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Judges dissent on search after 'knock and talk'

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An Indiana Court of Appeals judge dissented from his colleagues' view that a police "knock and talk" investigation didn't violate a man's rights under the Indiana Constitution, fearing the circumstances of the case could lead to a general distrust of law enforcement.

In Kenneth Brown v. State of Indiana, No. 11A04-0904-CR-213, Kenneth Brown appealed his various drug convictions by arguing that the police's knock and talk investigation at his home violated his Fourth Amendment and Article 1, Section 11 rights under the federal and state constitutions.

The police had just arrested someone for methamphetamine possession and received a tip the person got the drugs from Brown. Four police officers in three cars decided to drive to Brown's house at 2:30 a.m. to talk to Brown. They didn't have probable cause for a search warrant or to arrest Brown.

The four officers knocked on the door; when Brown answered, they explained the earlier arrest and asked to search Brown's home. Brown said only one officer could come in; that officer found drugs.

The Court of Appeals reviewed the admissibility of the evidence under the fundamental error doctrine, and Judges Margret Robb and Carr Darden ruled the knock and talk procedure didn't violate Brown's rights under the federal or state constitutions. Neither probable cause nor reasonable suspicion is constitutionally prerequisite for a knock and talk investigation, and suspicion based on an anonymous tip is proper basis for officers to make inquiries of occupants, wrote Judge Robb. In addition, there's no evidence that the officers attempted to bully or intimidate Brown or did anything to show he wasn't free to close the door or refuse entry.

The majority also upheld the submission of the evidence and Brown's convictions.

Judge Paul Mathias dissented regarding only on the grounds that the investigation and search violated Brown's rights under the Indiana constitution. The judge noted the police said they were taking a "crap shot" to get into Brown's house because they didn't have anything to go on. That doesn't amount to a reasonable degree of concern, suspicion, or knowledge that criminal activity has occurred under Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005).

The degree of intrusion in this case was very high, with four officers and three police cars showing up at the home in the middle of the night. Judge Mathias didn't believe a reasonable person, roused from sleep and faced with these intimidating circumstances, would feel free to refuse the officers' request to search.

"When we expect a drowsy citizen to stand up to four armed officers who knock at the front door in the middle of the night without a search warrant, I believe we begin to establish a culture of general distrust of law enforcement and its motives that is corrosive to civil society," he wrote. "If 'law enforcement needs' prevail under circumstances like these, the greater right to privacy Hoosiers enjoy under Article 1, Section 11 of the Indiana Constitution ... is ephemeral, if it exists at all."

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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