It Doesn't Matter What They Intended: The Need for Objective Permissibility Review of Police-Created Exigencies in "Knock and Talk" Investigations

Article excerpt

"Because good proactive police work often creates exigencies, the legal issue is not simply whether the police created the exigency, but whether the police impermissibly created the exigency." (1)

I. INTRODUCTION

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures conducted by law enforcement personnel. (2) This right is protected in part by the requirement that law enforcement officers obtain search warrants prior to searching for and seizing evidence. (3) Searches conducted without a warrant are generally unreasonable. (4) This warrant requirement is not absolute, however, as the Supreme Court recognizes exceptions when certain exigent circumstances exist. (5) Exigent circumstances exist when there is no time to obtain a warrant and the police are compelled to act quickly. (6) Under such circumstances, searches may be reasonable despite the absence of a warrant. (7)

Though the Supreme Court has upheld warrantless searches where the exigency was related to police action, in each instance, the police conduct involved a response to an exigency, not proactive conduct that created one. (8) When police actions create exigent circumstances, as opposed to merely encountering them during an investigation, courts must determine whether the police action permissibly or impermissibly created the exigency. (9) While this permissibility inquiry may appear straightforward, courts differ on the standard to apply when weighing the propriety of police actions. (10) Circuit courts seem to agree that the basis for any review is the reasonableness of police action but disagree over the role the police officers' subjective intent should play. (11)

During these inquiries, courts focus on reasonableness because of the fear police will abuse their power. (12) One police tactic that courts have increasingly subjected to reasonableness review is the procedure known as "knock and talk." (13) The "knock and talk" procedure is a common and seemingly innocuous procedure that police use proactively, making the procedure vulnerable to potential abuse. (14) The "knock and talk" appears innocuous because courts do not generally consider its use a search or seizure, but rather an investigative tactic. (15) The potential for abuse arises when police attempt to gain access for consensual searches and instead provoke exigencies that normally validate a warrantless search. (16)

This Note explains the police procedure known as "knock and talk" and examines the validity of the procedure as an investigative tactic. (17) Part II.B discusses the use of the "knock and talk," focusing on the reasonableness of the procedure when it creates exigent circumstances. (18) Part II.B also provides examples of bad-faith uses of the "knock and talk" procedure. (19) Next, Part II.C examines police created exigencies and the different standards courts apply in determining whether police permissibly or impermissibly created the exigency. (20) This examination includes a discussion of both the objective reasonableness standard and the subjective bad-faith standard that courts apply. (21) Finally, Part III explains why a court's reasonableness and permissibility analyses should focus on objective criteria, rather than subjective intent, in determining Fourth Amendment compliance. (22) The analysis focuses on the objective factors relevant to "knock and talk" in judging the reasonableness of police actions. (23)

II. HISTORY

A. The "Knock and Talk" Procedure

The "knock and talk" involves a police officer knocking on the door of a residence, identifying himself, asking to talk to the occupant, and ultimately seeking information or consent to search the residence. (24) When done properly, a "knock and talk" does not constitute a search or seizure and therefore does not trigger the Fourth Amendment's constitutional protections. …