What is a “Knock and Talk” and is it Legal?

A “knock and talk” is a way for police to get around the requirements of the Fourth Amendment and, using the many exceptions to the Fourth Amendment, search a person’s home without first getting a search warrant.

In SC, however, we have an explicit right to privacy in our state Constitution that requires an articulable, reasonable suspicion before police can approach a person’s home to search for evidence of a crime.

Below, we will look at SC law regarding “knock and talks” including:

  • What a knock and talk is,
  • The requirements for a knock and talk under SC’s Constitution, and
  • Examples of cases where SC appellate courts have reversed or upheld convictions based on knock and talks.

What is a “Knock and Talk?”

The federal courts have held that it is not a violation of the Fourth Amendment for a police officer – with no warrant – to knock on your door and attempt to engage you in conversation (see Florida v. Jardines, 569 U.S. 1 (2013)).

In many cases, this has provided a way for the police to get around the requirements of the Fourth Amendment and search peoples’ homes without first getting a warrant.

How?

  • Approach, knock on the door,
  • Ask the resident questions and engage them in a “friendly interrogation” (they are not in custody so there is no need for Miranda rights to be read),
  • Ask the resident for permission to have a look around (consent is an exception to the Fourth Amendment),
  • If you hear something suspicious that may be an exigent circumstance, enter the home and look around (exigent circumstances exception to the Fourth Amendment),
  • If you see something illegal in plain view over the person’s shoulder, enter the home and seize it (plain view exception to the Fourth Amendment),
  • Do a protective sweep of the home to ensure no bad guys are hiding with guns (protective sweep exception to the Fourth Amendment), and then
  • Get a search warrant to search for the evidence that you have already located without a search warrant…

A Knock and Talk Requires Reasonable Suspicion in SC

SC law provides additional protections that go further than the Fourth Amendment’s protections, however, based on the SC Constitution’s right to privacy that is not found in the US Constitution.

In SC, police cannot simply walk up to your home and knock on the door if they are looking for evidence of a crime unless they have an articulable, reasonable suspicion that evidence of a crime will be found inside.

What is a reasonable suspicion?

SC case law defines a reasonable suspicion as “a particularized and objective basis that would lead one to suspect another of criminal activity,” taking into consideration the “totality of the circumstances.”

A reasonable suspicion is more than a hunch or a “mere suspicion,” but it is less than probable cause. One key part of the definition is that it must be particularized – the officer must be able to state specific facts that supported the reasonable suspicion that evidence of a crime would be found.

SC Constitutional Right to Privacy

SC’s requirement that police have a reasonable suspicion before approaching a person’s residence for a knock and talk is based on SC’s right to privacy found in Article I, Section 10 of the SC Constitution:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained.

Because the US Constitution does not contain an explicit right to privacy, SC appellate courts have held that the SC Constitution provides additional protections beyond that provided by the Fourth Amendment and US Supreme Court opinions.

As the Court says in State v. Ferguson:

“[T]he privacy interests in one’s home are the most sacrosanct, [and] there must be some threshold evidentiary basis for law enforcement to approach a private residence.” Id. at 172, 776 S.E.2d at 69 (emphasis added). “[Officers] must have reasonable suspicion of illegal activity at a targeted residence prior to approaching the residence and knocking on the door.” Id. at 172, 776 S.E.2d at 70 (emphasis added). “In establishing this threshold requirement, our supreme court reaffirmed that the South Carolina Constitution’s privacy protection against unreasonable searches and seizures ‘favors an interpretation offering a higher level of privacy protection than the Fourth Amendment.'” State v. Boston, 433 S.C. 177, 183, 857 S.E.2d 27, 30 (Ct. App. 2021) (quoting Counts, 413 S.C. at 168, 776 S.E.2d at 68), cert. granted, S.C. Sup. Ct. Order Dated Jan. 13, 2022.

Examples of Knock and Talks in SC Appellate Opinions

Two recent examples of knock and talks in SC appellate opinions illustrate when a knock and talk is supported by reasonable suspicion and when a knock and talk is unconstitutional because there was no reasonable, articulable suspicion.

State v. Boston – Knock and Talk Supported by Reasonable Suspicion

In State v. Boston, the SC Court of Appeals found that a knock and talk that resulted in a seizure of drugs was supported by reasonable suspicion when:

  • The officers testified that the apartment complex was a “hot spot of narcotics activity,”
  • The manager of the apartment complex reported that he had been threatened and he asked for help with controlling the drug problem, and
  • The officer observed two men enter a woman’s apartment, he knew the woman lived alone, had mental limitations, and used drugs, and the officer knew and had previous dealings with the two men.

State v. Ferguson – Knock and Talk was an Invasion of Privacy

In State v. Ferguson, decided on June 1, 2022, by the SC Court of Appeals, the Court held that there was no reasonable suspicion when officers received a tip that Ferguson was manufacturing meth in his apartment, but:

  • The officers did not identify the tipster,
  • The officer did not receive or ask for any information that would have corroborated the tipster’s claim that Ferguson was manufacturing meth, and
  • The officers did not conduct surveillance on the apartment, check Ferguson’s criminal history, check the National Precursor Log Exchange, or conduct any investigation that would have corroborated the tipster’s information.

It’s important to note that the officers did everything they thought they needed to do to get around the Fourth Amendment with a knock and talk – they knocked, they got permission to walk through the apartment, they saw paraphernalia in plain view, they conducted a “Terry frisk” of Ferguson and found drugs, and they then got a search warrant to search for the things they had already found without a warrant…

In Ferguson’s case, though, the police had no information apart from the tipster’s claim that Ferguson was even in the apartment, much less manufacturing methamphetamine. They had never encountered Ferguson before, never made any drug arrests at the apartment complex, and there was no information to support the reliability of the tipster’s claims.

Without an articulable, reasonable suspicion that there was criminal activity, the knock and talk was unconstitutional.

Criminal Defense Lawyers in Charleston, SC

Charleston, SC criminal defense attorney Grant B. Smaldone represents people charged with crimes in SC state and federal courts.

If you have been charged with a crime or believe that you are under investigation in the Charleston, Georgetown, or Myrtle Beach areas of SC, call now at (843) 808-2100 or send an email to schedule a free consultation.


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