04-02: Knock and Talks
Case: Miller v. State, 29 FLW D186 (5th DCA)

Date: January 16, 2004

FACTS: Upon receiving an anonymous tip that unnamed individuals were involved in drug activity at a certain residence, the “tip” squad of the sheriff’s office went to the residence to perform a “knock and talk.” This technique is a valuable tool for law enforcement if applied correctly. The circumstances in this case, however, led the court to rule that it violated the defendant’s constitutional rights.

RULING: “Knock and talks” consist of a consensual encounter in which the person is not detained and ultimately a voluntary consent for officers to conduct a search is sought. The validity of a “knock and talk” is determined by a totality of the circumstances. If the encounter is deemed to be a detention instead of a consensual encounter, a minimum of reasonable suspicion is needed. In order for the encounter to be truly consensual, the person must freely and voluntarily be talking to the officers, with no submission to authority factoring into why the person continues to engage in the conversation. Some of the factors to be considered in determining whether the encounter is truly consensual are the show of authority by the officers, whether the person feels he or she is free to terminate the encounter, words and actions of the officers (that could suggest "authority" or indicate the person was not free to leave), and if the suspect is told he or she has the right to decline the encounter and go about his or her business.

In this case, the defendant had just exited her house and was on her way to a car parked in the driveway. Three deputies, wearing gun belts and black smocks emblazoned with the name of their department, encountered her. Two stood on the edge of the driveway at the street while the third one approached her. He advised that he needed to speak with her about possible drug activity and suggested that it would be better if they spoke inside the residence. He did not tell her that she had the right not to cooperate. Once inside, the officer asked her for an ID which he kept in his possession throughout the ensuing colloquy. He asked if there were any drugs in the house and she answered in the affirmative. She then retrieved some marijuana and crack cocaine from the bedroom.

The appellate court listed a litany of factors that included the encounter taking place at the defendant’s residence as opposed to a public place; the show of authority by three deputies dressed in raid outfits; the defendant being told that she was a suspect for a specific offense (drug activity); the one officer indicating a need to speak with her; and the fact that the officer kept her ID. Taking all these factors into consideration, the court ruled that the encounter was not consensual and that her retrieval of the drugs from the bedroom was involuntary.

Steve Brady
Regional Legal Advisor
Florida Department of Law Enforcement
Orlando Regional Operations Center

Officers should consult with their agency legal advisors to confirm the interpretation provided in this Update and to determine to what extent the case discussed will impact their activities.

For Further Information Contact:
Steve Brady
Regional Legal Advisor
Florida Department of Law Enforcement
Orlando Regional Operations Center