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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. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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