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By Fred A. Simpson
Police investigation procedures allow officers to knock on doors of criminal suspects, be they the doors of hotels, motels, offices, or residences. The procedure is ostensibly one of information seeking. However, if in that process the officers see contraband in plain view that might incriminate their suspect, there is no constitutional protection, and evidence is not suppressed. Knock and talk requires balancing the intrusion of protected interests under the Fourth Amendment with the promotion of legitimate governmental interests, including those of police officer safety. In United States v. Gould, ___ F.3d __ (5th Cir. 2004), the Fifth Circuit struggled with the knock and talk issue, first with a panel review, and then an en banc review which reached new conclusions about the proper law of warrantless searches, particularly warrantless residential searches.
Deputy sheriffs received telephone warnings that a convicted felon with propensities for violence planned to kill two local judges. The officers went to the felon’s home, a 14 X 60 foot trailer, in order to talk to him, but with no intentions of making an arrest. (A typical “knock and talk” activity.) Another individual answered the door and told the deputies that their target was down the hall asleep in his bedroom, and he invited deputies to take a look. As deputies approached the bedroom, they saw the door was open but nobody was in the room. They looked under the bed and in the closets where they found three rifles. (Convicted felons have no lawful right to bear arms.) The officers then looked around outside and found the felon hiding in the woods and arrested him. He executed a consent to search and the rifles were seized.
The district court allowed suppression of the three rifles as evidence on grounds that the person who answered the door had no authority to allow deputies to search the bedroom, despite Government claims to the “protective sweep” doctrine
necessary to avoid any surprise attack by somebody who might be hiding. The district court noted that a protective sweep must be incident to an arrest.
The Fifth Circuit panel affirmed the district court in United States v. Gould, 326 F.3d 651 (5th Cir. 2003), but suggested an en banc review was appropriate so that the question of whether a protective sweep may be used where there is no arrest in progress. The en banc review resulted in a mixed decision that there is no hard and fast rule that protective sweeps are only allowable if they are conducted incident to an arrest, despite the fact that many of the cases seem to say otherwise.
The Fifth Circuit noted other requirements for a valid in-home protective sweep. First, the police may only enter the home legally for a legitimate law enforcement purpose. Second, there must be a reasonable, articulable suspicion that the area to be swept harbors an individual posing a danger to those on the scene. In other words, the sweep must be necessary for self protection because of a reasonable suspicion that an ambush may occur. Third, the search may be no more than a cursory inspection of those spaces where a person may be found. Last, there are two time limitations. The sweep may last no longer than necessary, and for only so long as police are justified in remaining on the residential premises.
One of the several dissenting justices noted that the facts of the Government’s case created a new moniker for the investigative technique: “knock, enter, maybe talk, and search.”