It doesn't matter what they intended: the need for objective permissibility review of police-created exigencies in "knock and talk" investigations.

• Author: Abramoske, Bryan M.

"Because good proactive police work often creates exigencies, the legal issue is not simply whether the police created the exigency, but whether the police impermissibly created the exigency." (1)

1. INTRODUCTION

   The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures conducted by law enforcement personnel. (2) This right is protected in part by the requirement that law enforcement officers obtain search warrants prior to searching for and seizing evidence. (3) Searches conducted without a warrant are generally unreasonable. (4) This warrant requirement is not absolute, however, as the Supreme Court recognizes exceptions when certain exigent circumstances exist. (5) Exigent circumstances exist when there is no time to obtain a warrant and the police are compelled to act quickly. (6) Under such circumstances, searches may be reasonable despite the absence of a warrant. (7)

   Though the Supreme Court has upheld warrantless searches where the exigency was related to police action, in each instance, the police conduct involved a response to an exigency, not proactive conduct that created one. (8) When police actions create exigent circumstances, as opposed to merely encountering them during an investigation, courts must determine whether the police action permissibly or impermissibly created the exigency. (9) While this permissibility inquiry may appear straightforward, courts differ on the standard to apply when weighing the propriety of police actions. (10) Circuit courts seem to agree that the basis for any review is the reasonableness of police action but disagree over the role the police officers' subjective intent should play. (11)

   During these inquiries, courts focus on reasonableness because of the fear police will abuse their power. (12) One police tactic that courts have increasingly subjected to reasonableness review is the procedure known as "knock and talk." (13) The "knock and talk" procedure is a common and seemingly innocuous procedure that police use proactively, making the procedure vulnerable to potential abuse. (14) The "knock and talk" appears innocuous because courts do not generally consider its use a search or seizure, but rather an investigative tactic. (15) The potential for abuse arises when police attempt to gain access for consensual searches and instead provoke exigencies that normally validate a warrantless search. (16)

   This Note explains the police procedure known as "knock and talk" and examines the validity of the procedure as an investigative tactic. (17) Part II.B discusses the use of the "knock and talk," focusing on the reasonableness of the procedure when it creates exigent circumstances. (18) Part II.B also provides examples of bad-faith uses of the "knock and talk" procedure. (19) Next, Part II.C examines police created exigencies and the different standards courts apply in determining whether police permissibly or impermissibly created the exigency. (20) This examination includes a discussion of both the objective reasonableness standard and the subjective bad-faith standard that courts apply. (21) Finally, Part III explains why a court's reasonableness and permissibility analyses should focus on objective criteria, rather than subjective intent, in determining Fourth Amendment compliance. (22) The analysis focuses on the objective factors relevant to "knock and talk" in judging the reasonableness of police actions. (23)

2. HISTORY

   1. The "Knock and Talk" Procedure

      The "knock and talk" involves a police officer knocking on the door of a residence, identifying himself, asking to talk to the occupant, and ultimately seeking information or consent to search the residence. (24) When done properly, a "knock and talk" does not constitute a search or seizure and therefore does not trigger the Fourth Amendment's constitutional protections. (25) This is because the procedure is an investigative tactic--not a search--that police often use when without sufficient probable cause to justify a warrant or permissible warrantless search. (26) When police procure consent, the "knock and talk" procedure allows the officers to search a residence without a warrant and without probable cause. (27) In many cases, the person answering the door consents to a police search, which makes the procedure highly effective. (28) Police have noted this effectiveness, leading to expanded use of the procedure. (29)

      Because the "knock and talk" is neither a search nor seizure, police officers need not have probable cause or reasonable suspicion of criminal activity before initiating an encounter. (30) Instead, police officers conducting "knock and talk[s]" usually are acting on incomplete information and the need to conduct further investigation. (31) In conducting this additional investigation, the goal for police is to gain consent to search, thereby making a warrant unnecessary. (32) While the "knock and talk" does not give police any right of entry without consent, the procedure remains vulnerable to abuse. (33) The tactic can create exigent circumstances, resulting in illegal searches and seizures, when an occupant reacts to police presence with more than a mere grant or denial of consent to search. (34) Courts must determine whether the police action in such situations permissibly provoked such a reaction. (35)

   2. The "Knock and Talk" Procedure Under Review

      The "knock and talk" has proven an effective and constitutionally valid investigative practice that police have embraced. (36) The use of the tactic for investigations, however, can be a catalyst for the initiation of a warrantless search or seizure. (37) Accordingly, the "knock and talk" is subject to review under the standards for permissibility of police-created exigencies discussed later in this Note. (38) The different standards of inquiry, however, lead to conflicting results regarding whether a "knock and talk" permissibly created an exigency. (39)

      1. Reasonableness of "Knock and Talk" as an Investigative Tactic Courts will presume that the use of the "knock and talk" is reasonable unless the occupant can show that the circumstances under which it occurred created a coercive investigatory stop, effectively rendering the encounter a seizure to which Fourth Amendment protections apply. (40) Even a "knock and talk" that is initially reasonable may become a coercive investigatory stop. (41) A "knock and talk" may become coercive when police compel an occupant to open the door under the "badge of authority." (42) Additionally, if the police exhibit unreasonable persistence in attempting to gain entry or solicit cooperation, a court may deem the "knock and talk" coercive. (43) Courts review the totality of the circumstances to determine whether police used the "knock and talk" in a manner that converted it from an investigatory practice to a seizure triggering Fourth Amendment protections. (44) The reasonableness of the "knock and talk" is predicated on its use as an investigative tool to seek consensual encounters. (45) Some have argued that a "knock and talk" is not reasonable once police are aware that the occupant will not consent. (46)

         During an investigation, a "knock and talk" initiated to solicit a consensual encounter may become unreasonable before completion. (47) If the police use tactics that force the individual to exit his home, courts may find this to be a "constructive entry" and thus unreasonable under the Fourth Amendment. (48) Constructive entry may also occur when police conduct a "knock and talk" with weapons drawn, while yelling at the occupant, using a bullhorn, or while preventing the occupant from leaving the premises. (49)

         Under some circuits' standards, the reasonableness of the "knock and talk" is subject to review regardless of police intentions. (50) Generally, courts deem the tactic reasonable when police solicit information during a consensual encounter. (51) Moreover, the law does not limit consensual "knock and talk" encounters to inquiries made at the front door of a residence, as the law considers police to be visitors to a residence and accordingly affords them the same latitude as other visitors with regard to permissive intrusion. (52)

      2. Bad-Faith Use of "Knock and Talk"

         Bad-faith applications of the "knock and talk" procedure occur when police officers knowingly try to circumvent Fourth Amendment warrant requirements. (53) Police officers act in bad faith when they believe a "knock and talk" will result in some foreseeable exigency and are tempted to use the technique instead of properly obtaining a warrant. (54) While it is difficult for courts to retrospectively determine the officers' subjective intent, they recognize that certain types of "knock and talk" encounters are indicative of bad faith. (55)

         Courts review the totality of the circumstances to determine the subjective intent of police. (56) The use of deception is one indicator of bad faith. (57) For example, where police officers conduct a "knock and talk" and fail to identify themselves, or misidentify themselves, it is difficult for the court to find that the officers were simply seeking consent to search. (58) The use of "subterfuge," therefore, is likely to trigger a finding of bad faith. (59)

         Bad-faith intentions also exist when police have knowledge of criminal activity or have the ability to obtain a warrant prior to the execution of a "knock and talk" and fail to do so. (60) Though police can use the "knock and talk" with or without reasonable suspicion of criminal activity, the use of the tactic becomes suspicious when police officers are certain such activity is underway. (61) Once police officers establish probable cause or become convinced that criminal activity is occurring, the procedure loses its presumption of reasonableness and indicates bad faith. (62) The procedure's otherwise valid investigatory purpose becomes unnecessary once the police can obtain a warrant...