Knock & Talk
Knock and talk is a legitimate investigative technique that occurs at the home of a suspect or an individual with information about an investigation. A number of courts recognize that knock and talks are consensual encounters that do not violate the Fourth Amendment. The recently decided case United States v. Crapser addresses the consensual knock-and-talk technique and application.
In Crapser, the 9th U.S. Circuit Court of Appeals affirmed the conviction of a defendant arrested by Multnomah County (Ore.) Sheriff s deputies for being a felon in possession of a firearm in violation of a federal statute. Specifically, the appellate court held that 1) the officers initial contact with the defendant was not a seizure for Fourth Amendment purposes; 2) even if the initial contact was a seizure, it was a Terry stop supported by reasonable suspicion; and 3) the trial court s finding that the defendant s consent to search of his person, motel room and duffel bag was voluntary was not clearly erroneous.
The facts in Crapser are not spectacular but certainly reflect the innocuous encounters police officers routinely face day in and day out. In July 2003, a Multnomah County Sheriff s deputy conducted a traffic stop. During the course of the stop, the deputy located a pressure cooker in the trunk and suspected it had been used in the manufacture of methamphetamine. The driver of the vehicle told the deputy the pressure cooker belonged to Gunnar Crapser, who was staying at a nearby motel with a white female dancer named Summer Twilligear. The deputy also learned Crapser may have had an outstanding warrant.
The deputy decided to go to the motel to investigate whether Crapser was indeed the man wanted in the warrant and to try to knock and talk his way into obtaining consent to search the motel room for unlawful activity related to the manufacture or use of methamphetamine.
The deputy arrived at the motel at approximately 1100 hrs with five officers assisting him. They confirmed with the motel manager that Twilligear was renting a room. The deputies went to the door of the room, which was located next to the parking lot and accessible to any person walking in the parking lot or on the sidewalk that ran between the parking lot and the door. All but one of the deputies wore their uniforms. All of the deputies sidearms were visible (except the one plainclothes officer who was carrying a concealed weapon), but each weapon remained holstered at all times.
Upon the deputies knock on the door, a white woman later identified as Twilligear pulled back the curtains and made eye contact with the deputies. One of the deputies asked her to open the door so he could speak with her. Twilligear nodded and closed the curtains. The deputies remained outside the door, and for approximately two minutes, the deputies could hear what sounded like people moving things around in the room. Twilligear then opened the door and she, along with Crapser, stepped outside, closing the door behind them.
The deputies separated the two individuals and conducted two separate conversations with them while standing approximately 10 25 feet apart. The deputies did nothing to block or physically keep Twilligear or Crapser from walking away or returning to their room, nor did they otherwise assert authority over their movements.
When speaking with Twilligear, the deputies informed her why they were there. During the conversation, the deputies learned Twilligear used methamphetamine, but she denied she was cooking drugs or that there were any chemicals related to the manufacture of drugs in her room.
When speaking with Crapser, the deputies noticed he looked very nervous. The deputies told Crapser they were going to check his identification in their computer system. While waiting for the information to come back, Crapser unexpectedly pulled out a syringe from his pocket, stating, This is all I have on me. The syringe was capped and contained a clear liquid. The deputies suspected it was methamphetamine.
After confirming Crapser was not the individual wanted in the warrant, and after learning he had spent the previous night with Twilligear, the deputies asked him if he would consent to a search of his person. He responded affirmatively. The search revealed three or four more syringes and a small baggie containing what appeared to be methamphetamine. The deputies arrested Crapser for possession of a controlled substance and gave him his Miranda warnings.
The deputies told Crapser they suspected he and Twilligear were involved in the manufacture of methamphetamine in the room and asked for their consent to search the room. Evidently concerned about being held accountable for items in Crapser s bags, Twilligear yelled in Crapser s direction that he should own up to what he possessed in the room. At that time, Crapser told the deputies one of his bags contained a 9mm handgun and a shotgun.
Both individuals signed a consent-to-search form in response to the deputies requests to search the room. The search led the deputies to the weapons in a duffel bag previously described by Crapser.
Appeals Court Ruling
In October 2003, a grand jury returned a three-count indictment. However, Crapser filed a motion to suppress, arguing the officers violated the Fourth Amendment when they detained him because they had no reasonable suspicion to seize him and search his person or motel room. The motion was denied, and without waiving his right to appeal the district court s rulings on his motion to suppress, Crapser pled guilty to the illegal firearm count in exchange for the dismissal of the other two counts. On appeal, the 9th Circuit addressed 1) whether the initial contact was consensual; 2) if Crapser was seized, whether the police had reasonable suspicion to stop him; and 3) whether Crapser s consent to search his person, the motel room and duffel bag were voluntary.
Consensual Initial Contact
The appellate court first addressed whether the initial conversation with Crapser was a seizure or, alternatively, was voluntary and consensual. The court held it was the latter. In so holding, the appellate court reiterated the general rule regarding knock-and-talk encounters:
Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man s castle with the honest intent of asking questions of the occupant thereof whether the questioner be a pollster, a salesman, or an officer of the law.
According to the 9th Circuit, this view has now become a firmly-rooted notion in Fourth Amendment jurisprudence.
According to the appellate court in Crapser, the knock and talk resulted in a voluntary, consensual encounter between Crapser and the deputies. There was no evidence the police demanded Twilligear to come out and talk to them. The deputies, while armed, avoided drawing attention to their weapons. The deputies did not use physical force, nor did they make any effort to force their way into the motel room. The encounter occurred in the middle of the day on a sidewalk in public view. Finally, there was no evidence the deputies made any attempts to prevent Crapser and Twilligear from leaving.
Reasonable Suspicion, If Seized
Alternatively, the 9th Circuit held that even if the initial encounter was not consensual and was a seizure, it was a Terry stop supported by reasonable suspicion. As police officers learn early on in their careers, they are permitted to briefly detain people as long as they can articulate the basis, or reasonable suspicion, for that detention.
In this case, there were two bases for the detention. First, the deputies, prior to learning otherwise, had a reasonable suspicion Crapser was wanted on a warrant. Second, the deputies had a reasonable suspicion Crapser was engaged in the manufacture of methamphetamine. In fact, prior to Crapser pulling out the syringe, the officers knew four things: 1) Crapser exhibited nervous behavior; 2) the deputy who conducted the original traffic stop that resulted in locating the pressure cooker (known to be used for manufacturing methamphetamine) learned from the driver it belonged to Crapser; 3) Twilligear admitted to being a methamphetamine user; and 4) while deputies waited for Twilligear to emerge from the motel room, they heard items being moved around.
According to the appellate court, these facts taken together are enough for a reasonable police officer to suspect Crapser is engaged in criminal activity. Admittedly, each of these activities by themselves does not indicate criminal behavior, but that is not the proper test in determining whether police officers have reasonable suspicion to conduct a Terry stop. The proper test in determining reasonable suspicion under Terry is to look at the totality of the circumstances. In fact, the Supreme Court recently admonished that Terry precludes this sort of divide-and-conquer analysis.
In response, Crapser argued that even if reasonable suspicion exists, a Terry stop is prohibited at a person s residence. The 9th Circuit Court of Appeals rejected this argument, stating, We now hold that when a suspect opens the door of his residence in response to a non-coercive knock-and-talk request, the police may temporarily seize the suspect outside the home (or at the threshold) provided that they have reasonable suspicion of criminal activity.
The appellate court was careful to point out, however, that prior cases establish that Terry does not apply inside a home. Even so, [t]here is a critical difference . . . between the inside of a home and the outer threshold and beyond. . . . That difference is the suspect s expectation of privacy. According to the court, when Crapser opened the motel room door and stepped outside, he surrendered his heightened expectation of privacy and all of the Fourth Amendment protections that accompany it, to include the right not to be detained based on reasonable suspicion.
Defendant s Consent to Search
The appellate court next determined whether Crapser voluntarily consented to the search of his person, the motel room and the duffel bag. The court stated that to determine consent is voluntary, it considers whether:
1) the defendant is in custody;
2) the arresting officers had their guns drawn;
3) Miranda warnings were given;
4) the defendant was notified that he had a right not to consent; and
5) the defendant had been told a search warrant could be obtained.
While Crapser was in custody at the time he gave consent, the appellate court was not persuaded it negated voluntary consent, because a person in custody is capable of giving valid consent to search. With respect to the four remaining issues, the court found they were resolved in favor of voluntary consent. As such, the court upheld the trial court s finding that Crapser knowingly and voluntarily consented to the search.
United States v. Crapser reaffirms that knock and talk does not violate the Fourth Amendment. Under the rule permitting this technique, no Fourth Amendment search or seizure occurs when police officers who enter private property restrict their movements to those areas generally made accessible to visitors to engage in non-coercive questioning. This case is also important because it held a Terry stop can occur outside or at the threshold of (but not inside) a suspect s residence.
Doing knock and talks is part of good police work. It s another valuable tactic an officer should consider using when the circumstances are right.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
1. See United States v. Chambers, 395 F.3d 563, 568 n.2 (6th Cir. 2005); United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001); United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000); United States v. Jerez, 108 F.3d 684, 691 92 (7th Cir. 1997).
2. 472 F.3d 1141 (9th Cir. 2007).
3. The 9th Circuit Court of Appeals has federal jurisdiction over Washington, Oregon, California, Montana, Idaho, Nevada, Arizona, Alaska and Hawaii.
4. The defendant was charged under 18 U.S.C. 922(g)(1) which states that it shall be unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate of foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
5. See Terry v. Ohio, 392 U.S. 1 (1968) (stating that in determining whether an officer had reasonable suspicion to stop an individual, weight must be given to the specific reasonable inferences which the officer is entitled to draw from the facts in light of his experience).
6. Crapser, 472 F.3d at 1146 (citing Davis v. United States, 327 F.3d 301, 303 (9th Cir. 1964)).
7. Id. at 1146 (citations omitted).
8. Id. at 1148 (citing United States v. Arvizu, 534 U.S. 266, 274 (2002)).
9. Id. at 1148.
10. Id. at 1149.
12. Id. at 1149 (citing United States v. Jones, 286 F.3d 1146, 1152 (9th Cir. 2002)).
13. Id. (citing United states v. Lindsey, 877 F.2d 777, 783 (9th Cir. 1989)).