Wednesday, October 17, 2007
Page 3
Court of Appeal Upholds Seizure Based on ‘Knock-and-Talk’ Tactic
By KENNETH OFGANG, Staff Writer
Police officers who have obtained consent to search a residence need not advise occupants that they have a right not to speak to the officers, the Fourth District Court of Appeal has ruled.
Div. One yesterday ordered publication of its Oct. 4 opinion upholding Juan Rivera’s conviction and two-year prison term for possession of a concealed “dirk or dagger.” The case was before the panel for a second time, its previous reversal having been overturned by the state Supreme Court.
Rivera was arrested in January 2004 by an officer who went to an Oceanside residence in response to an anonymous phone call saying that the defendant, who had an outstanding arrest warrant, was there. The officer testified that he obtained the owner’s consent to search the house, found the defendant sitting in a doorless shed behind it, and arrested him after he identified himself and revealed that he had a knife under his clothing.
In its original, unpublished opinion, the court ruled 2-1 that the search was unlawful because the informant’s tip was uncorroborated. The Supreme Court, however, ruled unanimously this past June that no corroboration is required if the ensuing entry is consensual, and sent the case back to the Court of Appeal to resolve “whether, after the officers’ legitimate entry, their detention and search of defendant was proper under the Fourth Amendment.”
Answering that inquiry in the affirmative, Presiding Justice Judith McConnell said the police, once legally in the house, could go into the backyard and approach Rivera and talk to him. She rejected the defense contention that the “knock-and-talk” technique is so inherently intrusive that police must tell individuals within a residence that they have the right not to converse.
She distinguished a Washington Supreme Court decision condemning the use of “knock-and-talk” to gain entry for the purpose of searching for contraband or other evidence of a crime. McConnell noted that the ruling was based on the Washington Constitution, not the Fourth Amendment; that the police in Rivera’s case were not looking for evidence of a crime, only to determine whether Rivera was at the residence, and if so, whether he was the subject of an arrest warrant; and that the case did not hold that all contacts between the police and individuals inside a home are non-consensual.
“For example, a police officer investigating a neighborhood crime could be invited inside by a resident and while talking with that resident about what he or she witnessed, engage in consensual conversations with roommates or family members about whether they saw anything,” the presiding justice wrote. “The fact a police officer asks questions inside a residence does not per se transform a police interaction into a coercive situation and a detention.”
She added that in Rivera’s case, “our Supreme Court implicitly rejected the concept the police must inform a resident of a right to refuse consent or that a heightened scrutiny should be utilized.”
McConnell went on to say that since the shed had no doors, the police were entitled to look inside and to talk to Rivera, and that since they had corroborated the part of the anonymous tip that said he was at the residence, it was reasonable to detain him long enough to determine whether he was actually wanted on an arrest warrant.
As part of the detention, she added, the police had the right to ask Rivera to ask if he had a weapon, and once he said he did, they were entitled to remove it for their own protection.
The case is People v. Rivera, 07 S.O.S. 6219.
Copyright 2007, Metropolitan News Company