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ABRAMOSKE_NOTE 4/23/2008 9:07:44 PM
It Doesn’t Matter What They Intended:
The Need for Objective Permissibility Review of Police-Created
Exigencies in “Knock and Talk” Investigations
“Because good proactive police work often creates exigencies, the legal
issue is not simply whether the police created the exigency, but whether the
police impermissibly created the exigency.”1 I. INTRODUCTION The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures conducted by law enforcement personnel.2 This right is protected in part by the requirement that law enforcement officers obtain search warrants prior to searching for and seizing evidence.3 Searches conducted without a warrant are generally unreasonable.4 This warrant requirement is not absolute, however, as the Supreme Court recognizes exceptions when certain exigent circumstances exist.5 Exigent
1. Edward M. Hendrie, Creating Exigent Circumstances, FBI L. ENFORCEMENT BULL., Sept. 1996, at 2, available at http://www.fbi.gov/publications/leb/1996/sept966.txt (acknowledging legal issues arise when police create exigent circumstances through warrantless search).
2. U.S. CONST. amend. IV (establishing warrant requirement for searches, seizures, and arrests).
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
3. See, e.g., Katz v. United States, 389 U.S. 347, 357 (1967) (stating warrantless searches unreasonable, but subject to few “well-delineated” exceptions); McDonald v. United States, 335 U.S. 451, 455 (1948) (declaring search warrant interjects objective evaluation process between citizens and police action); Johnson v.
United States, 333 U.S. 10, 13-14 (1948) (balancing police officers’ zeal against need for “neutral and detached magistrate”).
4. See Payton v. New York, 445 U.S. 573, 586 (1980) (noting basic Fourth Amendment principles make warrantless searches unreasonable); Coolidge v. New Hampshire, 403 U.S. 443, 474 (1971) (stating search and seizure without warrant per se unreasonable); see also Horton v. California, 496 U.S. 128, 138 (1990) (stating “evenhanded law enforcement” achieved through objective standards, not subjective standards); Scott v. United States, 436 U.S. 128, 136-37 (1978) (declaring Fourth Amendment only meaningful if neutral magistrate evaluates reasonableness of search or seizure).
5. See Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984) (listing Court-recognized conditions justifying warrantless searches and arrests). Exceptions to the warrant requirement are “few in number and carefully delineated” because the Court requires judicial approval of police action whenever possible. United States v.
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562 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLI:561
circumstances exist when there is no time to obtain a warrant and the police are compelled to act quickly.6 Under such circumstances, searches may be reasonable despite the absence of a warrant.7 Though the Supreme Court has upheld warrantless searches where the exigency was related to police action, in each instance, the police conduct involved a response to an exigency, not proactive conduct that created one.8 When police actions create exigent circumstances, as opposed to merely encountering them during an investigation, courts must determine whether the police action permissibly or impermissibly created the exigency.9 While this permissibility inquiry may appear straightforward, courts differ on the standard to apply when weighing the propriety of police actions.10 Circuit courts seem to agree that the basis for any review is the reasonableness of police action but disagree over the role the police officers’ subjective intent should play.11 During these inquiries, courts focus on reasonableness because of the fear police will abuse their power.12 One police tactic that courts have increasingly subjected to reasonableness review is the procedure known as “knock and talk.”13 The “knock and talk” procedure is a common and seemingly innocuous U.S. Dist. Court, 407 U.S. 297, 318 (1972). Preservation of evidence from destruction is a legitimate exception to the warrant requirement. Id. Additional examples of constitutionally permissible exceptions to the warrant requirement are when officers are in “hot pursuit” of a suspect, need to protect or preserve life, feel a threat to their safety, or reasonably believe evidence will be lost. Hendrie, supra note 1, at 1 (listing some exigent circumstances and providing case citations).
6. See Katz, 389 U.S. at 357-58 (providing citations to exemplary cases and noting certain exceptions).
The Court lists searches incident to arrest, searches after “hot pursuit,” and consent searches among the exceptions to the warrant requirement. Id.; see also Welsh, 466 U.S. at 750 (providing examples of Courtrecognized exigent conditions); 68 AM. JUR. 2D Searches and Seizures § 127 (2006) (discussing exigent circumstances and rationale for permitting searches and seizures when they arise).
7. Coolidge, 403 U.S. at 474-75 (acknowledging exigent circumstances exception to warrant requirement); see also Warden v. Hayden, 387 U.S. 294, 298-99 (1967) (noting reasonable and necessary police action in exigent circumstance overcomes warrant requirement).
8. E.g., Chambers v. Maroney, 399 U.S. 42, 48 (1970) (approving automobile search where fear of flight existed); Chimel v. California, 395 U.S. 752, 762-63 (1969) (validating search of person after lawful arrest in order to remove weapons); Hayden, 387 U.S. at 298-99 (upholding search of suspect caught in hot pursuit).
9. E.g., United States v. Coles, 437 F.3d 361, 370-71 (3d Cir. 2006) (analyzing permissibility where police action created exigency); United States v. Richard, 994 F.2d 244, 248-49 (5th Cir. 1993) (discussing validity of police action creating exigency); United States v. MacDonald, 916 F.2d 766, 771 (2d Cir. 1990) (determining permissibility of police conduct where exigency arguably existed already).
10. See infra Part II.C (discussing different standards courts apply in determining permissibility of policecreated exigencies).
11. See infra Part II.B (detailing circuit courts’ reasonableness review and intent analysis).
12. See McDonald v. United States, 335 U.S. 451, 456 (1948) (noting mistrust of police action due to historical abuses of power). Police officers might act in reliance on a nonexistent exigency and subsequently manufacture an explanation that justifies their failure to first obtain a warrant. Valli F. Baldassano, Police Created Exigencies: Implications for the Fourth Amendment, 37 SYRACUSE L. REV. 147, 158 (1986);
Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. COLO. L. REV. 1037, 1050 (1996). The Fourth Amendment exists to protect against the danger of contrived explanations for police actions. See Baldassano, supra, at 158.
13. See H. Morley Swingle & Kevin M. Zoellner, “Knock and Talk” Consent Searches: If Called by a Panther, Don’t Anther, 55 J. MO. B. 25, 25 (1999) (noting recent increase in number of cases reviewing “knock ABRAMOSKE_NOTE_WDFF 4/23/2008 9:07:44 PM 2008] OBJECTIVE PERMISSIBILITY REVIEW OF POLICE-CREATED EXIGENCIES 563 procedure that police use proactively, making the procedure vulnerable to potential abuse.14 The “knock and talk” appears innocuous because courts do not generally consider its use a search or seizure, but rather an investigative tactic.15 The potential for abuse arises when police attempt to gain access for consensual searches and instead provoke exigencies that normally validate a warrantless search.16 This Note explains the police procedure known as “knock and talk” and examines the validity of the procedure as an investigative tactic.17 Part II.B discusses the use of the “knock and talk,” focusing on the reasonableness of the procedure when it creates exigent circumstances.18 Part II.B also provides examples of bad-faith uses of the “knock and talk” procedure.19 Next, Part II.C examines police created exigencies and the different standards courts apply in determining whether police permissibly or impermissibly created the exigency.20 This examination includes a discussion of both the objective reasonableness standard and the subjective bad-faith standard that courts apply.21 Finally, Part III explains why a court’s reasonableness and permissibility analyses should focus on objective criteria, rather than subjective intent, in determining Fourth Amendment compliance.22 The analysis focuses on the objective factors relevant to “knock and talk” in judging the reasonableness of police actions.23 and talk” procedure); see also infra note 24 and accompanying text (providing explanation of “knock and talk” procedure and distinguishing it from “knock and announce” principle).
14. See United States v. Powell, 929 F. Supp. 231, 232 n.3 (S.D. W. Va. 1996) (noting both utility and potential for abuse of “knock and talk” procedure); see also 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.3(b) (4th ed. 2004) (acknowledging propriety of “knock and talk” procedure while noting limitations).
15. See, e.g., United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005) (recognizing legitimate investigative procedure of “knock and talk” consensual encounters); United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001) (indicating “knock and talk” is a reasonable investigative tool); Johnson v. Weaver, No. 3:04cv-342, 2006 U.S. Dist. LEXIS 73344, at *23 (S.D. Ohio Sept. 29, 2006) (finding no search when police knocked on door seeking consent to search).
16. See United States v. Collins, 510 F.3d 697, 700 (7th Cir. 2007) (noting exigency common reaction to police presence); Powell, 929 F. Supp. at 232 n.3 (describing “knock and talk” procedure and abuse concern).
17. See infra Part II.A (discussing permissible circumstances for “knock and talk” procedure).
18. See infra Part II.B.1 (discussing reasonableness of “knock and talk” investigations).
19. See infra Part II.B.2 (discussing bad-faith uses of “knock and talk” procedure).
20. See infra Part II.C (discussing various circuit court standards of review for police created exigencies).
21. See infra Part II.C.1-4 (discussing reasonableness standards and bad faith analysis).
22. See infra Part III (supporting use of objective analysis test to comply with other Fourth Amendment jurisprudence).
23. See infra Part III.B.2 (applying permissibility review analysis to “knock and talk”).
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A. The “Knock and Talk” Procedure The “knock and talk” involves a police officer knocking on the door of a residence, identifying himself, asking to talk to the occupant, and ultimately seeking information or consent to search the residence.24 When done properly, a “knock and talk” does not constitute a search or seizure and therefore does not trigger the Fourth Amendment’s constitutional protections.25 This is because the procedure is an investigative tactic—not a search—that police often use when without sufficient probable cause to justify a warrant or permissible warrantless search.26 When police procure consent, the “knock and talk” procedure allows the officers to search a residence without a warrant and without probable cause.27 In many cases, the person answering the door consents to a police search, which makes the procedure highly effective.28
24. See United States v. Cruz, 838 F. Supp. 535, 537 (D. Utah 1993) (describing “knock and talk” procedure and noting noncustodial nature); see also Jayme W. Holcomb, Knock and Talks, FBI L.
ENFORCEMENT BULL., Aug. 2006, at 22, 24, available at http://www.fbi.gov/publications/leb/2006/august06leb.pdf (explaining consensual nature of “knock and talk”).
One should distinguish “knock and talk” from “knock and announce,” which is the principle that police officers must announce their presence and provide residents the opportunity to open the door when police have a warrant to enter and search without consent. See Wilson v. Arkansas, 514 U.S. 927, 931-32 (1995). “Knock and announce” is a common-law principle employed after police officers secure a warrant, while “knock and talk” investigations generally occur before police have even established probable cause. Id.; Holcomb, supra, at 22.
25. See Johnson v. Weaver, No. 3:04-cv-342, 2006 U.S. Dist. LEXIS 73344, at *23 (S.D. Ohio Sept. 29, 2006) (finding no search and seizure when police knocked on door seeking consent to search); see also Florida v. Bostick, 501 U.S. 429, 439 (1991) (noting Fourth Amendment protection against unreasonable searches and seizures does not prohibit voluntary cooperation); Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968) (requiring a police exertion of force or authority in restraining liberty for seizure to occur). When a citizen voluntarily cooperates with police in response to noncoercive conduct, no constitutional concerns arise. United States v. Morgan, 936 F.2d 1561, 1566 (10th Cir. 1991) (citing United States v. Santillanes, 848 F.2d 1103, 1106 (10th Cir. 1988)).
26. See United States v. Hall, No. 3:05-CR-087-R, 2005 U.S. Dist. LEXIS 19986, at *38 (N.D. Tex. Sept.
14, 2005) (finding use of “knock and talk” procedure unreasonable once probable cause established). But see Hoffa v. United States, 385 U.S. 293, 310 (1966) (noting police have no duty to halt investigation the moment probable cause established); United States v. Newman, No. 05-20603, 2006 U.S. App. LEXIS 29813, at *12 (5th Cir. Dec. 5, 2006) (upholding “knock and talk” inquiry when searching for suspect for whom police had arrest warrant).