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Thursday, August 30, 2007

'Knock and talk' doesn't fly in 7th Circuit

Here's a situation we'll probably see on Law & Order soon.

A federal appeals court ruled this week that cocaine seized during a Milwaukee drug bust is inadmissible due to an illegal police search.

The case, USA v. Ellis, went down like this:

Police and DEA agents, following an investigation of drug activity, visited a Milwaukee home in 2005 for a "knock and talk" — a tactic where officers try to talk their way into a house without a warrant.

While chatting up the occupants — behind a closed door — officers said they heard activity inside. Believing that someone was trying to destroy illegal drugs, police busted down the door and later found 2.5 kilograms of cocaine.

The search was upheld in Wisconsin District Court, but the 7th U.S. Circuit Court of Appeals wasn’t impressed with the probable cause. "It is reasonable that any person, not just people trying to destroy drugs, would be moving throughout the home to see what was going on the front, side and back of the home," Judge Michael S. Kanne wrote in the Aug. 27 opinion.

The officers later testified that they only heard movement inside the house. There was no flushing of toilets. No tossing bags out the window. No jumping down the fire escape. No other evidence, other than footsteps, to suggest that contraband was being destroyed.

Thus, no suitable reason for storming the house, Kanne concluded.

"The problem in this case is that the officers and agents lacked a warrant when they approached the home and utilized tactics that, if allowed to go unchecked, would eliminate the Fourth Amendment warrant requirement for a home with any connection to drugs," he wrote.

Assistant U.S. Attorney John J. Manning told the Journal Sentinel that his office "is still studying the court's opinion."

1 comment:

Matt Ehling said...

It is good to see a federal court hold firm on the warrant requirement, after years of case law that has systematically broadened the exigent circumstances doctrine. While this doctrine certainly has its place in American policing, the demands of the "War on Drugs" have pushed it closer and closer to the ragged edges of the Fourth Amendment. Decoupling the warrant requirement from overall "reasonableness" in police searches has been an ongoing theme of the Drug War - one which needs to be carefully scrutinized, as it has been here.