Question: Is consent to search voluntarily given when it’s in the presence of numerous peace officers during a “knock and talk”?
Quick answer: Probably not.
Facts: Police had received several anonymous tips that defendant Claudius Clark was selling drugs in his apartment and the nearby parking lot. Police set up surveillance of Clark’s apartment but witnessed no criminal activity. Six officers decided to conduct a “knock and talk” with Clark to see if any of the anonymous tips had merit. They could smell burnt marijuana coming from Clark’s apartment as they stood outside in the hall. They knocked, and when Clark answered the door, they identified themselves and asked Clark if they could come in to discuss the complaints about him. The officers’ account and Clark’s account differ from here. The officers explained that Clark allowed them to come inside the apartment. Once inside, police asked him about both the burnt marijuana and raw marijuana odors, and Clark told the officers he smoked marijuana every day and just wanted them to arrest him. He asked to get his shoes from the bedroom, so an officer followed him. The officer spotted loose marijuana on Clark’s nightstand wrapped up in paper, and another officer checked the closet and found a shotgun, a digital scale, plastic baggies, rubber bands, and marijuana residue.
Clark’s account of what occurred is much different: He said he never invited the officers into his home; he explained that they forced their way in, claiming at the outset that Clark was under arrest. He told them they couldn’t be in his home without a warrant, but they insisted that they knew marijuana was being kept there. He told them to wait by the door so he could put some clothes on, but one officer followed him and picked up the papers on his nightstand to find marijuana wrapped inside. Police arrested Clark and secured a warrant. A later search of his apartment revealed 10 pounds of packaged marijuana. They had Clark sign a Miranda waiver at the police station, but he refused to sign a consent form for searching his apartment. He later filed a motion to suppress the evidence based on the warrantless entry and search of his apartment.
Why this case is important: This court found that Clark did not voluntarily consent to the officers’ warrantless entry and search of his apartment. To determine if consent is voluntary, courts will look at the totality of the circumstances, which includes (1) the suspect’s custodial status and the length of the initial detention; (2) whether consent was given in public or at a police station; (3) the presence of threats, promises, or coercive police procedures; (4) the words and conduct of the suspect; (5) the extent and level of suspect cooperation with police; (6) the suspect’s awareness of his right to refuse consent; (7) the suspect’s education and intelligence; and (8) the suspect’s belief that no incriminating evidence will be found. In Clark’s case, when he answered the door, there were six officers there to speak with him. The officer presence alone was an overwhelming show of force and inherently coercive considering the purpose of a “knock and talk” was just to “engage a suspect in conversation.” Also, the officers’ forcible entry, if true, was a coercive tactic. Finally, the fact that there was an overwhelming smell of marijuana in the apartment showed that Clark knew he had incriminating evidence inside and never would have consented to a police entry and search. For these reasons, the officers violated the Constitution.
Keep in mind: Because peace officers use the “knock and talk” tactic when they don’t have probable cause or a warrant, they face some limitations. A suspect is free to ignore the knock or refuse to answer questions, so any search that follows from the “knock and talk” must be based on probable cause and a warrant exception, such as consent. Remember, though, that law enforcement presence during a “knock and talk” may later invalidate the consent if there are a large number of officers present.
to read the entire opinion.