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Knock and Announce Archives | Howard Lotspeich Alexander & Williams, PLLC

May 05
3
Police Knock and Talk Danhach 2016

Knock and Talk Interview Still a Lawful Way for Police to Enter a Premises

By | Theft

Police Knock and Talk Danhach 2016“Knock, knock!”

“Who is there?”

“The police and the FBI, may we come in please?”

There is a knock at the door. You look out your peep hole and see law enforcement. Do you have to open your door? If you open your door, do you have to let them in? What if they don’t have a warrant, but ask nicely and start talking to you? If you give consent to law enforcement to enter your home, can evidence seized be used against you in court later on?

This article is a summary of United States v. Danhach, a case recently decided in the US Court of Appeals for the 5th Circuit.

Evidence is Seized After Police Politely Ask If They Can Come Inside.

The Houston Police Department and the FBI had been investigating Sameh Danhach and his business associate for possible involvement in organized retail theft. As part of the investigation, law enforcement began surveilling a warehouse that Danhach had been seen entering on multiple occasions and to which a car used in stealing over-the-counter drugs and expensive baby formula had been linked. After several weeks of surveillance, law enforcement approached the warehouse and knocked on the door. Danhach’s business associate permitted the officers to enter, as surveillance cameras rolled capturing the entire conversation.

The officers saw trash bags full of merchandise and other indicators of stolen goods out in the open. Citing this evidence in a probable cause affidavit, law enforcement obtained a search warrant and seized the evidence for trial. Danhach was charged with conspiracy to transport stolen goods in interstate commerce and also with aiding and abetting the interstate transportation of stolen OTC medication and baby formula, violations of 18 U.S.C. § 371 and 18 U.S.C. § 2314, among other charges.

At trial, the jury found Danhach guilty on all counts and the judge sentenced him to 151 months in prison and a three year term of supervised release. Danhach appealed.

The Knock and Talk Procedure, the Plain View Doctrine and Consent Collide.

Courts have recognized the “knock and talk” technique as “a reasonable investigative tool when officers seek to gain an occupant’s consent to search or when officers reasonably suspect criminal activity.” United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001); Kentucky v. King, 563 U.S. 452, 469 (2011). Evidence may be cited in support of a search warrant if (1) law enforcement entered the area where the item was located; (2) the item was in plain view; (3) the incriminating nature of the item was immediately apparent; and (4) law enforcement had a lawful right of access to the item.” United States v. Jackson, 569 F. 3d 236, 242 (5th Cir. 2010).

However, if for some reason the “plain view” doctrine does not stand up to the facts of a case, then “consent to enter” may be an alternative argument, but “the government must demonstrate that there was effective consent that was given voluntarily by a party with actual or apparent authority.” United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010).

The Big Issue Before the Fifth Circuit was Whether Officers Lawfully Entered and Remained Inside of Danhach’s Warehouse While Conducting a “Knock and Talk” Interview.

Here, the Fifth Circuit agreed with the district court and affirmed judgment and sentencing, holding that law enforcement permissibly used the knock and talk technique. The Court pointed out that video surveillance is consistent with law enforcement’s account that consent was obtained before entering. Even after law enforcement entered, Danhach’s business associate gave them permission to walk around the warehouse. The stolen goods were in plain view and were immediately apparent and indicative of criminal activity. Based on this series of events, “even if any evidence cited in the warrant…was not covered by the plain-view doctrine, the record supports the conclusion that the agents asked for and received consent for a full search of the warehouse.” Danhach did not offer any evidence to show that the consent was coerced in any manner, nor did he offer any evidence that the items seized were not in plain view.

Consent to Search + Items of Criminality in Plain View = Probable Cause to Obtain a Warrant

In sum, law enforcement may ask to enter a premises without a warrant and if consent is obtained from a person who is “in charge” or who looks to be “in charge,” then that consent is sufficient according to the Fifth Circuit, citing previous cases. Once lawfully inside a dwelling or premises, if law enforcement officers see, in plain view, objects that are linked or are seemingly linked to a crime, then those items may be the basis of a warrant to seize the items and to conduct an even more extensive search.

Jun 17
0
Kentucky v. King 2011, Knock and Announce

What’s Behind Door Number 1? | Knock and Announce

By | Drug Crimes

Kentucky v. King 2011, Knock and AnnounceSupreme Court Case Review –  Kentucky v. King, opinion dated May 16, 2011:

Officers set up a controlled buy of crack cocaine outside an apartment complex. After the deal, the suspect went into the apartment building. Officers followed the suspect into a breezeway where they saw two apartments, one on the left and one on the right. The officers did not see which apartment the suspect entered. The officers smelled marijuana smoke emanating from the apartment on the left as they approached the door.

Knock and Announce

One of the officers knocked loudly on the door an announced, “Police, police, police.” The officers did not demand entry or threaten to break down the door. As soon as the officer started banging on the door, he heard noises that led him to believe that drug related evidence was being destroyed inside the apartment. At this point, the officers announced they were going to enter the apartment and they kicked down the door. Once inside the apartment the officers performed a protective sweep and recovered marijuana and powder cocaine in plain view. Officers eventually entered the apartment on the right and found the suspected drug dealer who was the initial target of their investigation.

One well recognized exception to the warrant requirement applies when the exigencies of the situation makes the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. The need to prevent the imminent destruction of evidence has been identified as one of the exigencies that may justify the warrantless search of a home. Where, as here, the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable.

When officers who do not have a warrant knock on a door, they do no more than any private citizen might do, and the occupant has no obligation to open the door or speak to them. It was only after the officers knocked on the door and announced, “Police, police, police,” did the exigency arise. Because the officers did not violate or threaten to violate the Fourth Amendment by demanding entry, or threatening to enter the apartment, the court held that the exigency that arose afterward justified the officers’ warrantless entry into the apartment.