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Knock, knock, who's there?

The cops get a tip that the guy in Unit 102 of the housing project is dealing drugs. It could be an anonymous tip, or just some gossip they heard, certainly not enough to get a warrant. No matter. A bunch of them go over to the unit and knock on the door. Someone answered, but then closes the door when he saw it was the police. The cops continue knocking on the door and yelling "police!" for about half a minute or so, until the door's opened again, this time by somebody different. The officers can smell raw marijuana, and ask if someone else was in the apartment. The door is opened a little wider, at which point the cops can see a digital scale and some sandwich bags which appear to contain marijuana sitting on a coffee table. The officers walk in, grab the stuff, do a protective sweep, and find more drugs.

Good search or bad? Bad, the 2nd District decided last week in State v. Miller, which might have some effect on the "knock and talk" tactic widely used by police in drug cases.

The purpose of the knock and talk (also called, more felicitously, the "knock and advise") is -- in theory, at least -- simply to investigate complaints of drug activity, and it's well within the permissible boundaries of the 4th Amendment. Salesmen, neighbors, and anybody else can come and knock on your door, so policemen can, too. Of course, there's an ulterior motive here; as one detective was candid enough to admit in State v. Clark, a case last year from the 8th District, the purpose of the knock and talk is "to develop probable cause and make an arrest" when the police lack probable cause to get a search warrant.

The ulterior motive is inconsequential; as we all know, police conduct is viewed objectively for 4th Amendment purposes, rather viewed from the subjective perspective of the officer. What's more, this isn't even a 4th Amendment issue at this point. As the Miller court acknowledges, this is simply a consensual encounter, and "consensual encounters do not lose their propriety simply because they take place at the entrance of citizen's home." If the cop walks up to you on the street and starts asking questions, that's a consensual encounter, and you're free to leave. If the cop knocks on your door, you answer it, and he starts asking questions, you're free to slam the door in his face.

And that's where the cops in Miller ran into a problem, at least according to the 2nd District. The court cited a Federal case which had held that "when the police knock on a door but the occupants choose not to respond or speak, or maybe even choose to open the door and then close it, the officers must bear the consequences of the method of investigation they've chosen." From this, the court concluded, "the police must retreat from the suspect's residence and attempt to uncover new avenues by which to continue their investigation." In other words, once the door was closed, the police could not continue to seek entry by knocking, they had to leave.

This is a rather broad holding; I haven't checked for other cases coming to this conclusion, and maybe the 2nd District didn't, either, because if there are any, the opinion doesn't cite them.

So is it good law? I think so. Analogizing the situation to the street consensual encounter, as noted, courts have consistently held that there's no 4th Amendment violation because you're free to ignore the officer and walk away. But if you do, and the officer follows you and continues to badger you with questions, at some point the encounter loses its consensual flavor. At the heart of the whole concept of the consensual encounter is that you feel you have the freedom to refuse. It's hard to believe you have that freedom if it becomes clear that the cop isn't going to be satisfied with anything less than you responding to his questions. Same thing with knock and talk: the right to refuse to open the door to the police becomes meaningless if it's clear that they're going to keep knocking until you do.

This brings up another question, though. In Miller, we have a clear indication of refusal: the door was opened, and then shut. The police should have walked away at that point. But what if the door hadn't been opened in the first place? Is there some point in time -- a minute, two minutes, more, less -- that the police should have accepted the failure to answer the door as a refusal? If it's Halloween and the 6-year-old versions of Spiderman and Snow White are pounding on my door, and I don't want to give out candy, I know if I don't answer the door they'll stop and leave after a minute or so. Can I expect the same of the police?

Clark (discussed here) might be the better case in this genre. The police there asked to come in to Clark's apartment, he allowed them to enter, and they promptly observed "substantial quantities of marijuana in plain view." Even though the trial court found that Clark had consented to the search, the 8th reversed, finding that the presence of two detectives, two police officers, and two uniformed security officers at Clark's door was so "inherently coercive" as to make any consent involuntary. That's a tack that the 2nd District could have taken in Miller -- there were six officers in that case, too -- except it never reached the "consent" stage, at least for entry; the officers didn't enter because Miller consented to it, but because of their observation of drugs and paraphernalia.

So we have the Clark decision, which is tantamount to a holding that X number of police officers = coercion. Miller arguably holds that knocking for more than X seconds or minutes = nonconsensual encounter. Both have great value if you've got a case involving knock and talk. And anymore, who doesn't?

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