|
|
|
| Knock-and-Talk |
Knock-and-Talks: Tom Salisbury has reminded me about the power of state constitutions. The state appellate courts are free to construe state constitutions as providing more protection to citizens and more restrictions on the action of police. You might be surprised at how many states, and in how many situations, this has been done in published opinions.
One example is the dreaded "knock and talk." Police pretty much have a free hand at approaching citizens and asking to discuss a case or seek consent to search. However, when police approach the home of a citizen, some state courts have re-evaluated the federal rule that the police are not required to inform the citizen that he/she may refuse consent. The federal constitution does not require police to inform the citizen that he/she may refuse consent, but if police attempt a "knock and talk" in certain states without informing the citizen of the right to refuse consent, any evidence obtained will be suppressed. This is the rule under the state constitutions in:
Arkansas: State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004).
Mississippi: Graves v. State, 708 So.2d 858 (Miss. 1997).
Washington: State v. Ferrier, 136 Wash.2d 103, 960 P.2d 927 (1998).
The Oklahoma Court of Criminal Appeals has not confronted this issue as far as I am aware. If you have a "knock and talk" case be sure to raise this issue in the district court and then again if you must pursue relief in the Court of Criminal Appeals.
|
|
|
United States v. Garza
, No. 04-4046(February 2, 2005) (UNPUBLISHED ORDER AND JUDGMENT): WINNER! Cops conducted a knock and talk at motel. They were allowed entry into the room by woman, but man goes into bathroom and refuses to respond to their questions. Cops go in bathroom and catch Garza with a gun and meth. Held: Violation of Fourth Amendment because no warrant, no exigent circumstances, and facts do not support the "protective sweep" exception because there was no arrest. A circuit split is developing over whether cops may conduct a "protective sweep" in the absent of an actual arrest. Supreme Court says no in dicta and Tenth Circuit agrees, but Fifth Circuit, en banc, disagrees, as well as other circuit opinions cited.
|
|
|
United States v. Spence
, No. 04-6118 (February 15, 2005) (Published): Knock-and-talk case but with international intrigue. Russian law enforcement officials notify U.S. Customs that Spence has subscribed to a Russian child porn web site. Three customs agents go to Spence's home in Oklahoma City, two go to the door, the other waits in the car. It is stipulated that agents had neither PC nor a warrant. Agents end up searching Spence's house and computer and find the stuff. Circuit holds the entire encounter was consensual and affirms the denial of the motion to suppress, primarily on the fact that Spence invited the agents inside his home, he signed two written search waivers and, according to the testimony at the suppression hearing, orally gave consent to the searches as well. In addition, the agents were in plainclothes and did not display weapons or use any force at all on Spence. Although not a winner, the case presents a good discussion of the legal requirements for consensual encounters regarding knock-and-talks which happen frequently.
|
|
|
State v. Brown,
356 Ark. 460, 156 S.W.3d 722 (2004): Winner!!! Knock-and-talk case where the Arkansas Supreme Court held that, under the Arkansas Constitution, police must advise a homeowner of his or her right to refuse consent to search in order for the consent to search a home to be valid. Good issue to raise in Oklahoma cases at the district court level so we can try to persuade COCA to do the same (don't laugh, the composition of the Court is a changin').
|
|
|
|
