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University of Baltimore Forum Volume 32 Article 7 Number 2 Spring 2002

2002 Recent Developments: Scott .v State: The oliceP "Knock and Talk" Procedure Is Valid When the Consent to Search Is Voluntary Havalah Neboschick

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Recommended Citation Neboschick, Havalah (2002) "Recent Developments: Scott .v State: The oP lice "Knock and Talk" Procedure Is Valid When the Consent to Search Is Voluntary," University of Baltimore Law Forum: Vol. 32 : No. 2 , Article 7. Available at: http://scholarworks.law.ubalt.edu/lf/vol32/iss2/7

This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Recent Developments Scott v. State: The "Knock and Talk" Procedure Is Valid When the Consent to Search Is Voluntary

By Havalah Neboschick

In a case of first impression, the door, the officers infonned him ofthe and Article 26 of the ofAppeals ofMaryland upheld problems plaguing the area and asked Maryland Declaration of Rights, the validity of a motel room search if they could enter the room in order which are read in pari materia, when pursuantto a police procedure termed to talk to him. Scott invited the carried out in absence ofreasonable, "knock and talk" during which police officers into his room. Detective articulable suspicion or probable officers randomly knock on motel Schwanke ("Schwanke") noticed the cause.ld. at 124, 782 A.2d at 864. room doors in hopes that the odor of burning marijuana upon The second issue was whether Scott occupants will allow the police to enter entering the room; however, he first voluntarily consented to the search of and consent to a search. Scott v. questioned Scott as to whether Scott his motel room. State, 366 Md. 123, 782 A.2d 862 had any knowledge ofillegal activity The court began its (2001). In so holding, the court in the area and whether Scott constitutional analysis by examining detellnined that the knock and talk possessed any illegal narcotics. whether the procedure constitutes a procedure does not violate the Fourth Schwanke requested pennission to seizure. "A 'seizure' occurs when a Amendmentto the U.S. Constitution search the room and Scott voluntarily person is restrained by the police, and when an occupant is not unlawfully consented. The police recovered that must be judged from the seized, yet voluntarily consents to a marijuana, crack cocaine, cocaine, interaction between the individual and search. Id. and drug paraphernalia, indicating an the police, not by the level of On May 19, 2000, Aaron Scott intent to distribute. suspicion, ifany, in the officer's mind." ("Scott") rented a room at the Regal At the pre- conference, Id. at 132, 782 A.2d at 869. Inn Motel in Baltimore County. Scott sought to suppress Moreover, "a seizure does not occur Shortly after 11 :30 p.m., a Baltimore obtained from the knock and talk, simply because a police officer County detective, accompanied by arguing that the search and seizure approaches an individual and asks a fi ve or six other po lice officers, visited was unlawful and there was no valid few questions." Scott, 366 Md. at the motel without a warrant. Although consent. The Circuit Court for 132, 782 A.2d at 869(quoting Fla. the officers did not have reasonable, Baltimore County, finding the v. Bostick, 501 U.S. 429, 434 articulable suspicion or probable procedure did not violate the U.S. (1991)). cause to believe illegal activity was Constitution, refused to suppress examine several occurring at the motel, the police had evidence based on Scott's voluntary supplementary factors, including previously received complaints consent to the search. Scott was where and when a knock and talk concerning prostitution, drug use, and convicted ofpossession with intent to investigation occurs, to detennine the drug distribution in the area. distribute cocaine. Scott, a repeat totality of the circumstances. Id. at Pursuant to the knock and talk offender, was sentenced to a prison 137, 782 A.2d at 871-72. It is well procedure, plain-clothed police tern1 often years without parole. established that, "absent a clear officers with their police badges Two issues were before the expression by the owner to the displayed and holstered handguns court of appeals. First, was whether contrary, police officers, in the course visible, knocked on Scott's motel the knock and talk procedure violates of official business, are pennitted to room door. After Scott opened the the Fourth Amendment to the U.S. approach one's dwelling and seek

32.2 U. Bait L.F. 20 Recent Developments pennission to question an occupant." procedure does not amount to a that Scott consented to the search of Id. at 130, 782A.2d at 867-868. The Fourth Amendment seizure, courts his motel room and that his consent legitimate official business requirement cautiously examine consents obtained was voluntary. Id. at 143, 782A.2d is a low threshold and does not require by police to enter and search a room at 875. a particular level of incriminating and may invalidate searches when In recent years, the knock and infoffimtion. Id. at 131, 782 A.2d at consent is not voluntary. Id. at 139- talk procedure has become 868. The court detennined that 140, 782 A.2dat 873. Whetherthe increasingly popular with law Schwanke and his fellow police consent to search was voluntarily enforcement agencies across the officers, while monitoring prospective obtained is a question of fact to be country, creating several constitutional criminal activity as well as seeking detennined from the totality of the issues for the and the inforn1ation regarding illegal activity, circumstances. Id. at 141, 782 A.2d to explore. Overall, courts were on official police business atthe at 875 (citing Schneckloth v. have upheld the procedure by Regal Motel. Id. at 133, 782 A.2d at Bustamonte, 412 U.S. 218, 227 applying well-established to 869. (1973)). Relevant factors include "the a new technique. Many courts have given great number of officers present, the age, Nonetheless, the implementation weight to the time ofday a knock and maturity, intelligence, and experience ofthe procedure raises public policy talk occurs. Id. While some courts ofthe consenting party, the officers' concerns. While a majority of states, have found late night encounters at a conduct," and the time, location, and including Maryland, do not require person's residence troubling, none duration ofthe encounter. Id. at 142, police officers to advise a person in have found a seizure based on this 782 A.2d at 875. advance ofthe right to refuse or limit factor alone. Scott, 366 Md. at 133, In the case at hand, the court consent, some state have 782 A.2d at 869. Here, the knock concluded Scott voluntarily con­ enacted requiring notice in and talk took place at 11 :30 p.m. at a sented to the search ofhis motel room. order to vindicate individual rights. motel room while Scott was still Scott, 366 Md. at 143, 782 A.2d at More often than not, suspects with awake. Even though late night 875. Specifically, the police officers contraband, even those who are encounters with police in individual's were not overbearing, the encounter considered experienced criminals, homes should be limited as a matter lasted only two to three minutes from consent to searches out of fear that ofpublic policy, it is more likely that a knock to the completion ofthe search, refusal would give police probable motel room will not be occupied until and Scott was not inexperienced. Id. cause to then obtain a the evening. Id. at 139, 782A.2d at Furthennore, Maryland law does not anyway. Perhaps requiring police 872. require police to advise a person in officers to provide limited information Based on the totality of the advance that he has the right to refuse on refusal may alleviate some of the circumstances, the court detennined or limit consent. Id. at 142, 782 A.2d confusion occupants have regarding that there was no Fourth Amendment at 874-75. "[W]hile the subject's searches. It is not clear whether such seizure in this case. The court stated, knowledge of a right to refuse is a notice lessens the seemingly coercive "[w]e are not prepared, alone among factor to be taken into account, the nature ofthe procedure, yet the right courts and in contravention of the prosecution is not required to to refuse remains a factor used to principles announced in Bostick, to demonstrate such knowledge as a determine whether consent is fmd every late-night 'knock and talk' prerequisite to establishing a voluntary voluntary regardless of a notice encounter a Fourth Amendment consent." Id. at 141-42, 782 A.2d requirement. seizure, without regard to all other at 874 (quoting Schneckloth v. Various courts have suggested relevant circumstances." Id. at 138, Bustamonte, 412 U.S. at 248-49). that non-emergency knock and talk 782 A.2d at 872-73. Thus, the trial court did not commit encounters, especially late-night While the knock and talk any error oflaw or fact in deciding intrusions into people's homes, should

32.2 U. BaIt. L.F. 21 Recent Developments be tightly controlled or limited as a matter ofpublic policy. While knock UNIVERSITY OF BALTIMORE LA W ALUMNI RESOURCE and talk encounters occur at homes DIRECTORY as well as hotels and motels, hotels and motels are typically not occupied Please check any area of interest and complete the form below. until the evening. On the other hand, Send completed form to: University of Baltimore Alumni Services per se rules for knock and talk Attn: Law Resources Directory encounters are ineffective and 1304 St. Paul Street contrary to established case law that Baltimore, Maryland 21202 demands a case-by-case analysis fax: (410) 837-6175 taking into account the totality ofthe e-mail: [email protected] circumstances. As more knock and talk encounters are challenged, state o Mentor first year law students; legislatures are beginning to weigh competing policy considerations in o Speak to a class of students about your practice speciality; order to protect constitutional rights a trial and/or appellate advocacy program; in addition to combat crime. o o Participate in the EXPLOR Program;

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