Newsbrief: Florida Appeals Court Nixes "Knock and Talk" Arrest 1/16/04

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A Florida appeals court ruling calls into the question the popular police tactic of using "knock and talks" as a means of intimidating citizens into waiving their constitutional rights. In a "knock and talk," police may suspect someone of a crime but lack evidence to support a search warrant, so they confront the person in question and attempt to gain permission to enter the person's home to conduct a search. According to the Orlando Sentinel, which surveyed local law enforcement agencies, "knock and talks" are used in almost every jurisdiction it covered. They are widely popular with law enforcement across the United States because they provide a means of entering homes without the need for a warrant.

But the police may have to think again. In a January 10 ruling, Florida's 5th Circuit Court of Appeals, which covers 13 central Florida counties, threw out the drug conviction of Orange County (Orlando) resident Lynn Miller. Miller was arrested after allowing police to enter her home during a "knock and talk" encounter generated by an anonymous tip. The Orange County Sheriff's Office maintains a special squad of drug agents to investigate such tips using "knock and talk" techniques.

According to court records, Miller was leaving her home to run errands when she found three deputies dressed in black "Orange County Sheriff" jackets in her yard. They told her they needed to speak with her about a tip that "possible drug activity" had occurred in her home, and persuaded her to go inside with them. They never told her she had the right to refuse their requests, the court found.

After being questioned, Miller turned over a small bag of marijuana, a single rock of crack cocaine, and a pipe. Miller told the court one of the deputies told her "that I needed to let him in or they'd get a search warrant... I thought I had no alternative." She was charged with possession of marijuana, possession of a controlled substance, and possession of drug paraphernalia based on the seized evidence.

But the "knock and talk" was unlawful, the appeals court held. "We conclude... that a reasonable person would have felt compelled to comply with the officers' requests, and that [Miller's] encounter with police amounted to an unlawful seizure within the contemplation of the Fourth Amendment," wrote Judges Vincent Torpy and Earle Peterson. "This considerable show of authority was sufficient to create the perception that a major criminal investigation was under way."

Miller's lawyer, Steven G. Mason, says the ruling may have widespread ramifications on "knock and talk" practices. "The court is telling judges in 13 counties that here we have a process and this 'knock and talk' is inherently coercive," Miller's attorney, Steven Mason, told the Sentinel. "I think this opinion is sending a message that 'knock and talk' is constitutionally suspect."

While, according to the Sentinel, most central Florida law enforcement agencies continue to use "knock and talks," at least one agency, the Seminole County Sheriff's Department, does not. "We've done it in the past, but we certainly do not do it as a matter of routine," said Chief Deputy Steve Harriett. "We want to emphasize that we understand and appreciate the Fourth Amendment, which protects people from unreasonable search and seizure, and we're sensitive to that."

Learn how to handle yourself in "knock and talk" situations and other encounters with police officers. Donate $35 or more to DRCNet and get your complimentary copy of "BUSTED: The Citizen's Guide to Surviving Police Encounters," an outstanding new video from the Flex Your Rights Foundation. Donate $25 for your second, third or any further copies -- count previous BUSTED orders as your first! Visit http://stopthedrugwar.org/donate/ to support DRCNet and order your copies of BUSTED today!

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