The police often use an technique called “the knock and talk” to make contact with people in their homes, i.e. houses, apartments, dormitories, etc. The technique is pretty much what it sounds like; an officer or officers approach a home, knock on the door and make contact with whomever answers the door. They use this technique in order to investigate supposed criminal activity; it allows them to interview people, observe (see, hear, and smell) the interior of homes from the doorway, and gain consent to enter. In short, a knock and talk is a tool to gather evidence.
When people learn of this technique, they either act like they don’t care because they feel they have nothing to hide or they express outrage at the intrusion. Regardless of which camp you are in, use the information in this article to protect yourself. Your constitutional rights are only good if you know and use them.
It is well established that the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Michigan State Constitution protect people from unreasonable searches and seizures. Both provide privacy protections for people’s homes, dwellings, and lodgings. To that end, it is impermissible for the government, which includes the police, to enter, search, or seize anything or anyone in a person’s home, dwelling, or lodging without a search warrant or absent one of the limited exceptions to the warrant requirement, i.e., there is an risk to someone’s life or property, they see, smell, hear something in plain view that they believe to be contraband, or they obtain consent.
The police use the knock and talk technique because it allows them to obtain information, consent to enter or to search, or to see something in plain view while they are lawfully present. State and Federal courts recognize the knock and talk technique as a valid tool of police investigation, but they also recognize that there are constitutional limits to it. In People v. Froheip, 267 Mich App 692 (2001), the Michigan Court of Appeals indicated that there are constitutional implications to the knock and talk procedure.
“Anytime the police initiate a procedure, whether by search warrant or otherwise, the particular circumstances are subject to judicial review to ensure compliance with general constitutional protections. Accordingly, what happens within the context of a knock and talk contact and any resulting search (and seizure) is certainly subject to judicial review. For example, a person’s Fourth Amendment right to be free of unreasonable searches and seizures may be implicated … where a person does not feel free to leave or where consent to search is coerced…[w]henever the procedure is utilized, ordinary rules that govern police conduct must be applied to the circumstances of the particular case.” Froeheip at page 699. (Emphasis added).
The courts conduct this review to ensure that the general protections of the constitution are upheld. Just this past March (2013), the United States Supreme Court addressed the knock and talk technique in the context of a drug dog sniff outside of a house in the area known as the “curtilage”. Both the majority and the dissenting opinions recognized the constitutional limitations on the knock and talk technique. The court used traditional concepts from property law in reaching its decision.
Justice Scalia stated that the court has:
“…recognized that the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds. Breard v. Alexandria, 341 U.S. 622, 626 (1951). This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. (Emphasis added). Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is ‘no more than any private citizen might do.'” Florida v. Jardines, 569 U.S. ____ (2013).
In the dissenting opinion, Justice Alito also recognized that there are limits on police activity in the context of a knock and talk. He stated:
“Of course, this license has certain [time and space] limits. A visitor must stick to the path that is typically used to approach the front door, such as a paved walkway. A visitor cannot traipse through the garden, meander into the backyard, or take other circuitous detours that veer from the pathway that a visitor would customarily use.”
Justice Alito cited other cases that supported his conclusion:
- Robinson v. Virginia (47 Va. App. 533, 549-550  [en banc] and United States v. Wells (648 F.3d 671, 679-680 [CA8 2011]): where the police exceeded the scope of their implied invitation when they bypassed the front door and proceeded directly to the back yard.
- State v. Harris (919 S.W.2d 619, 624 [Tenn. Crim. App. 1995]: any substantial and unreasonable departure from an area where the public is impliedly invited exceeds the scop of the implied invitation…
Those are not the only cases that recognize the time and space limitations on would-be visitors. In State v. Cada, 129 Idaho 224, 233 (1996) the court indicated that as a general matter, visitors cannot come to the front door in th emiddle of the night without an express invitation. “Furtive instrusion late at night or in the predawn hours is not conduct that is expected from ordinary visitors. Indeed, if observed by a resident of the premises, it could be a cause of great alarm.” Cada at 233. In California v. Ciraolo, 476 U.S. 207, 213 (1986), the court stated that the area around the home, known as the curtilage, is “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.” Ciraolo at 213.
Those above limitations apply to police officers who purport to use the knock and talk technique. When using that technique, they can only do what an ordinary citizen could do when he or she is coming to the door to knock on it and engage you; e.g., approach the home by the front path, knock promptly, wait briefly to be received, and then absent invitation to linger longer leave. They cannot come to your backyard, back door, sidedoor, etc. They must come to the front door. They must knock promptly. They cannot linger about, scouting out your home. After knocking, they can wait briefly. They cannot linger forever or knock repeatedly for a few or even several minutes. Thereafter, if you do not come to the door or otherwise engage them, or if you do engage them but do not invite them to stay or come in, they must leave. Certainly, if you do not invite them in or otherwise give them consent to come into your home, the police have another option. They can get a warrant.
A client’s mother once told me that deputy sheriff came to her door and asked for permission to search her home for something he believed to be there. She told him know. He told her that if she didn’t, he would just get a warrant and search anyway. She told him to leave and get the warrant. He told her that if she didn’t let him search, that he would stay there and make her life hell until the warrant came. So, she caved. He then claimed that she consented to the search and turned her house upside down.
Do not give in to the police. Do not let them bully, cajole, or persuade you to give up your constitutional protections. They may ask to come into your home, or your backyard, or wherever. Demand a warrant. They may seem sympathetic, “Hey, it’s cold/rainy/hot/loud outside, can I come in?” Just say no.
If you are one of those people who have a sign out front on your door, your fence, or in your yard that tells visitors to go to the back or side door, then remember what you are inviting the police to do. Perhaps consider removing it.
You do not have to answer their questions. You do not have to stand in your doorway while talking to them; open your door a crack or don’t open it and talk to them through it. Another option is to go outside and close the door behind you. If a police officer asks you for i.d., it’s ok to say “no” and ask, “do you have some reason to request it?” If a police officer asks you for your name, ask “why do you need it. Do you have some reason to suspect me of committing a crime?” If he or she persists, ask, “am I free to go?”