In State v. Boston, the SC Court of Appeals held that a “knock and talk” that resulted in charges of manufacturing crack cocaine was reasonable even though there was no probable cause that would have allowed the police to get a search warrant.
What is a “knock and talk,” and when is it okay for police to just show up at your door without a warrant and without probable cause to search? How do police get from a “knock and talk” to seizing evidence in your home without a warrant?
What is a “Knock and Talk?”
If any ordinary citizen can walk up to your house, knock on your door, and ask you questions, why can’t a police officer? When the police think there may be drug activity or other illegal activity in a residence, but they don’t have enough evidence to get a search warrant based on probable cause, what do they do?
In many cases, they can walk up to your front door, ring the doorbell, and say, “Hey there, how are you today? Mind answering a few questions? Mind if I have a look around?”
If you don’t mind answering a few questions, anything you say could become evidence against you in court later – you’re not in custody and therefore they do not have to Mirandize you before asking questions.
If you don’t mind if they have a look around, they get a free pass to search without the hassle of getting a search warrant based on probable cause – you just made their jobs much easier.
On the other hand, if you aren’t interested in chatting or letting them in, they just might see something illegal over your shoulder through the front door or through a window and then… plain view exception to the Fourth Amendment, no search warrant necessary.
When is a “Knock and Talk” Okay?
In SC, our appellate courts require reasonable suspicion before police can conduct a knock and talk, although police still do not need probable cause.
In Boston, the Court of Appeals found that there was reasonable suspicion justifying a knock and talk where:
- The officers were familiar with the apartment complex and knew that it was “a hot spot of narcotics activity,”
- The officer testified that, through his experience, he knew that drug dealers often used other people’s apartments to manufacture drugs,
- The manager of the apartment complex had reported being threatened and asked the department for help controlling the drug problem,
- The officer observed two men enter the home of a woman that he knew lived alone, had mental limitations, and who used drugs.
After they knocked on the door, the resident (according to the officer) let them inside where they saw two men cooking crack cocaine (the plain view exception to the Fourth Amendment).
When the men ran into the bathroom (probably to flush drugs down the toilet), the officers followed them (the “protective sweep” exception to the Fourth Amendment allows them to search a home for armed occupants), ordered them out of the bathroom, and searched one of them with his consent, finding crack cocaine and scales.
Then they went and got a search warrant…
This would not have been enough information to articulate probable cause for a search warrant, but it wasn’t a “random” knock and talk, at least.
Although the Fourth Amendment to the US Constitution doesn’t require probable cause before a police officer knocks on your door, the SC Constitution does have additional privacy protections that are violated unless an officer has reasonable suspicion of illegal activity.
In SC, a police officer cannot just walk up to your house and knock on the door, hoping to get a free pass to search or to see something illegal as they are standing on your porch. A “knock and talk” still doesn’t require probable cause, though.
What is reasonable suspicion and how is it different than probable cause?
A “Knock and Talk” Requires Reasonable Suspicion in SC
SC appellate opinions have defined reasonable suspicion as “a particularized and objective basis that would lead one to suspect another of criminal activity,” or “more than a general hunch but less than what is required for probable cause.”
An officer’s “experience and intuition” can be considered, but “a wealth of experience will [not] overcome a complete absence of articulable facts.” An officer’s “impression” that there is criminal activity, without confirmation, is not reasonable suspicion.
“Probable cause” means a reasonable basis for believing that evidence of a crime will be found – that sounds very similar to “reasonable suspicion.” The best way to define the difference between the two is to note that reasonable suspicion requires less evidence than probable cause.
A reasonable suspicion, although not necessarily rising to the level of probable cause, is more than a mere suspicion – there must be some articulable facts to support the officer’s belief that a crime is occurring or that contraband will be found.
The SC Constitution’s Right to Privacy
Article I, Section 10 of the SC Constitution provides additional protection against invasions of privacy that are not present in the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained.
Although the Fourth Amendment may not protect against random knock and talks, the SC Constitution does.
If it’s not random, however – if the officer can articulate some facts that would reasonably lead a person to believe that there was criminal activity – then an officer can knock on your door, engage you in conversation, ask for consent to enter, ask for consent to search, and look through any open doorways or windows in an attempt to find evidence that would allow them to go and get a search warrant.
Criminal Defense Attorney in Conway, SC
Attorney Johnny Gardner has over twenty years of trial experience defending misdemeanors and felonies in SC courtrooms.