“Knock and Talk” as a Consensual Encounter
Florida courts view “knock and talks” as a purely “consensual” type of encounter, “which officers may initiate without any objective level of suspicion.” Triana, 979 So. 2d at 1043. See also United States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006) (“[A] ‘knock and talk’ is a consensual encounter and therefore does not contravene the Fourth Amendment, even absent reasonable suspicion.”); United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000). Since there is no coercion in merely knocking on the door of a person’s house or business and asking questions, courts do not even recognize knock and talks as a type of “seizure” implicating the Fourth Amendment. Triana, 979 So. 2d at 1043.
Thus, there is no requirement of a warrant or any level of reasonable suspicion or probable cause for conducting a knock and talk. Id. Even if acting on an anonymous, uncorroborated tip, police may knock on the door of a residence, speak with the occupant, and request permission to enter and search. Murphy v. State, 898 So. 2d 1031 (Fla. 5th DCA 2005). As stated by one Florida Federal Court, “[o]fficers are allowed to knock on a residence’s door or otherwise approach the residence seeking to speak to the inhabitants just a[s] any private citizen may.” United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006) (quoting Estate of Smith v. Marasco, 318 F.3d 497, 519 (3d Cir. 2003)).
Unlawful Police Conduct
Not all “knock and talks” will be deemed “consensual” in nature so as to avoid Fourth Amendment protections. If the police escalate their presence into an encounter that has coercive characteristics, then the encounter will be deemed a “seizure” and the Fourth Amendment will apply. Whether an encounter with police is consensual or a type of seizure depends on the “totality of the circumstances” and whether a reasonable person would, under the facts and circumstances of the case, feel free to leave. United States v. Mendenhall, 446 U.S. 544 (1980); Taylor v. State, 855 So. 2d 1 (Fla. 2003). If the police are deemed to have “seized” a defendant, this will require them to have reasonable suspicion or probable cause, depending on whether their conduct amounted to an investigatory stop or arrest. Triana, 979 So. 2d at 1042.
The presence of police officers alone, absent any indication of coercive words or acts, misrepresentation, deception, or trickery is insufficient to raise an inference that a seizure, or submission to police authority, has taken place. State v. Swank, 399 So. 2d 510, 512 (Fla. 4th DCA 1981) (citing United States v. Griffin, 530 F.2d 739 (7th Cir. 1976). However, drawn weapons, coercive actions and demands, raised voices, and repeated insistence that the occupant speak to police have all been found to result in non-consensual encounters. See Miller v. State, 865 So. 2d 584 (Fla. 5th DCA 2004) (holding that an officer’s insistence that he needed to speak with defendant would have led a reasonable person to believe that the officer had a bona fide authority to detain her); United States v. Edmondson, 791 F.2d 1512, 1514 (11th Cir. 1986) (involving officers who surrounded the front of the defendant’s apartment, with weapons drawn, and yelled, “FBI. Open the door”); Morgan, 743 F.2d at 1161 (involving ten officers who surrounded the house, blocked the suspect’s car, “flooded the house with spotlights and summoned Morgan from his mother’s home with the blaring call of a bullhorn”).
There are numerous other scenarios where a “knock and talk” can be invalidated on Fourth Amendment grounds. An actual entry into the home without the requisite consent of the occupants and without a warrant will transform the encounter into an unlawful search (absent exigent circumstances or other warrant exceptions). A knock and talk may be also invalidated as a so-called “constructive entry” of the home. A “constructive entry” occurs when the police, while not entering the house, deploy overbearing tactics that essentially force the individual out of the home. Triana, 979 So. 2d at 1044. Constructive entries have been found when a suspect emerged from a house “in response to coercive police conduct.” United States v. Morgan, 743 F.2d 1158, 1166 (6th Cir. 1984).