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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Police GPS Tracking Okay’d

The U.S. Court of Appeals for the Sixth Circuit says criminals can’t “complain” when police use a device’s features to catch them.

The device feature the police used was the GPS on Skinner’s cell phone.

Read more here: US v. Skinner

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.

Set Aside Waiver of Right to Jury Trial

When I was a kid, I wanted to be a super hero. I wanted to protect the weak; fight for what was right and just; and wear a cape. I knew sometimes I’d have the odds stacked against me. But, super heroes don’t give up just because they might lose. The fate of the world hangs in the balance.

I just drafted my first motion to set aside a criminal defense client’s waiver of his constitutional right to jury trial. I didn’t feel like a super hero doing it; even though, I prepared this motion from scratch; meaning, no template was used. [Side note: When I first started law school (and even when I graduated) I thought all motions were from some master book of motions that attorneys had on their shelves. In a way, I was right; the masterbook of motions is made of all of the laws in the land; but there is no actual masterbook filled with every motion ever written. Lawyers write their own motions (or borrow them from other lawyers) and save them as templates for future cases; tweaking these templates to fit the ever-changing facts and law over the course of their time in practice. It’s funny, in a way; I believed in the notion of a masterbook until I heard a very senior attorney tell another attorney who had asked to borrow a motion template, “just make your own; title it whatever you want. Then just put in the facts and the law.” Not exactly super hero stuff, but helpful in its own right.

Why I needed to write the motion:

The US and Michigan Constitutions guaranty each and every person the right to a trial by jury in every criminal prosecution. See Art. 1, §24 of Mich. Const. of 1963 and Art. 3, §2 US Constitution, along with the 5th, 6th, and 14th Amendments to the US Constitution. The Michigan and US Constitutions are slightly different, but the basic right is there for every person accused of a crime.

My client is being prosecuted for a misdemeanor, punishable by up to 93 days in jail. He was initially arraigned in October of 2011. However, due to various delays, both on his part and on the part of others, he was not granted court-appointed counsel until January 31st, 2012. I wasn’t actually appointed until February 1st, 2012. However, he waived his right to trial by jury back on January 4, 2012; upon the suggestion or his own mistaken assumption about what the prosecutor meant.

Now, this is where it gets interesting; before he could actually waive his right to counsel, the court must ensure that he knows he has the right to a trial by jury, that he understands that right, and that he means to waive that right voluntarily. See MCR. 6.402(B). The court and the prosecutor must also consent his waiver. See MCR 6.401 et seq. Since, it could be argued that the above arrangement is like the fox guarding the henhouse, the Michigan Court Rules also provide that a criminal defendant must also be afforded the opportunity to obtain counsel, be provided with a copy of the criminal information, and must be arraigned before any arraignment can take place. See MCR 6.402(A).

I drafted the motion, in essence, because I was not appointed until well after he had already waived his right to trial by jury. I argued in my motion, that everything else in the court rule for waivers of that right hinges upon my client’s ability to have counsel, so that he has the ability to understand the right and voluntarily choose to give it up. He was denied the ability to do so because he wasn’t granted counsel until 27 days after his waiver.

What the prosecutor will most likely argue:

The prosecutor will most likely argue three things: 1) too much time has passed, 2) his waiver was still knowing and voluntary because the court explained everything on the record, and 3) that she never suggested to my client that a bench trial is better. If she comes out of the gate arguing those things, I’ll just rely on the caselaw and the facts to argue vigorously for my client. She may be correct on all of those points, but being correct isn’t the same as being right.

If the prosecutor wins, we’ll have to preserve the issue for appeal and proceed with the bench trial. My client’s fate hangs in the balance. Whether he has a bench or a jury trial doesn’t really impact anyone else like it will him. It’s a helluva coin toss that could have been avoided if my client had requested an attorney sooner or if the court had delayed the issue of waiver until my client had the opportunity to have counsel advise him.

Lesson: Super hero or not, I still get to fight the good fight. I don’t get to save the world or jump over tall buildings in a single bound. Instead, I strive to make sure our Constitution works for all of us; especially, those that don’t really understand it. They need its protection the most.

Note to other people charged with a crime: Don’t waive your constitutional right to a jury trial lightly, or without seeking the advice of a criminal defense attorney first.

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