police officers than many of the reasonable blue-collar workers police often encounter. "Justices on the Supreme Court have a very different relationship with law enforcement than the rest of us do," says Deborah Young, a former U.S. assistant attorney based in Washington, D.C. who now teaches law at Samford University in Alabama. "The Supreme Court has its own police department. Justices are used to police serving them and chauffeuring them. It's a very different experience." And, Young adds, Supreme Court justices typically do not have a criminal-law background, so their sympathies have tended toward more state control.
Consequently, the Rehnquist court has instituted dozens of exceptions to the Fourth Amendment, including allowing evidence from defective, misleading search warrants to be admissible in court as long as police have made a "good-faith" effort to provide the facts. "What has happened over the last 20 years or so is that the court has recognized so many exemptions to the warrant requirement that police now feel they can search a home without obtaining one, then hope they are legally justified," says assistant public defender Paul C. Helm, who is based in Bartow.
The court has never required police to give a Miranda-type warning for home searches as they must when making an arrest. That raises the question whether the searches are truly consensual, or whether a homeowner is merely yielding to institutional power.
"Are people really consenting or are they acquiescing to authority," asks Mike Becker, an assistant public defender in Daytona Beach. "That becomes a thin line. If there were six cops with masks and weapons at your door, would a reasonable person believe they could say no to a search, especially if they weren't told they could say no?"
Not only are police not obligated to warn people of their rights, they often stretch the truth to gain access to homes.
As in the case of the UCF students, deputies will say that nobody will be arrested. What they mean is that no one will be charged until the paperwork is filed through the state attorney's office.
Criminal defense attorney Joe Harrington had a client who was arrested for selling prescription pills out of a pizza parlor. The client surrendered the drugs after cops said they wouldn't arrest him. Two months later, the pizza driver was hauled to jail on the drug trafficking charges he admitted to during the knock-and-talk. "The cops play fast and lose with the rules," says Harrington.
For example, when police are told they can't come into a home without a warrant, the cops shift gears and say they're coming in because of a bong in plain view or the smell of pot in the air, both of which are legal reasons to search a home without a warrant. "There are exceptions to the search-warrant requirement like plain view or plain odor or plain smell," Harrington says. "If you tell a cop he can't come in without a warrant, he'll say he smelled pot coming from your house. You see it all the time in police reports: 'A wafting odor nearly knocked me over when they opened the door.' The police know exactly what they are doing."
Just say no
Cops at the door? The best defense for home dwellers involved in a knock-and-talk is to know the search-and seizure-law. (A home dweller, by the way, includes those renting apartments or hotel rooms, and mobile-home owners.) Simply put, nobody has the right to be on your property unless they have a signed warrant from a judge.
If police come to your house, don't answer the door. Or, if you feel you must address officers, step outside and shut the door behind you. Lock yourself out, if you must. Don't forget police can enter a home if they smell marijuana burning or see paraphernalia in plain view.
These simple tips might give piece of mind. But the price of privacy is constant vigilance. In the land of the free and home of the brave, your liberty is only as secure as the next knock on the door.
1/9/2003
Knock and talk
discusses the latest techniques in the use of a narcotics interview to gain consensual search, make plain-view seizures, and develop probable cause for search warrants.
In the early evening of May 18, 2000, a small group of University of Central Florida freshmen were hanging out in their apartment in the massive Knight's Crossing complex, enjoying a basketball game over Bud Lites and puffs on a marijuana pipe. Since the four roommates often had friends over, nobody thought much about a knock on the door. When Jason (who asked that his full name not be used) answered the door, he found a nondescript, older man asking for a roommate named Michael (name also withheld on request). When Jason turned around to call for his roommate, the man walked in the door, followed by three other people.
All four of the uninvited guests were members of the Orange County Sheriff's Narcotics Unit. The officers, led by Sgt. George Ellis and Detective Ron Batista, were responding to an anonymous tip. They told the students they had the authority to enter the apartment without a warrant because they smelled pot. Police separated the roommates and told them all the same thing: Nobody would be arrested if all the drugs in the apartment were handed over. Since they'd already smoked most of the pot, the four roommates produced less than 20 grams, equal to the weight of 20 packets of sweetener, and a single tablet of Clonazepam, a generic form of the anti-anxiety drug Xanax.
Police confiscated the drugs and took down everyone's names. Then they asked for the names of the people who sold the roommates the pot. The officers said they'd call back in a week to ask for additional information.
In turn, the roommates wanted something from the cops. They asked police to pose for pictures with the bongs and weed before the paraphernalia was taken away. "We were all intoxicated," says Keith Johnson, a UCF business management student and one of the four roommates. "We were about to lose our toys so we asked to take pictures."
Incredibly, police let them. Johnson fired off pictures of police holding up bongs and laughing with Jason, who draped an arm over an officer's shoulder.
But the pleasantries ended a week later when police called back. They wanted the dealers' names. The roommates refused. Nothing happened for more than a year.
Then on May 1, 2001, police, executing a search warrant, rousted Michael out of bed and took him to the Orange County Correctional Facility for drug possession, based on the May 2000 raid. Johnson turned himself in the next day.
Michael paid an attorney $2,000 to help him plead no contest and get deferred into probation and drug counseling. Johnson, on the other hand, was too broke to hire an attorney. His parents cut him off financially when he told them he'd been busted for drugs. The court assigned a public defender, Max Smith, who decided to challenge what he saw as an armed home invasion by police, two of whom were wearing hoods over their heads. The case against Johnson was dropped when police failed to appear at a hearing to suppress evidence, leading him to believe the entire episode was illegal. "We were pretty intimidated," Johnson says. "We weren't sure what our rights were. They weren't explaining any rights to us. They were trying to coerce us into helping them out."
Squad Five
What happened to the UCF students is an everyday occurrence in Central Florida. The Orange County Sheriff's Office alone performs an estimated 300 such encounters each month on unsuspecting residents.
Cops call the technique the "knock-and-talk," or "knock and announce."
It sounds harmless.
Police simply walk up to a residence, knock on the door, and ask to look around.
"People will let us come in and search even though they have drugs in the house," says Capt. Bob Gregory of the Orlando Police Department, "which is kind of bizarre if you think about it."
In fact, the knock-and-talk has become so popular in Orange County that the sheriff's office has an entire squad dedicated solely to the practice, a nine-deputy unit known as Squad Five, or the Tip-Sheet Squad, referring to the anonymous tips called to the county crime line.
The knock-and-talk evolved from routine street encounters when police stop and question a suspicious person, and from traffic stops during which police ask to search a car. By the early 1990s, as the war on drugs escalated, police began to receive so many confidential tips that they had to form special undercover squads to deal with them. In 1997, the Orange County Sheriff's Office reorganized its Special Investigations Division to form Squad Five.
The squad gets its information from the crime line, other police departments, organizations such as MADD and informants outside the county. But most of the tips come from the average person in the street -- that is, from your neighbors.
"Most of the time it's just tips that come through the people that live in a neighborhood," says Deputy Kevin Marcum, a 14-year Orange County veteran, testifying during a deposition taken last year. "They see a lot of cars across the street or a lot of cars pulling up for short stays and then leaving. Then they call the sheriff's office."
A crime analyst logs the tip into a computer and classifies it according to priority. Specific knowledge of a crime -- having been inside a house where drug activity occurred, for example -- is a higher priority than a report of suspicious arrivals and departures. If Squad Five is too busy, it will farm the tip to the narcotics unit or another squad. The sheriff's office typically responds to anonymous complaints within two weeks.
Officers often try other investigative techniques before the knock- and-talk. For example, they might do a "trash pull," which means rummaging through your garbage for evidence of drugs or other criminal activity. According to state law, police must have two successful trash pulls before the evidence will be accepted at trial.
The best talkers on Earth
Angelo Nieves, the commander of Orange County Sheriff's Squad Five, declined to be interviewed for this story. He also would not allow Orlando Weekly to ride along with his officers. The sheriff's office also refused to turn over the tip sheets on which knock-and-talks are based, erroneously citing an exemption to the state's public-records law involving ongoing police investigations. (The Weekly asked for closed tip-sheet investigations.) Consequently, it is impossible to determine the number of unsuccessful searches conducted by Squad Five.
Why all the secrecy? Because law enforcement is counting on you not to know your rights; especially when they want to enter your home without a warrant. "In a society where everyone knew their rights, this practice would not constitute a big problem," says Jamin Raskin, a constitutional-law professor at American University in Washington, D.C. "But in America today, the public schools don't teach the Constitution or the underlying rights it provides us. The police take advantage of a pervasive constitutional illiteracy, which is a threat to civil liberties."
Although the Orange County Sheriff's Office didn't want to discuss the knock-and-talk, Lt. Victor Uvalle, a veteran undercover Orlando Police Department drug officer, agreed to outline how and when police apply the technique.
Knock-and-talk is often the best investigative method, because it is the most honest, says Uvalle. What could be more straightforward than telling a person he is suspected of a crime? Uvalle also says the knock-and-talk is often initiated for allegations other than drug use. Suspected child abuse is an example. Police must ensure the child is free from bruises and is generally content in his home environment before they can clear a case, so they knock on the door and look at the child and his parents.
Uvalle cited a drug-related instance in which he received a tip that a couple teenage boys were selling pot out of their house. Uvalle drove past the home and sensed that it wasn't a typical drug haven. So he knocked on the front door and spoke to the boys' parents, who allowed Uvalle to search the teenagers' room, where he found several joints.
Of course, Uvalle has also had to resort to the knock-and-talk when there wasn't enough evidence to convince a judge that a warrant was necessary. An anonymous tip by itself, for example, will persuade few magistrates to sign a search warrant. So if surveillance or trash pulls fail to produce evidence, Uvalle heads for the front door. "If you don't have any results from your other policing techniques, you go for broke," he says.
That means sending out three to six plainclothes agents, some of whom may be wearing "hit gear": vests or smocks, masks over their faces, an I.D. badge dangling from their necks and gun belts on their hips. The effect is twofold: Police want you to be intimidated enough to let them in, but they don't want to pose such a threat that suspects clam up.
"The police are very, very low-key," says Neal McShane, a defense attorney who was formerly counsel for the Metropolitan Bureau of Investigation, a special Orange County anti-crime unit. "They are above-board and professional. They're not obnoxious. There's no patrol cars in the street. They don't come with blue lights flashing. They don't wear a uniform. They come in street clothes. They are the best talkers on the face of the Earth. I've told some of them they should be selling cars."
This is not America
But the knock-and-talk is more pernicious than it sounds. Consider the fact that most knock-and-talks are the result of anonymous tips to the county's crime line. That means the potential for abuse and revenge is built into the system. "I ask anybody who thinks this is a pleasant experience to give me your address, and I'll make a little phone call," says First Amendment attorney Steve Mason, who is representing an Orlando woman arrested on drug-possession charges resulting from a knock-and-talk. "Give me your name and address, and I'll take it from there. I'll give you a lesson first-hand how lovely this thing is."
Mason's client is Lynn Miller, who was walking out of the front door of her house in the Conway Gardens neighborhood March 14, 2001, when three plainclothes Orange County Sheriff's officers asked to speak with her. As David Alvarado, the lead Orange County agent, explained to Miller, she was suspected of drug activity after the county Narcotics Unit received an anonymous tip. Alvarado -- reportedly an very smooth talker -- told Miller it was better if the two of them spoke inside the house so her neighbors wouldn't see what was going on. Meanwhile, two officers remained outside with Miller's boyfriend.
Once inside, Alvarado, a nine-year sheriff's officer, asked Miller if she had any drugs. "She put her head down and didn't answer me," Alvarado said in a deposition. "I asked again, 'Are there any drugs in your residence. I am here to investigate a complaint.'" Miller finally said yes, went to her room and pulled a cellophane bag containing marijuana from her purse. Alvarado asked if Miller had any other drugs. This time she pulled a crack pipe and a small cocaine rock from a cigarette pack in her purse.
Alvarado jotted down Miller's identification, had her fill out a form saying she'd consented to the search and left without rummaging through her home. Four months later she was arrested, tried and convicted in Orange County Circuit Court. Mason, however, is appealing Miller's case to the Fifth District Court of Appeals. His aim is to indict the entire knock-and-talk procedure by showing that the function of the Tip-Sheet Squad is to circumvent the Fourth Amendment and state laws against illegal search and seizure. His hope is that, by ruling in Miller's favor, the appeals court will send a message to Central Florida police departments that the courts will suppress evidence obtained via the knock-and-talk. "This technique is a devious, institutional design that serves no other purpose than to invade people's homes," Mason says. "One way or another, we want to put a lid on this stuff."
Mason is counting on the appeals court to rule more stringently than it did in a case involving a woman named Kelly Hosey.
In 1993, a Miami police officer spotted Hosey running toward a northbound train in a manner that led him to believe she was a drug courier. Three Volusia County narcotics officers caught up with Hosey on the train in DeLand. They knocked on the door of her compartment at 11 p.m. and asked to search her luggage. She agreed. The cops found more than 200 grams of cocaine stuffed in a pair of socks.
Hosey was convicted of drug trafficking at trial but appealed on grounds her privacy was violated. She lost 2-1.
In his dissenting opinion, Fifth District Court of Appeals Judge Earle W. Peterson, calling Hosey's search "highly intrusive and highly coercive," condemned the practice of the knock-and-talk as anti-democratic, correctly warning that upholding Hosey's conviction could expand the practice from Florida's trains to Florida's homes. "Anywhere, anytime, day or night, without even a reasonable suspicion, the citizens of Florida can be roused by a group of police officers on a fishing expedition for contraband and asking for 'voluntary' consent to a search of the home," Peterson wrote. "By its opinion, the majority places the final nail in the coffin of a citizen's expectation of privacy. In this 'anything goes' war on drugs, random knocks on the doors of our citizens' homes seeking 'consent' to search for drugs cannot be far away. This is not America."
Peterson put the words "voluntary" and "consent" into quotes because he, like many concerned with the erosion of civil liberties, is not convinced the searches are consensual. More often than not, somebody is too afraid to tell police no.
The legal test for consent as defined by the U.S. Supreme Court is whether a "reasonable person" would assume he has the ability to deny a search of his home. But "reasonable person" is obviously a relevant term. A reasonable Supreme Court justice, ruling on the knock-and-talk, is in a much better position to overlook the status of police officers than many of the reasonable blue-collar workers police often encounter. "Justices on the Supreme Court have a very different relationship with law enforcement than the rest of us do," says Deborah Young, a former U.S. assistant attorney based in Washington, D.C. who now teaches law at Samford University in Alabama. "The Supreme Court has its own police department. Justices are used to police serving them and chauffeuring them. It's a very different experience." And, Young adds, Supreme Court justices typically do not have a criminal-law background, so their sympathies have tended toward more state control.
Consequently, the Rehnquist court has instituted dozens of exceptions to the Fourth Amendment, including allowing evidence from defective, misleading search warrants to be admissible in court as long as police have made a "good-faith" effort to provide the facts. "What has happened over the last 20 years or so is that the court has recognized so many exemptions to the warrant requirement that police now feel they can search a home without obtaining one, then hope they are legally justified," says assistant public defender Paul C. Helm, who is based in Bartow.
The court has never required police to give a Miranda-type warning for home searches as they must when making an arrest. That raises the question whether the searches are truly consensual, or whether a homeowner is merely yielding to institutional power.
"Are people really consenting or are they acquiescing to authority," asks Mike Becker, an assistant public defender in Daytona Beach. "That becomes a thin line. If there were six cops with masks and weapons at your door, would a reasonable person believe they could say no to a search, especially if they weren't told they could say no?"
Not only are police not obligated to warn people of their rights, they often stretch the truth to gain access to homes.
As in the case of the UCF students, deputies will say that nobody will be arrested. What they mean is that no one will be charged until the paperwork is filed through the state attorney's office.
Criminal defense attorney Joe Harrington had a client who was arrested for selling prescription pills out of a pizza parlor. The client surrendered the drugs after cops said they wouldn't arrest him. Two months later, the pizza driver was hauled to jail on the drug trafficking charges he admitted to during the knock-and-talk. "The cops play fast and lose with the rules," says Harrington.
For example, when police are told they can't come into a home without a warrant, the cops shift gears and say they're coming in because of a bong in plain view or the smell of pot in the air, both of which are legal reasons to search a home without a warrant. "There are exceptions to the search-warrant requirement like plain view or plain odor or plain smell," Harrington says. "If you tell a cop he can't come in without a warrant, he'll say he smelled pot coming from your house. You see it all the time in police reports: 'A wafting odor nearly knocked me over when they opened the door.' The police know exactly what they are doing."
Just say no
Cops at the door? The best defense for home dwellers involved in a knock-and-talk is to know the search-and seizure-law. (A home dweller, by the way, includes those renting apartments or hotel rooms, and mobile-home owners.) Simply put, nobody has the right to be on your property unless they have a signed warrant from a judge.
If police come to your house, don't answer the door. Or, if you feel you must address officers, step outside and shut the door behind you. Lock yourself out, if you must. Don't forget police can enter a home if they smell marijuana burning or see paraphernalia in plain view.
These simple tips might give piece of mind. But the price of privacy is constant vigilance. In the land of the free and home of the brave, your liberty is only as secure as the next knock on the door.
Last edited:
