I love “Cop Talk”. For instance,” A “Protective Sweep” is code for “Let’s go look for drugs in this house.” And, “Pat Down for Officer Safety” is code for “Let’s see if you have any drugs in your pockets.” Now I have my new favorite one. The “Knock and Talk” which is code for “Courtesy Drug Raid”.
Last week, on November 9, 2012, the Montgomery County Court of Common Pleas (2d District) addressed the investigative technique called, “Knock and Talk” or “Knock and Advise” in State v. Miller. Mr. Miller was indicted on a bunch of drug counts after Dayton P.D. knocked on his front door without a warrant, eventually saw drug stuff in plain view, stepped inside and did a protective sweep of the home. During the protective sweep additional drug stuff was in plain view. Based upon all of this drug stuff in plain view inside Mr. Miller’s home, the Dayton officers thought it might be a good idea to get a search warrant to search the rest of the house. They did. I am not sure how much more drug stuff was found after the warrant was secured but they had plenty on him after the courtesy visit raid.
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Antonio Miller lost his challenge to the Dayton Police Department’s “Knock and Advise” search technique only to have the Court of Appeals reverse and grant him the win (for now). It seems Antonio didn’t appreciate a half dozen drug cops in tactical gear just knocking on his door to see let him know that the neighbors were complaining about possible drug activity at his home. I’d be upset, too. That’s embarrassing to have all those cops show up at my drug house. Very bad for business. Kind of like my favorite Mexican restaurant getting shut down by the Health Inspectors. So, Antonio did what I’d love to do if someone knocks on my door that I don’t want to talk to – he just slammed the door shut and locked the door. Well, that is where this case goes sideways.
The cops weren’t going to take no for an answer after spending all that time getting everyone together, meeting at parking lot a mile away, checking all their communication equipment, loading their weapons, strapping on 4 holsters in every bodily crevice, and pretty much getting jazzed up for a drug raid. . .I mean “Knock and Talk” neighborly visit. I would love to have been a fly on the stoop when the door gets slammed in front of 6 cops ready for a raid. “Um, Sarge, did he just shut the front door in your face?”
There are some fair minded judges in Ohio that have decided that when a resident does not want to talk to police who choose to use the “Knock and Talk” investigative technique, then the Man needs to turn and leave. We all know that isn’t going to happen. (“O.K. guys, that’s a wrap. Antonio doesn’t want to talk to us. Let’s call it a day”). That is exactly what is supposed to happen. When law enforcement officers who are not armed with a warrant knock on a door, they can do no more than any private citizen might do. And whether [the person at the door is an officer or a private person], the occupant has no obligation to open the door or to speak.” Kentucky v. King, U.S. , 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011). The occupant, now alerted to the police presence, may even choose to open the door and speak but need not allow officers to enter and may refuse to answer questions at any time.
Id. Moreover, “when the police knock on a door but the occupants choose not to
respond or speak, or maybe even choose to open the door and then close it, the officers must bear the consequences of the method of investigation they’ve chosen.”
U.S. v. Ramirez, 676 F.3d 755 (8th Cir.2012). In other words, the police must retreat from the suspect’s residence and attempt to uncover new avenues by which to continue their investigation.
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Antonio Miller’s case happened 2 years or so before Kentucky v. King was decided by the United States Supreme Court so you can’t really fault the police officers for waiting 45 seconds and then knocking again. When Antonio opened the door again, the police stepped inside because they saw some baggies and a scale on the coffee table in the living. Once they were inside, they saw more evidence of drug activity. Concerned for their safety after waltzing into a drug house without a warrant and the concern that Antonio and his pals might have the mistaken belief that they can defend their house, the officers did a protective search of the home. Alas, more drug stuff was in plain view. Presto, a successful drug raid on a home without messing with a silly warrant.
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Not so fast says the Montgomery County Court of Appeals. Once Antonio manifested his intent not to talk to the police by shutting the door, the police have to leave and go find another way to trick Antonio and his pals into searching the house. Or, how about running the drug tips by a judge and see if a judge will give you a search warrant.
Although the courtesy drug raid is quick and efficient, some drug dealers might catch on pretty quickly that (a) they don’t have to open the door or (b) they can open the door, smile at you, then slam the door and lock it in front of you and your police buddies.