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What If?
- Thread starter pittbull7
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This is from a recent installment of my monthly "Busted!" column in MUSCULAR DEVELOPMENT magazine (adapted from a lengthy and comprehensive chapter on Controlled Deliveries in my book LEGAL MUSCLE):
KNOCK-AND-TALKS
Q: What is a “knock-and-talk”?
A: The easiest way for the police to pierce the privacy protection of your home is by consent. A successful entry technique among law enforcement agents since the 1980’s is the so-called “knock-and-talk.” It’s more popular today than ever, and is standard procedure in many mail order anabolic steroid cases where the agents lack the probable cause necessary to get a search warrant or where an attempted controlled delivery of the steroid package was rejected or aborted. Often with the package in hand, the agents simply knock on the suspect’s door and request admittance. Stunned and intimidated, many people aren’t sure if they have a right to refuse consent, or simply forget that right in the heart-stopping pressure of the moment. Once inside, the suspect is confronted with the package and the agents’ accusations. Although inherently coercive, these entries have been upheld by courts in many states.
If a suspect refuses to consent to the agents entering his home, the agents will typically ask why consent is being withheld. The object is to keep the suspect interacting with them. They may claim that neighbors are watching or suggest other reasons why it would be in the suspect’s best interests to discuss the matter more privately -- inside the house. By prolonging the conversation, they retain the possibility of finding a way to persuade, cajole, threaten, bully or otherwise get the suspect to let them in.
The big issue in reviewing any consent situation is whether the consent was voluntary. The voluntariness of consent is judged by the legal standard called the “totality of the circumstances.” [Schneckcloth v. Bustamonte, 412 U.S. 218 (1973); Florida v. Bostick, 501 U.S. 429 (1991)] Each case is different, and a court’s decision can turn on the tiniest factual details. The burden of proving consent rests on the government. [Bumper v. North Carolina, 391 U.S. 543 (1968)] There are no magic words required for a person to express consent. It can be either written or oral. It can even be shown just by a gesture.
There are limits on police conduct in obtaining consent. Consent as a result of threats, harassment or official intimidation is not consent at all. There is a difference between consent and “submission to a claim of authority.” If the agents have no warrant but assert that they have the absolute right of authority to conduct the search regardless of consent, the consent is involuntary. Of course, exactly what conversation led to the purported consent can be an issue in dispute. In that case, a pre-trial suppression hearing will explore the facts.
Note that once the agents are inside, they may rely upon other legal search concepts to justify further peeping. For example, the “plain view” doctrine attaches because the agents now are lawfully on the premises. While one agent talks to the suspect, the other may visually scan every corner and cranny of the room for some scrap of evidence of crime. If found, probable cause is established for an arrest, and even in the absence of further consent, the area around the suspect can now be searched “incident to” his lawful arrest.
A basic rule of thumb: if the agents already have enough information to search a residence, they will have a signed, valid search warrant and won’t be asking for consent. Got that? Anyone wishing to maximize privacy interests can do it simply: do not admit law enforcement agents into your home unless they are executing a valid warrant. People who refuse to consent force the government to rely only on the information and evidence that they already have. If it’s not enough, no search or seizure can take place.
KNOCK-AND-TALKS
Q: What is a “knock-and-talk”?
A: The easiest way for the police to pierce the privacy protection of your home is by consent. A successful entry technique among law enforcement agents since the 1980’s is the so-called “knock-and-talk.” It’s more popular today than ever, and is standard procedure in many mail order anabolic steroid cases where the agents lack the probable cause necessary to get a search warrant or where an attempted controlled delivery of the steroid package was rejected or aborted. Often with the package in hand, the agents simply knock on the suspect’s door and request admittance. Stunned and intimidated, many people aren’t sure if they have a right to refuse consent, or simply forget that right in the heart-stopping pressure of the moment. Once inside, the suspect is confronted with the package and the agents’ accusations. Although inherently coercive, these entries have been upheld by courts in many states.
If a suspect refuses to consent to the agents entering his home, the agents will typically ask why consent is being withheld. The object is to keep the suspect interacting with them. They may claim that neighbors are watching or suggest other reasons why it would be in the suspect’s best interests to discuss the matter more privately -- inside the house. By prolonging the conversation, they retain the possibility of finding a way to persuade, cajole, threaten, bully or otherwise get the suspect to let them in.
The big issue in reviewing any consent situation is whether the consent was voluntary. The voluntariness of consent is judged by the legal standard called the “totality of the circumstances.” [Schneckcloth v. Bustamonte, 412 U.S. 218 (1973); Florida v. Bostick, 501 U.S. 429 (1991)] Each case is different, and a court’s decision can turn on the tiniest factual details. The burden of proving consent rests on the government. [Bumper v. North Carolina, 391 U.S. 543 (1968)] There are no magic words required for a person to express consent. It can be either written or oral. It can even be shown just by a gesture.
There are limits on police conduct in obtaining consent. Consent as a result of threats, harassment or official intimidation is not consent at all. There is a difference between consent and “submission to a claim of authority.” If the agents have no warrant but assert that they have the absolute right of authority to conduct the search regardless of consent, the consent is involuntary. Of course, exactly what conversation led to the purported consent can be an issue in dispute. In that case, a pre-trial suppression hearing will explore the facts.
Note that once the agents are inside, they may rely upon other legal search concepts to justify further peeping. For example, the “plain view” doctrine attaches because the agents now are lawfully on the premises. While one agent talks to the suspect, the other may visually scan every corner and cranny of the room for some scrap of evidence of crime. If found, probable cause is established for an arrest, and even in the absence of further consent, the area around the suspect can now be searched “incident to” his lawful arrest.
A basic rule of thumb: if the agents already have enough information to search a residence, they will have a signed, valid search warrant and won’t be asking for consent. Got that? Anyone wishing to maximize privacy interests can do it simply: do not admit law enforcement agents into your home unless they are executing a valid warrant. People who refuse to consent force the government to rely only on the information and evidence that they already have. If it’s not enough, no search or seizure can take place.
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