Knock, Knock! Who’s There?
The knock-and-talk is an investigative technique by which an officer approaches the premises, usually a residence, and asks permission to go inside and talk.
In Kentucky v. King, 536 U.S. 452 (2011), the U.S. Supreme Court held that officers who approach a premises, knock, and loudly announce their presence, without more, do not create an unlawful exigency. Evidence observed in plain view during this encounter may be used to establish probable cause for a subsequent search warrant.
In that event, an officer may remain at the premises in order to secure the scene while a search warrant is sought. In such cases, a protective sweep (a limited search permitted under the Fourth Amendment) might be done. The purpose of a protective sweep of a premises is to guard against a possible attack by an undetected occupant, or, to prevent the destruction of evidence.
In some situations, a limited search based on reasonable suspicion is permissible as well. In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that the Fourth Amendment authorizes a frisk for weapons on a suspect who may be armed and dangerous based on specific, articulable facts. Also, in Michigan v. Long, 463 U.S. 1032 (1983), the Court held that the right to frisk extends to a vehicle.
The Fourth Amendment permits a limited protective sweep in conjunction with an in-home arrest, the Supreme Court held in Maryland v. Buie, 494 U.S. 325 (1990). After all, an in-home arrest may expose the officer to equal or even greater danger than posed in open surroundings during an encounter on the street or a roadside investigation.
Buie recognized an officer’s important interest in detecting persons other than the arrestee who might launch an attack. With an arrest warrant in hand, officers in Buie were entitled to enter and search anywhere in the house where the suspect might be found.
The expectation of privacy in the rest of the home does not mean those rooms are immune from entry. The Buie holding states:
“We also hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene…such a protective sweep…may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger.”
Buie deals with an arrest situation and does not specifically address the issue of a protective sweep in other home encounters. The Sixth Circuit U.S. Court of Appeals and other federal appellate circuit courts hold that a protective sweep is permissible during other times, as well, when an officer is lawfully present and develops probable cause to believe evidence may be present.
The Sixth Circuit case of U.S. v. Taylor, stands for the proposition that, “the principle enunciated in Buie with regard to officers making an arrest – that the police may conduct a limited protective sweep to ensure the safety of those officers – applies with equal force to an officer left behind to secure the premises while a warrant to search those premises is obtained. The officers in that case investigated a report of Taylor dealing drugs, selling illegal weapons, associating with an anarchist organization and possibly taking part in one or more murders. There was no probable cause to obtain a search warrant, so the officers decided to visit Taylor at his apartment to ask him a few questions.
The three officers arrived at Taylor’s apartment complex, knocked on his door and identified themselves as police. They heard shuffling sounds inside the apartment before Taylor’s brother answered and said he needed more time to answer the door. Taylor’s brother eventually opened the door and let the officers inside. The officers saw a one-inch marijuana stem on a coffee table. Taylor’s brother said there were no other drugs or people in the apartment. The officers told him they would secure the premises while one of them left to seek a search warrant based on the stem.
In securing the premises, the officers conducted a protective sweep for the purpose of assuring themselves there were no other people in the apartment. The sweep revealed Taylor, who was hiding in a bathtub behind the shower curtain. This was next to a bathroom closet large enough to conceal another person. Instead, inside the closet was a duffle bag containing approximately 20 to 30 pounds of marijuana. The officers did not seize this evidence until the search warrant was obtained.
The Sixth Circuit said the protective sweep was proper. The officers had heard shuffling sounds and there was a delay in answering the door. These circumstances gave the police reason to believe other persons may be present. The purpose of a protective sweep is limited to looking for persons who might endanger an officer’s safety:
In Taylor, the Court stated:
“We emphasize, however, that the purpose of such a protective sweep is to protect the safety of the officer who remains at the scene, and for that reason, the sweep must be limited to a cursory search of the premises for the purpose of finding persons hidden there who would threaten the officer’s safety.”
In conclusion, there is nothing improper about an officer knocking on a door and asking permission to enter and converse with an occupant of the premises. The encounter might result in the development of probable cause to seek a search warrant. If it does, police may secure the scene while the warrant is sought and conduct a protective sweep of the premises in the meantime.
The protective sweep must be supported by articulable facts that are stated with particularity. The proper purpose of a protective sweep is to look for persons hidden inside the premises and who may pose a danger to the police. Any incriminating evidence seen in plain view during the protective sweep may be seized and used to establish probable cause for a search warrant.