09- 02: "Knock and Talk" Encounter, Followed by a Voluntary Consent to Search a Residence, did not Constitute Illegal Police Conduct
FLORIDA CASE LAW UPDATE 09-02
Case: State v. Navarro, 2nd DCA , 34 FLW D1021a
Date: May 28, 2009 (Opinion filed: May 22, 2009)
Subject: "Knock and Talk" encounter, followed by a voluntary consent to search a residence, did not constitute illegal police conduct
FACTS: After several subjects were arrested in Polk County regarding an indoor marijuana grow operation, Hillsborough County Sheriff's Office deputies ran the subjects' names through the Property Appraiser's website to determine if any of them owned property in Hillsborough County. One of the subjects did own a residence in Hillsborough County, and the HCSO Deputies decided to initiate a "knock and talk" at the residence, with the intent of obtaining a consent to search the premises, and determining if the residence was being utilized for the cultivation of marijuana. After initiating the "knock and talk" and obtaining consent to search, marijuana plants were in fact located, and the occupants were arrested. In a motion to suppress, the defendants alleged that the consent given was only an acquiescence to authority, and was therefore involuntary. At the hearing, the HCSO deputies testified that they had no probable cause or even reasonable suspicion to seek the consent to search the premises. There was no tip from an informant, or significant investigative activity conducted prior to seeking the consent. The only "investigation" conducted consisted of a drive-by which revealed that the windows in the garage door of the premises were painted over, which the deputy testified was "sometimes indicative" of marijuana cultivation. The trial court granted the motion to suppress, ruling that the "knock and talk" encounter constituted illegal police conduct, because it was not based on a tip or complaint. The state appealed.
RULING: The Second District Court of Appeal reversed the trial court, and held that the search was not improper. The DCA defined a "knock and talk" as "an investigative technique whereby an officer knocks on the door to a residence and attempts to gather information by explaining to the occupants the reason for the police interest." Citing a long line of Florida and federal case law, the court stated that "a 'knock and talk' is considered a legitimate investigative procedure as long as it does not become a "constructive entry," and that a "knock and talk" is a "purely consensual encounter, which officers may initiate without any objective level of suspicion." The court cited federal case law holding that "officers are allowed to knock on a residence's door or otherwise approach the residence seeking to speak to the inhabitants just as any private citizen may." Accordingly, the court held that the deputies use of the "knock and talk" encounter based solely on their "hunch" was not improper, and that no tip or complaint was necessary.
NOTES: Officers should continue to ensure that any consent to search obtained subsequent to a "knock and talk" is genuinely freely and voluntarily provided, and given by someone who has the authority to grant access to the areas desired to be searched. If a premises is not open to public access (e.g. inability to approach due to a locked gate that restricts people from coming to the front door), the entry onto the property without consent may become an issue. If you encounter this type of situation, contact your legal advisor for assistance before entering the property.
Regional Legal Advisor
Florida Department of Law Enforcement
Jacksonville 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.