Chapter 54: Knock and Talks
Generally
Defined: A “knock and talk” is an investigative contact in which officers go to a suspect’s home to confirm or dispel their suspicions by talking with the suspect or seeking consent to search.[1] Also see Chapter 11 Investigative Contacts.
When used: Knock and talks are often used when an investigation has stalled and investigators determine that alerting the suspect is outweighed by the absence of practical alternatives.
Legality: Knock and talks are “an accepted investigatory tactic”[2] and a “legitimate investigative technique.”[3] Their legitimacy, however, depends on whether officers behaved like guests seeking voluntary cooperation. If a court finds the suspect reasonably believed he was not free to end the encounter, it may be a de facto detention—unlawful absent reasonable suspicion—risking suppression of statements and consent-based evidence. Likewise, if the officers’ conduct on the property amounted to a “search,” any observations may be suppressed absent exigency or consent.
Relevant Circumstances
: The following circumstances bear on whether a knock and talk was consensual or an illegal search or seizure:
Time of arrival: These should ordinarily occur during normal waking hours; arriving at other times typically is inconsistent with a guest’s conduct.[4] An exception may apply if officers reasonably believed the occupants were still awake.[5]
Number of officers: There is no hard cap, but two officers is a good rule of thumb. More officers at the door can look like a show of authority and create coercion that undermines consent.[6]
Walking on pathways: Officers must use paths or areas where visitors have implied authorization to go.[7] Also see Chapter 17 Driveways and Yards: Entering
Behavior en route to the door: While approaching, officers must not do things ordinary visitors wouldn’t—e.g., loiter, sweep with a drug-sniffing K-9, or use a metal detector.[8]
If occupants signal they do not wish to talk or open the door, officers may not remain on the property.[9] As the Supreme Court put it, officers are impliedly authorized “to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.”[10]
Making contact: The manner of contact at the front door is often crucial because conduct and context can make it apparent the resident “was not at liberty to ignore the police presence and go about his business.”[11] Courts look at how officers got attention, their demeanor, and arrival time.
Knocking on front door: Absent unusual circumstances, officers should go directly to the front door, not a back door. If another door is reasonably used by visitors, officers may go there instead.[12]
Demanding entry: An encounter at the doorway is a seizure if officers order residents to open the door.[13]
Polite knocking vs. persistence: Knocking or ringing should mirror an ordinary visitor—not a command. Loud, continuous, or repeated knocking can be construed as an order to open, converting the encounter into a detention.[14] That said, the Supreme Court has held that neither loud knocking nor a loud announcement automatically creates a seizure; a “forceful knock may be necessary” to alert occupants, and a clear announcement helps them know who is at the door.[15]
Officers’ attitude: Friendly, respectful demeanor signals a request for voluntary cooperation; an overbearing or officious tone may imply a right to answers or a search, undermining consent.[16]
Seizing Evidence in Plain View from the Door
Nonconsensual opening of door: If officers command or coerce someone to open the door, any evidence seen from the threshold is suppressed as the product of an illegal “visual entry.”[17]
Consensual opening of door: If the suspect voluntarily opens the door and officers see evidence in plain view, they may immediately enter and seize it if they reasonably believe the suspect knew or would soon realize they saw it—creating a likely attempt to destroy it.[18] Also see Chapter 19 Exigent Circumstance Searches (Investigative Emergencies, Destruction of evidence).
Securing the premises: After entry and seizure, officers may not search further without a warrant or consent. They may secure the premises pending a warrant if there is reason to believe evidence would be destroyed, hidden, or compromised otherwise. See Chapter 30 Securing Premises Pending Warrant.
Real vs. Fabricated Exigent Circumstances
Real exigencies: During a knock and talk, officers may observe or hear things indicating the suspect has been alerted and is destroying (or about to destroy) evidence. If those observations, combined with existing incriminating facts, create probable cause that destructible evidence is present and imminently at risk, officers may forcibly enter under the destruction-of-evidence exigency. See Chapter 19 Exigent Circumstance Searches (Investigative Emergencies, Destruction of evidence).
Fabricated (“Do-it-yourself”) exigencies: Even if a real threat exists, a warrantless entry is unlawful if officers unnecessarily created the threat themselves. See Chapter 19 Exigent Circumstance Searches (Investigative Emergencies, Destruction of Evidence, Exception: Police-created exigency).
Notes
[1] CAL: P v. Rivera (2007) 41 C4
304, 309 ["Consensual encounters may also take place at the
doorway of a home."]; P v. Michael (1955) 45 C2 751, 754
["it is not unreasonable for officers to seek interviews with
suspects or witnesses or to call upon them at their homes for such
purposes"]. OTHER: US v. Gomez-Moreno (5C 2007) 479
F3 350, 355 ["the purpose of a 'knock and talk' approach is to
make investigatory inquiry or, if officers reasonably suspect
criminal activity, to gain the occupants' consent to search"];
US v. Cruz-Mendez (10C 2006) 467 F3 1260, 1264 ["'knock and
talk' is a consensual encounter and therefore does not contravene
the Fourth Amendment, even absent reasonable suspicion"];
US v. Weston (8C 2006) 443 F3 661, 667 ["the officers
approached the front door to announce their presence, to inquire
about the stolen vehicles, and to request consent to search the
remainder of the property. This tactic [is] commonly referred to
as a 'knock and talk'"]. ALSO SEE:
Schneckloth v. Bustamonte (1973) 412 US 218, 227 ["In
situations where the police have some evidence of illicit
activity, but lack probable cause to arrest or search, a search
authorized by a valid consent may be the only means of obtaining
important and reliable evidence."].
[2] QUOTE FROM: US v. Roberts (5C
2010) 612 F3 306, 310. OTHER: US v. Jones (5C 2001)
239 F3 716, 720 ["Federal courts have recognized the 'knock and
talk' strategy as a reasonable investigative tool"].
[3] QUOTE FROM: US v. Lucas (6C
2011) 640 F3 168, 174.
[4] 9th CIR: US v. Cormier (9C
2000) 220 F3 1103, 1110 [the courts "have recognized that
nocturnal encounters with the police in a residence (or a hotel or
motel room) should be examined with the greatest of caution."];
US v. Crapser (9C 2007) 472 F3 1141, 1146 ["The encounter
occurred in the middle of the day"]. OTHER:
US v. Tavolacci (DCC 1990) 895 F2 1423, 1425 ["The time
[about 5:30 p.m.] ] was not unusual"; US v. Abdenbi (10C
2004) 361 F3 1282, 1288 [officers arrived at about 6:15 a.m.
"because they hoped to speak to [him] before he left for work."];
US v. Perez-Diaz (1C 2017) 848 F3 33, 40 ["8:30 a.m. is
hardly unreasonable]. COMPARE: US v. Lundin (9C
2016) 817 F3 1151, 1159 ['the officers knocked on Lundin's door
around 4:00 a.m. without evidence that Lundin generally accepted
visitors at that hour"]; US v. Jerez (7C 1997) 108 F3 684,
687 [knock and talk invalidated because the officers had arrived
at about 11 p.m. and it appeared that the residents had gone to
bed; e.g., "no sounds were heard"]. NOTE: The courts have
recognized the "special vulnerability" of people "awakened in the
night by a police intrusion at their dwelling place" (US v. Jerez
(7C 1997) 108 F3 684, 690) and the "peculiar abrasiveness" of such
intrusions. US v. Ravich (2C 1970) 421 F2 1196, 1201.
[5] 9th CIR:
Bailey v. Newland (9C 2001) 263 F3 1022, 1026 [although the
time was 2:15 a.m., "the lights were on in the room"].
[6] CAL: P v. Michael (1955) 45
C2 751, 754 ["the appearance of four officers at the door may be a
disturbing experience"]. 9th CIR:
US v. Washington (9C 2004) 387 F3 1060, 1068 ["Washington
was confronted by six officers"]; Orhorhaghe v. INS (9C
1994) 38 F3 488, 494 ["Orhorhaghe was faced with the threatening
presence of several officers."]. OTHER:
US v. Maxi (11C 2018) 886 F3 1318, 1327 [ten officers, some
taking tactical positions]; US v. Gomez-Moreno (5C 2007)
479 F3 350, 355 ["the officers did not engage in a proper 'knock
and talk' but instead created a show of force when ten to twelve
armed officers met at the park, drove to the residence, and formed
two groups—one for each of the two houses—with a helicopter
hovering overhead"]; US v. Quintero (8C 2011)
648 F3 660, 670 [knock and talk in a hotel room by "three
officers, and two security guards" plus a hotel manager];
US v. Conner (8C 1997) 127 F3 663, 666, fn.2 ["Four police
officers were positioned at or near the door."].
BUT ALSO SEE: P v. Munoz (1972) 24 CA3 900, 905
["The fact there were four officers does not in itself carry an
implied assertion of authority."]. COMPARE:
US v. Cormier (9C 2000) 220 F3 1103, 1110 ["Cormier was
confronted by only Peters when he opened the door and she was
dressed in plain clothes"]; US v. Spence (10C 2005) 397 F3
1280, 1284 ["Although there were three agents in Spence's home,
only [two of them] were involved in questioning Spence."];
US v. Abdenbi (10C 2004) 361 F3 1282, 1288 ["presence of
three officers" was not "inherently coercive"].
[7] USSC:
Florida v. Jardines (2013) 569 US 1,8 ["We have accordingly
recognized that the knocker on the front door is treated as an
invitation or license to attempt an entry, justifying ingress to
the home by solicitors, hawkers and peddlers of all kinds. This
implicit license typically permits the visitor to approach the
home by the front path, knock promptly, wait briefly to be
received, and then (absent invitation to linger longer) leave ....
Thus, a police officer not armed with a warrant may approach a
home and knock, precisely because that is no more than any private
citizen might do."].
[8] USSC:
Florida v. Jardines (2013) 569 US 1,8 ["To find a visitor
knocking on the door is routine (even if sometimes unwelcome); to
spot that same visitor exploring the front path with a metal
detector, or marching his bloodhound into the garden before saying
hello and asking permission, would inspire most of us to—well,
call the police."]. OTHER:
Morgan v. Fairfield County (6C 2018) 903 F3 553, 563 ["the
officers' right to enter property like any other visitor comes
with the same limits of that 'traditional invitation'"].
[9] OTHER: French v. Merrill (1C
2021) 15 F4 116, 130 [occupants refused to come to door; officers
kept trying].
[10] QUOTE FROM:
Florida v. Jardines (2013) 569 US 1, 8.
[11] USSC:
Florida v. Bostick (1991) 501 US 429, 436.
[12] USSC:
Carroll v. Carman (2014) 574 US 13, 20 [in a thoroughly
unhelpful decision, the Supreme Court summarily ruled that it is
debatable whether officers must make their initial contact at the
front door or whether they may use "any entrance that is open to
visitors"]. OTHER: US v. Walker (11C 2015) 799 F3
1361, 1363 ["the exception is geographically limited to the front
door or a minor departure from it"].
[13] CAL: P v. Shelton (1964) 60
C2 740, 746 ["The right to seek interviews with suspects at their
homes does not include the right to demand that a suspect open his
door."]. 9th CIR: US v. Winsor (9C 1988) 846 F2
1569, 1573, fn.3 ["the police knocked on the door, identified
themselves as police, and demanded that the occupants open the
door, and that Dennis Winsor opened the door on command. On these
facts, there can be no consent as a matter of law"]. OTHER:
US v. Edmondson (11C 1986) 791 F2 1512, 1515 ["FBI. Open
up."]; US v. Carloss (10C 2016) 818 F3 988, 992 ["The
home's occupant remains free to terminate the conversation or even
to avoid it altogether by not opening the door."];
US v. Reeves (10C 2008) 524 F3 1161, 1167 ["Opening the
door to one's home is not voluntary if ordered to do so under the
color of authority."]; US v. Conner (8C 1997) 127 F3 663,
666, fn.2 ["Open up"]; US v. Quintero (8C 2011) 648 F3 660,
670 [officer "commanded" the suspect to come to the door];
US v. Gomez-Moreno (5C 2007) 479 F3 350, 355-56 ["When
officers demand entry into a home without a warrant, they have
gone beyond the reasonable 'knock and talk' strategy of
investigation."].
[14] Bailey v.
Newland (9C 2001) 263 F3 1022, 1030 [the officer knocked
"for one and a half to two minutes, while identifying himself as a
police office [and] stated that it was his intention to stay at
the door until someone answered it"]. OTHER:
US v. Jerez (7C 1997) 108 F3 684, 690 ["The deputies'
persistence in the face of the refusal to admit, transformed what
began as an attempt to engage in a consensual encounter into an
investigatory stop."]; US v. Edmondson (11C
1986) 791 F2 1512, 1515 ["FBI. Open up."]; US v. Conner (8C
1997) 127 F3 663, 666, fn.2 [the officers "knocked on the door
longer and more vigorously than would an ordinary member of the
public. The knocking was loud enough to awaken a guest in a nearby
room and to cause another to open her door."];
US v. Reeves (10C 2008) 524 F3 1161, 1168-69 ["three
officers pounded on Reeves' door and window while yelling loudly
identifying themselves as police officers. They continued this
conduct consistently for at least twenty minutes"].
COMPARE: US v. Cormier (9C 2000) 220 F3 1103, 1109
[the officer "knocked on the door for only a short period spanning
seconds"]; US v. Crapser (9C 2007) 472 F3 1141, 1146 ["a
single, polite knock on the door"]; US v. Tobin (11C 1991)
923 F2 1506, 1512 [although officers "knocked continuously for
three to four minutes," an illegal seizure did not result because
they did not demand entry]; US v. Kim (3C 1994) 27 F3 947,
951 [the encounter "began with a polite knock on the door"].
[15] QUOTE FROM:
Kentucky v. King (2011) 563 US 452, 468.
[16] CAL: P v. Boyer (1989) 48
C3 247, 268 ["The manner in which the police arrived at
defendant's home, accosted him, and secured his 'consent'…
suggested that they did not intend to take 'no' for an answer."];
P v. Franklin (1987) 192 CA3 935, 941 ["It is not the
nature of the question or request made by the authorities, but
rather the manner or mode in which it is put to the citizen that
guides us in deciding whether compliance was voluntary or not."].
9th CIR: Orhorhaghe v. INS (9C 1994) 38 F3 488,
495-96 [the officers behaved in an "officious and authoritative"
manner]. COMPARE: US v. Cormier (9C 2000) 220 F3
1103, 1110 [the officer "never spoke to Cormier in an
authoritative tone or led him to believe that he had no choice
other than to answer her questions"]; US v. Abdenbi (10C
2004) 361 F3 1282, 1292 ["the encounter was calm and orderly with
no show of force"].
[17] QUOTE FROM:
US v. Winsor (9C 1988) 846 F2 1569, 1573 ["the police did
effect a 'search' when they gained visual entry into the room
through the door that was opened at their command"]. CAL:
P v. Shelton (1964) 60 C2 740, 747 [view of the interior
was "made possible only by a wrongful assertion of authority"].
OTHER: US v. Mowatt (4C 2008) 513 F3 395, 400 ["It
is well established that a search occurs for Fourth Amendment
purposes when officers gain visual or physical access to a room
after an occupant opens the door not voluntarily, but in response
to a demand under color of authority."]; US v.
Conner (8C 1997) 127 F3 663, 666 ["an unconstitutional
search occurs when officers gain visual or physical access to a
motel room after an occupant opens the door not voluntarily, but
in response to a demand under color of authority"]; US
v. Tobin (11C 1991) 923 F2 1506, 1512 ["If the
circumstances indicate that [the suspect] opened the door in
response to a show of official authority, then [he] cannot be
deemed to have consented to the agent's obtaining the olfactory
evidence indicating the presence of marijuana"].
[18] USSC:
Kentucky v. King (2011) 563 US 452, 460 ["to prevent the
imminent destruction of evidence has long been recognized as a
sufficient justification for a warrantless search"]. OTHER:
US v. Maxi (11C 2018) 886 F3 1318, 1329 [the officer "could
see a substantial quantity of drugs behind Mr. Maxi when Maxi
opened the door"]; US v. Scroger (10C 1996) 98 F3 1256,
1260 ["it is highly likely that the evidence would have been
destroyed or moved if the officers had waited to apprehend Scroger
until they had obtained a warrant"].Exigent Circumstance Searches