SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

custody during this time period. (United States v. Holzman (9 th
Cir. 1989) 871 F.2 nd 1496, 1507-1508.)
Detention of the Residents Outside: Also, with probable cause justifying
the obtaining of a search warrant, the residents may be lawfully detained
outside pending the arrival of the search warrant. (Illinois v. McArthur,
supra.
Knock and Talk: Where the officer does not have probable cause prior to the
contact (thus, he is not able to obtain a search warrant), there is no constitutional
impediment to conducting what is known as a “knock and talk;” making contact
with the occupants of a residence for the purpose of asking for a consent to enter.
(United States v. Cormier (9 th Cir. 2000) 220 F.3 rd 1103, 1108-1109.)
“Absent express orders from the person in possession against any possible
trespass, there is no rule of private or public conduct which makes it
illegal per se, or a condemned invasion of the person’s right of privacy, for
anyone openly and peaceably, at high noon, to walk up the steps and
knock on the front door of any man’s ‘castle’ with the honest intent of
asking questions of the occupant thereof—whether the questioner be a
pollster, a salesman, or an officer of the law.” (Davis v. United States (9 th
Cir. 1964) 327 F.3 rd 301. 303.)
Knocking at the defendant’s motel room door and asking (as opposed to
demanding) the occupants to open the door to speak with them is, when
the defendant comes outside, no more than a lawful consensual encounter
when nothing is said or done which would have indicated to defendant that
he was not free to leave or return to his room. (United States v. Crapser
(9 th Cir. 2007) 472 F.3 rd 1141, 1145-1147.)
State authority similarly upholds the practice. (People v. Colt (2004) 118,
Cal.App.4 th 1404, 1410-1411.)
See also People v. Michael (1955) 45 Cal.2 nd 751, at page 754, where the
California Supreme Court noted that: “It is not unreasonable for officers to
seek interviews with suspects or witnesses or to call upon them at their
homes for such purposes. Such inquiries, although courteously made and
not accompanied with any assertion of a right to enter or search or secure
answers, would permit the criminal to defeat his prosecution by
voluntarily revealing all of the evidence against him and then contending
that he acted only in response to an implied assertion of unlawful
authority.”
The key to conducting a lawful “knock and talk,” when there is no
articulable suspicion that can be used to justify an “investigative
detention,” is whether “a reasonable person would feel free ‘to disregard
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© 2012 Robert C. Phillips. All rights reserved