“Knock and talk” is a routine used by the police during drug busts. In a “knock and talk,” the police approach a house or apartment in which they suspect drug dealing is going on. They listen outside the door for a short period of time, then they knock on the door in an attempt to persuade the occupants to give them permission to enter. If the consent is forthcoming, they enter and interview the occupants; if not, they try to see from their vantage point at the door whether drugs or drug paraphernalia are in plain view. If they are, they make a warrantless entry. Thus, the “knock and talk” does not require the issuance of a warrant. Although this has been a successful approach to combating drug problems, police officers must understand the circumstances in which courts have held the practice to be unconstitutional. When that happens, another dealer is back out on the streets because his motion to suppress evidence is inevitably granted. United States v. Johnson, 170 F.3d 708 (7th Cir. 1999), is just such a case.
In December, 1996 the Milwaukee Police Department (MPD) received a citizen's report that there was probable drug activity taking place in an apartment at 1033 West Atkinson Avenue. The tip came from a community organization, MICAH, which gathers information on possible drug dealings in the area and then passes it along to the police. The group had been contacted by the property manager of the apartment building, Mr. Aggen, who identified four particular apartments as troublesome, including apartment 7.
 On New Year's Eve 1996, Detective Mark Mathy, Officer Glen Bishop, Officer Brian Reilly, and Officer Suzanne Becker, all of the MPD, responded to the complaint using the “knock and talk” technique. Prior to their arrival, however, they had called Aggen to confirm his report to MICAH. Aggen admitted that he had made the report, but said he did not have personal knowledge of the drug activity. Therefore, it was plain that the officers did not have sufficient information to obtain a warrant.
They nevertheless persevered. Dressed in plain clothes the four officers went to the building and gained admission from a cooperative maintenance worker, who said that apartment 7 was a busy place, and that he had observed a lot of people entering and then leaving quickly through the rear exit. So the four officers approached apartment 7, listened and heard voices inside, but could not make out what was being said.
Officers Mathy and Reilly positioned themselves to the right of the door, and Officers Bishop and Becker moved to the left. As they prepared to knock at the door, however, it suddenly opened and a man, later identified as the defendant, Juan Johnson, walked out. Startled, Officer Mathy moved to the center of the doorway, flashed his badge, and stated that he was a police officer. Johnson, a husky man dressed in a goose down jacket, stood opposite Mathy. Officer Reilly stayed behind Mathy which meant that both Mathy's and Johnson's bodies were blocking Reilly's view into the apartment. Of course, the surprise encounter at the doorway set off a scramble inside the apartment. Johnson tried to get past the officers, but Mathy stuck out his hand to stop him. Reilly later stated that while this was going on he saw a woman seated at a table inside the apartment throw a crack pipe to the floor.
Officer Reilly prepared to frisk Johnson, relying on his general knowledge that people involved in the drug trade are often armed. He did not, however, have any suspicion that Johnson was armed. Johnson's hands were away from his body and Reilly could see that he was not holding anything. But as Reilly extended his own hands to get ready for the frisk, Johnson brought his hands up and pushed Reilly's hands outward, mirroring Reilly's gesture. Reilly took this as a sign that Johnson was going to resist a pat down.
Meanwhile the other three officers went into the apartment. Reilly also ordered Johnson back inside, but Johnson refused. As Johnson attempted to leave, Reilly grabbed him, a struggle ensued, and the officers pushed Johnson to the floor. As Johnson went down, Officer Bishop felt a gun in Johnson's pocket which he retrieved. Johnson was handcuffed, and then admitted that he had yet another gun in his other pocket. When asked if he had anything else that he should not have, Johnson turned up a denim bag containing 50 cuts of cocaine and 27 paper folds of cocaine powder. The defendant was arrested and charged with possession of a firearm and possession with intent to distribute controlled substances.
After Officers Mathy and Reilly testified at a suppression hearing, the court stated that it planned to grant the defendant's motion and the United States filed a notice of appeal. The Seventh Circuit Court of Appeals reviewed de novo the district court's conclusion that the police did not have reasonable suspicion to stop and search Johnson.
The district court found that the defendant was not free to leave the apartment after he sought to exit, and that his “detention” was a seizure under the Fourth Amendment. The government did not argue that the police had probable cause to detain Johnson, nor did they assert that from the totality of circumstances the police had reasonable suspicion that Johnson was engaged in criminal activity. Johnson had not done anything that suggested he had committed a crime. Further, the district court held that Johnson's refusal to submit to a pat-down did not in itself justify the seizure. The district court also did not find Officer Reilly's testimony that he saw a woman inside the apartment drop a crack pipe to the floor credible. Similarly, the court found that the officers had no reason to believe that the defendant was carrying a weapon or involved in illegal drug activity when he was leaving the apartment. All that they had to go on was the general belief of a building manager and a maintenance worker that there was drug activity in apartment 7.
The defendant's statements to the police were inadmissible, said the court. Even if they were voluntarily given, the government could not show that they were not tainted by the illegal search and seizure. Further, the government could not demonstrate that the statements were admissible despite the Fourth Amendment violation. Therefore, said the court, the totality of circumstances made it clear that the officers had nothing more than a generalized suspicion of drug activity which could not have supported the issuance of a warrant. “No decision of the Supreme Court . . . has ever held that police may conduct a Terry ‘frisk’ of a house or an apartment--that is, approach it on nothing but a suspicion that something is amiss and conduct a brief warrantless search.” In this instance, said the court, the officers were in essence doing a general search in the hope that something incriminating would turn up. This is the kind of search that the Fourth Amendment prohibits.
A LOOK AT SUPREME COURT PRECEDENT
In Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093 (1990), the Court held that the police may conduct a “protective sweep,” defined as a “cursory visual inspection of those places in which a person might be hiding,” in conjunction with a home arrest supported by a warrant. In the instant case, the police did far more than a cursory visual inspection in detaining the defendant. Further, the protective sweep in Buie was pursuant to an arrest supported by a warrant. There was no warrant to search apartment 7.
In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330 (1997), the Supreme Court held that police officers may order a driver out of a car after a lawful stop, even in the absence of reasonable suspicion that the driver may be armed. The distinguishing fact here is that the removal of the driver from the car permitted in Mimms was pursuant to a lawful stop. The minimal intrusion on the individual is justified by the special risks that accompany an officer approaching the vehicle of a potential traffic offender.
Recently, in Knowles v. Iowa, 119 S.Ct. 484 (1998), the Court refused to authorize automobile searches in situations in which an officer merely issues a traffic citation to the driver. Even when officers have legitimate concerns for their safety, said the Court, they still may not resort to these tactics. While officer safety is a weighty consideration, it cannot, in all circumstances, justify an automobile search or seizure. The car involved in the Knowles decision was entitled to significantly less Fourth Amendment protection than the home in this case.
In Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587 (1981), the Detroit police obtained a warrant to search a residence for illegal drugs. When they arrived at the home they encountered the defendant on the front steps. The police detained Summers and forced him back into the house while they conducted a search. The Court held that this was a seizure within the meaning of the Fourth Amendment. The issue before the Court was whether the seizure was reasonable. Of importance in deciding the issue, was the fact that the police had a warrant to search defendant Summer's home for contraband, thus the seizure was held constitutional. “. . . A warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain occupants of the premises while a proper search is conducted." That situation, again, was very different from what confronted the police in Johnson.
SOME SEARCHES PERMISSIBLE
There are a variety of searches and seizures that the Court has condoned in absence of particularized suspicion, however, those are searches and seizures that are part of a regulatory scheme and the standards are different. For example, in Veronia School District v. Acton, 515 U.S. 646, 115 S.Ct. 2386 (1995), the Court held that random urinalysis drug testing for student athletes at a public high school was permissible. Here, the school was said to stand in loco parentis to the students involved; the intrusion was comparable to other requirements such as mandatory physical exams and vaccinations, and the student athletes had, by volunteering to participate in sports, subjected themselves to the urinalysis regulation.
None of these considerations is apparent in the instant case. When the police have no reasonable suspicion to believe that a person leaving a building--for which they lack the probable cause to permit a search-- is armed and dangerous, any risk of danger to the officer does not justify the intrusion that attends police detention. The police did not have a warrant either for the apartment building as a whole or any unit in particular. Further, none of the exceptions to the warrant rule apply here. The officers were not confronted with a readily moveable automobile, for which the Supreme Court has authorized more relaxed standards. The officers were not in hot pursuit of a suspect, they did not face imminent destruction of evidence, nor were they otherwise confronted with circumstances grave enough to justify a warrantless intrusion.
The stop and search of Johnson was not a limited invasion of his privacy, undertaken as a precautionary measure by the four officers subsequent to events which independently gave rise to probable cause to suspect criminal activity or a clear and present danger. There were no exigent circumstances that required the police to barge into apartment 7. What's more, no one consented to the entry, and nothing suspicious was in plain view.
The court noted that 1033 West Atkinson was a building within a public housing project, which technique was not held to be automatically unconstitutional by the Seventh Circuit Court of Appeals. This case is meant, however, to point out the parameters that the court set in deciding whether such tactics are constitutional. Without reasonable suspicion, law enforcement may not detain a person just because he or she walks out of an apartment even if police think something fishy is going on inside.
COMMENTS FROM THE CONCURRING OPINION
The concurring judge would have affirmed the majority holding but wrote separately in order to make some specific comments. We considered some of his wise words worth passing on from a law enforcement vantage point.
The Johnson case was a close call. The police had no warrant for apartment 7. If they had taken a little more time and caution, rather than a shortcut, the officers would have had the probable cause they needed for a warrant. Using the “knock and talk” technique--trying to sound like friendly visitors--has potential dangers as well as the potential for constitutional violations. Further, the officers knew they were skating on thin ice. That is probably why they sought to bolster their case with Officer Reilly's statement that he saw a woman throw a crack pipe on the floor as the apartment door opened. The district judge, in reenacting the scene, realized that Reilly could not have possibly seen into the apartment, and found his testimony lacking in credibility. She just about said he lied. When the police use shortcuts they run a risk that they will not be able to use the evidence they stumble upon. A little planning and further investigation would have yielded better results.
The dissenting judge obviously saw the knock and talk scene at the door of apartment 7 much in the same way the officers did. The defendant was clearly not the pizza delivery boy who simply tried to walk past them. Furthermore, the sounds from inside the apartment conveyed to the officers a sense of panic and scrambling (probably to conceal or get rid of evidence) by the occupants. The defendant was wearing bulky clothing which made it easy for him to hide weapons, and when Officer Reilly asked whether he was armed, Johnson remained silent. Three officers had to wrestle Johnson to the ground to come up with the weapons.
A brief detention of a person by the police may be justified by any number of circumstances that are not related to any apparent danger posed by the person detained. The dissenter felt that the holding in Michigan v. Summers, supra, was applicable to the instant case. Recall that in Summers the police arrived with a search warrant and encountered the defendant, owner of the house, on the front door step. They told him to go back into the house while they conducted their search. The Court held that the seizure was proper because of the risk that such an individual posed and the likelihood of his interference with the search. (The dissenting judge did not distinguish between the instant case and Summers, as did the majority opinion of the court.) According to the dissent, when defendant Johnson was asked to go back into the apartment, resisted and struggled, the police could frisk the defendant and retrieve the gun they felt in his pocket during the struggle to detain him. If the police were entitled to detain Johnson--and the dissent believes they were-- then Johnson's attempt to escape and the discovery of his gun were all the cause the officers needed. The dissenter, naturally, would have reversed the district court holding.
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