Friday, October 30, 2009
Craig M. Bradley (Indiana University Maurer School of Law--Bloomington) has published "Knock and Talk" and the Fourth Amendment in the Indiana Law Journal. Here is an excerpt from the introduction:
Under “knock and talk,” police go to people’s residences, with or without probable cause, and knock on the door to obtain plain views of the interior of the house, to question the residents, to seek consent to search, and/or to arrest without a warrant, often based on what they discover during the “knock and talk.” When combined with such other exceptions to the warrant requirement as “plain view,” consent, and search incident to arrest, “knock and talk” is a powerful investigative technique.
This Article explains how “knock and talk,” as approved by numerous United States courts of appeal as well as many state courts, has severely limited the Fourth Amendment protection afforded to homes, despite the Supreme Court’s stance that homes are heavily protected. Indeed, even though considerable disagreement exists among lower courts as to the extent of the “knock and talk” doctrine, it has never been directly discussed by the Court. However, what was essentially a “knock and talk” was considered and disapproved of in the often quoted, but no longer fully adhered to, 1948 case of Johnson v. United States.
This Article argues that the lower courts, as well as the Supreme Court, should return to the principles that Johnson announced. It proposes three possible solutions to the intrusiveness that the “knock and talk” technique imposes on the home in descending order of severity. The first is to ban “knock and talk” entirely when a particular home or suspect is the focus of police investigation. The second is to allow “knock and talk,” but to forbid police from using it as a means of avoiding the search and arrest warrant requirements. The third is to require warnings before police can seek consent to search homes or to arrest people at home without a warrant. The details and relative merits of these proposals are discussed in the last Part.