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California Law Regarding Search Warrants

KNOCK AND TALK: A TACTIC POLICE USE TO BYPASS THE WARRANT REQUIREMENT

It’s the middle of the night. Someone is banging on your door yelling for you to open the door. Whoever it is does not identify himself and you do not recognize the voice. The adrenaline rushing, you grab the gun in your safe and cautiously open your front door with your gun in hand but pointed safely towards the floor. Just before you are shot dead, you see it was the police banging at your door. Sounds outrageous but that is exactly what happened to a Florida man, Andrew Scott, who committed no crime. In fact, the police were investigating a crime that had nothing to do with Mr. Scott. Accounts of the incident vary but Mr. Scott’s girlfriend, who witnessed the incident said Mr. Scott never even raised his gun and was retreating from the front door right before he was shot.

Now this incident, unfortunate though it was, was an isolated incident. The police tactic, known as “Knock and Talk” is an investigative tool used when the police have no search warrant but believe there is reason to search a residence so they knock and “request” to search the residence. While police often use this tactic, they usually don’t kill someone in the process but you can see how it could quickly escalate into a dangerous situation. The police don’t normally politely knock on your door and politely ask if they may search your premises. Polite requests are easy to decline. Rather, the police typically intimidate the resident by banging on the front door and staging a threatening presence, sometimes with many officers, guns drawn and sometimes even in SWAT gear as happened in a Michigan case over the dangerous crime of …. marijuana butter.

In the Michigan case, seven officers dressed in tactical gear showed up at the residence at 4:00 in the morning. The residents, including children, inside the house were sleeping when the officers began pounding on the door. The officers wanted to search the residence but they didn’t have a warrant. The case is now before the Michigan Supreme Court after the Michigan Court of Appeals found the practice constitutional. Seems to me that this tactic is used as a way to bypass the warrant requirement. As one of the Michigan Supreme Court justices put it: “Let’s go to our scenario here which is our case: It’s 4 in the morning, there’s headlights that are shining into your house; there’s a number of different officers that are now on the premises; they’re wearing tactical gear; they have weapons; and they approach your front door. Do you think that the ordinary citizen in that situation feels that they have an obligation to comply?”

Actually, the ordinary citizen does not have the obligation to comply. The knowledgeable and, no doubt, brave, resident who refuses entry or search of their home without a warrant will often find out that the police have another trick up their sleeve. The police will menacingly stake out the home while they find a willing judge to sign a warrant—even if the warrant is, let’s say, creatively drafted.

With the “militarization” of our police forces, it’s starting to look like a war zone. Perhaps that sounds overstated, until you get caught in the cross-hairs. Knock and Talk is “an increasingly attractive investigative tool and published cases approving knock and talks have grown legion.” That quote is from Supreme Court nominee Neil Gorsuch. If you consent to the search, the search is constitutional. Like Mr. Scott, you might have nothing to hide, but even for the innocent, Knock and Talk, especially when it occurs in the wee hours of the night, is fraught with danger.

Criminal defense attorney William Weinberg is available to consult with you regarding any criminal matter. You can reach him at his Irvine office at 949-474-8008 or email him at bill@williamweinberg.com.