Wednesday, April 17, 2019

Knock-and-talks: Not always a free ticket for law enforcement

Knock-and-talks are fine, right? And that's because answering the door in response to knocking is a consensual act, right? This is true, but only to a point. And that point was well made by E.D. Mich. Judge Goldsmith this month in United States v. Mills, et al., No. 16-cr-20460, ___ F.Supp. 3d ___, 2019 WL 1510958 (E.D. Mich. April 5, 2019).

Ten to fifteen officers, including SWAT team officers in full gear, with long guns and shields, executed a search warrant at an apartment that shared a back wall with an apartment where one Mr. Jackson was "couch surfing." They broke a large sliding glass door to get in, at the same time loudly announcing that they were police officers.

During the search, two officers approached Mr. Jackson's apartment. They used a "law enforcement knock" on the door (Mr. Jackson described their knock as "banging loudly"), and announced themselves with a "tone of presence." Mr. Jackson had already heard the breaking glass and had looked out his window and seen a lot of officers, guns, and dogs. He did not answer his door.

Ten minutes later, the officers tried again. Mr. Jackson did not answer.

But as the officers were walking away, Mr. Jackson and a companion came out of the apartment. The officers stopped and frisked them, finding drugs, which led to a search warrant for the apartment (and the discovery of more drugs).*

Under the totality of circumstances, this "knock and talk" was not consensual, ruled Judge Goldsmith, in a detailed opinion that is a reminder to us all not to throw in the towel simply because an encounter at first blush looks like it will pass the knock-and-talk test. The test does not exclude a seizure finding simply because officers knocked on the door. The test is whether the officers made a show of authority and whether the person moving to suppress evidence submitted to that authority. It asks whether a reasonable person would feel free to leave, or decline the officers' request, or otherwise terminate the encounter. And thus all of our usual seizure factors (number of officers, tone of voice, surrounding circumstances) are relevant---even if the encounter is described by law enforcement as a simple knock-and-talk.

And so go forth, read Mills, and move to suppress the fruit of that knock-and-talk.

* Mr. Jackson's "couch surfing" status was sufficient to give him a legitimate expectation of privacy in the apartment, allowing him to challenge the later execution of the search warrant in addition to the seizure of his person. But that's a separate issue.

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