The Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
The police may enter a dwelling without a warrant if the officers possess probable cause to believe that a crime was recently committed on the premises, and probable cause to believe that the premises contain evidence or perpetrators of the suspected crime. The police must further establish the existence of an actual emergency on the basis of specific and objective facts indicating that immediate action is necessary to (1) prevent the imminent destruction of evidence, (2) protect the police officers or others, or (3) prevent the escape of a suspect. If the police discover evidence of a crime following the entry without a warrant, that evidence may be admissible.
There are few exceptions to the search warrant requirement. One of those exceptions is where the home owner gives his or her “unequivocal, specific, and freely and intelligently given” consent to search. For a consent to search to be valid, it must be freely and intelligently given and not the product or result of coercion or duress. When determining the validity of a consent to search, the prosecution must show by clear and convincing evidence that, under the totality of the circumstances, the consent was freely and voluntarily given.
In a recent case, police officers decided to make early-morning visits to defendant’s homes, knock, and request to search. The court found that the police conduct exceeded the scope of the implied license to knock and talk because the officers approached the homes during predawn hours and thus, trespassed. A “knock and talk,” when performed within its proper scope, is not a search at all. The proper scope of a knock and talk is determined by the “implied license” that is granted to solicitors, hawkers, and peddlers of all kinds. Thus, a police officer not armed with a warrant may approach a home and knock, because that is no more than any private citizen might do.
A simple “knock and talk” procedure has been upheld by the appellate courts as a valid police tactic and does not violate of the Fourth Amendment protections against unreasonable search and seizure.
Every challenge to a police-conducted search and seizure begins with the determination of whether the search was conducted with or without a warrant. The answer determines the approach that will be used to seek a court order suppressing the evidence illegally obtained. State and federal courts have consistently held that constitutional protections against unreasonable searches are especially strong when it comes to intrusions into the home. That is why it is important to work with a criminal defense attorney. By examining the factors, they can develop a defense strategy tailored to your situation.