Limit Police Access to Your Home: Protect Your 4th Amendment Rights

     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 [2006] [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?”

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Exercising Your Rights During Traffic Stop

Listen to the exchange between the officer and the rider at :45 to 1:04; it’s a simple, effective way to exercise your right to remain silent. Listen also to the officer’s response. He attempts to scare the rider into submission.

Be polite. Be firm. Exercise your right to remain silent.

Watch video here:
exercising your rights during traffic stop

New York Law Journal Article about Brady Violations

What are Brady violations? “Brady” refers to a seminal US Supreme Court case from 1963; wherein, the prosecutor withheld evidence critical to the defense of the accused, which resulted in his conviction. See: Brady v. Maryland, 373 US 83 (1963). The accused, Mr. Brady, challenged his conviction – unsuccessfully. However, his case established a core due process principle that the prosecutor cannot withhold exculpatory evidence that is material to the guilt or punishment of a person accused of a crime. Exculpatory evidence is “material” if “there is a reasonable probability that his conviction or sentence would have been different had these materials been disclosed.”Brady evidence includes statements of witnesses or physical evidence that conflicts with the prosecution’s witnesses,and evidence that could allow the defense to impeach the credibility of a prosecution witness.

However, Brady violations continue to this day. The net effect is that people are wrongfully convicted and innocent people suffer imprisonment or worse. “The withholding of information favorable to the accused is abhorrent, as it violates the core principles of Brady, and is contrary to the duty of a prosecutor to seek justice—not merely convictions.” Perhaps if Brady violations didn’t happen this map would look very different.

Read more here: A Personal Reflection on Brady Violations.

Occupation: Drug Dealer?

You have the right to remain silent. Anything you say or do can and will be held against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?*

Deaundre Barnes kind of knew what the Miranda warning meant when he was arrested for allegedly stabbing a man for interrupting his argument with his girlfriend. According to the Tampa Bay Times article, when he was arrested by the police, Mr. Barnes refused to answer their questions. However, Mr. Barnes didn’t get it all right; he apparently slipped up at one time or another because the article states that he listed his occupation as “drug dealer” on some kind of paperwork. Not a smart move, given that Mr. Barnes is allegedly on drug offender probation.

The substance of Miranda is that you do not have to answer any questions by the police. Anything you say can and will be used against you in court. Many cases that come across my desk involve a criminal defendant who told the police everything. Many times those defendants are surprised to learn that the police are using their own statements against them. “I thought they were supposed to Mirandize me,” is probably the second-most common statement I hear from clients. What those clients didn’t know is that the police are free to ask any questions they want – even lie – to get answers during their interactions with suspects and/or witnesses. It is only when the police arrest someone, or a reasonable person would feel that he or she is not free to leave that the police need to Mirandize someone.

Up until that point, the police can ask any questions they want to – but a person would be a fool to answer them. Simply put, no one is required to answer any of their questions. Instead of answering their questions, a person can respond with “Am I under arrest officer?” Chances are, if the officer wants to make an arrest, he’s already came to that conclusion long before anyone asks him, and nothing a person says is going to change his mind at that point anyway. By asking him, the person being questioned puts the officer on notice that the person knows what his rights are. If the officer responds to the question by stating that the person is under arrest, then it would be perfectly within a person’s right to ask to be Mirandized or to refuse to answer any of his questions, since we all have the right to remain silent. Once a person invokes his or her right to remain silent (something that must be done expressly), the police must stop all questioning, if that person is under arrest. If the officer tells a person that he or she is not under arrest, (understand that this could be a lie) it is still tell important to state that none of his questions will be answered. It is also important to ask politely, “can I go now?” Note: Just because a person is not under arrest does not mean that he or she is immediately free to leave. For example, if someone has been stopped for a blown tail light or for speeding, he or she can’t just drive off until the police officer has completed the traffic stop.

*The wording of Miranda rights vary depending on the jurisdiction, but the substance should remain the same. This one is used by Alaskan State Troopers.

Financial “Irregularities” at Monroe County Road Commission

ImageThe Monroe Evening News recently reported that “irregularities” were found in the Monroe County Road Commission’s accounting records. While the article did not elaborate on what the irregularities were, it did state that both the Monroe County Prosecutor’s Office and the Michigan State Police were conducting an investigation. The article also stated that the employee connected with the accounting issues had been fired.

The road commission opted to have the state police and the county prosecutor to investigate instead of paying an outside firm to do an audit of its records. Robert “Mickey” Duffey, the board chairman of the road commission said it was a cost saving measure. However, it is more likely that the road commission considers the irregularities to be evidence of a crime; which means, the road commission not only wants to save money, it also wants to find more evidence to prosecute the individuals involved.

Perhaps, the Michigan State Police and the Monroe County Prosecutor will find evidence of embezzlement, misappropriation of funds, or some other fraudulent schemes to deprive another of honest services through bribes or kickbacks. Hopefully, those agencies will go over all of the road commission’s financial records with a fine-toothed comb and bring to light any corruption. In doing so, I hope all the parties involved remember that our system of justice provides that people are innocent until proven guilty beyond a reasonable doubt.

Sometimes the police find evidence (or what appears to be evidence) that upon first glance looks incriminating, but further investigation reveals that it is not. To borrow a metaphor from a talented and passionate criminal defense attorney, Alona Sharon of Royal Oak, MI, the crime the police are investigating is one big puzzle. There are lots of different pieces; there are big ones, little ones, some with male parts, others with female parts, and the one thing they all have in common is that when put together – correctly – they form a picture. When the police finish their puzzle, they should know who committed the crime, how it happened, where it happened, and to whom it happened. In short, they should know the truth.

There are basic rules to puzzle-building. First, you frame the picture by putting together all of the pieces with straight sides on the outside. Then, from this frame you work your way inward. You make sure you have all of the pieces. You make sure all of the pieces go to that puzzle. You also make sure they really do fit together. If they don’t, and you just mash them together, your picture will be distorted. It takes patience, focus, an open mind, attention to detail, and the ability to admit when this little piece here doesn’t really go where you thought it did, even when you really, honestly believed that it did.

Sometimes, the people conducting a criminal investigation face tremendous amounts of pressure to solve the crime. Their bosses put pressure on them, the victims and the victims’ families put pressure on them, their peers put pressure on them, the public puts pressure on them, and they put pressure on themselves.  It’s easy to succumb to that pressure. They want to do a good job, but they just start mashing pieces together that don’t fit. Maybe they started off wrong by starting on the inside instead of making sure all the pieces with the straight sides are on the outside. Maybe they got a bad puzzle box with pieces from different puzzles in it. Who knows how it happens, but it happens; when those pieces get mashed together, even if most of them are right, the picture comes out all wrong. It’s not the truth.

If you are being investigated regarding accounting “irregularities” or some other crime, hire an attorney who will make sure the picture on the puzzle looks the way it’s supposed to look. You don’t want to go from being an unnamed person in a newspaper article to being a headline, or worse yet, behind bars. Just remember, if the police question you, or want to question you, you have the right to remain silent. That means, shut your mouth. Don’t say anything, except, “Thank you, officer. I appreciate what you are doing. But, I have the right to remain silent and I am exercising that right.” Nothing else you say, or are going to say, will help you.

Finally, if you have any leads into the Monroe County Road Commission accounting irregularities, please call the Monroe County Prosecutor’s Office at (734) 240-7600 or the Monroe Post of the Michigan State Police at (734) 242-3500.

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