KNOCK AND TALK This is police language used to describe the initial encounter between Law Enforcement and a suspected Drug Trafficker when street-level narcotic Detectives respond to a suspect home following what is often an anonymous tip in the form of a phone call, often within hours of receipt of the call. Although corresponding police reports and narratives are often flush with documented police surveillance and other attempts at corroborating the faceless and often baseless allegations prior to the initial knock, a closer look often reveals a separate reality. From all appearances, it is apparent that in Broward County Law Enforcement circles, all it takes is an anonymous phone call, and within what may as well be minutes, the local welcome to the neighborhood committee is en route, sometimes via caravan, depending of course on the size and nature of the narcotic-related criminal activity alleged. Armed with some serious metal attached at the hip and the priceless intelligence gathered from the anonymous caller, a small army of Detectives arrive in unmarked vehicles, and despite their huge stature and black muscle tee- shirts with large white lettering, attempt to appear inconspicuous. Beyond their 9-millimeters, these agents are also armed with consent to search forms. The language in these forms begins with an affirmation that before they are executed by the homeowner (aka suspected Trafficker), that the suspect has been advised of the Constitutional right to refuse the search. The consent form further allows a search beyond that of the suspects home. The scope of the consent extends to the suspect vehicle, office and summer home in the Hamptons! The responding Detectives believe, and to a large degree they are correct, that once the form is signed, regardless of the means employed to induce the act, that any subsequent legal challenge is either non-existent or futile. But is the case closed? That depends. One particular Broward Circuit Judge Newman reasoned, while offering his explanation for denying defense counsels Motion to Suppress, that because there was an executed consent form, the warrant-less search of the private home was lawful. Defense counsel respectfully inquired as to whether the Court believed it relevant that the signer testified she was threatened with the act of her 8-year old daughter being referred to DCF custody if she refused to execute the consent form, and allow the search. In its infinite wisdom, the Court reasoned that the search was lawful, again noting the apparently bullet-proof consent form. Notwithstanding this particular ruling, its not quite that simple. The Constitution requires that the waiver of an individuals 4th Amendment Rights be knowing, intelligent and VOLUNTARY. This minor technicality is often overlooked by lawyers and judges alike. All too often, virtually every executed consent to search comes with a caveat. The most prevalent? If you dont sign the form and let us in to search your house, we are going to get a warrant anyway and TEAR THE PLACE APART!! Noting the big picture, I suspect there are circumstances where a target is fully advised of the right to refuse and, with these rights in mind, knowingly, intelligently and voluntarily waive their 4th Amendment Rights away and allow a search of their home (I dont personally know of any such circumstances, but shit does happen). Conversely, in a recent Broward Felony Motion to Suppress hearing, where the State introduced evidence of the usually invincible executed consent form following the warrant- less search and seizure of narcotics in the Defendants residence, while granting the motion, the Court considered additional evidence, in contrast to the previous example. In its analysis, the Honorable Sandra Perlman alluded to testimony where the defendant, upon responding to the knock, stepped outside the threshold of his home, closing the door behind him while engaging the 4 rather large, fully armed responding detectives at the front door. Once outside the Defendant testified that Detectives advised him of their suspicions and with all 4 chiming in, was repeatedly asked to consent to a search of his residence. The Defendant responded by advising Detectives they would need a warrant before entering his private residence. Remaining undeterred, Detectives were alleged to have then handcuffed the Defendant. The Defendant further testified at this point, while restrained by handcuffs on the front lawn of his residence, that the ultimate and final request was delivered................Open the freakin door, get the hell out of the way and let us search..............or.........WE WILL GET A WARRANT ANYWAY AND TEAR THE PLACE APART! The lead Detective admitted on cross-examination that from his initial contact he was intent on getting into the residence despite the lack of a warrant. He further testified that, but for the anonymous phone call, and an alleged controlled buy from the residence, there was nothing else of evidentiary value learned through the investigation. When pressed on the particulars of the alleged controlled buy, several issues were raised on cross. When did this buy go down, what was the quantity of narcotics and why wasnt the Defendant charged with the delivery? Not recalling any of the particulars of the buy, the State was nevertheless stuck with this most mysterious delivery. In all fairness to the prosecution, it is not uncommon for a controlled buy to go uncharged in an effort to maintain the confidentiality of the C.I. who may have arranged the transaction. On the other hand, another issue arises that appears to have been the final nail in the coffin of the States case. If in fact there was a controlled buy as testified to, under oath by a certified and experienced street-level narcotics detective, then what explanation would Law Enforcement offer for the abject failure to have sworn out the necessary affidavit and present it to a magistrate in the process necessary for applying for a search warrant? The Detective offered the following explanation.................We didnt apply for a warrant because we didnt think we were dealing with a significant amount of narcotics. It is this type of lame reasoning that should be the cause of great concern as it relates to these warrant-less consent searches, and the apparent policies and procedures employed by agencies like BSO and Fort Lauderdale in the event of an uncorroborated tip or similar circumstance. Last time I checked, the 4th Amendment did not concern itself with such issues nor should it be a factor in Law Enforcements determination as to whether to first apply for a warrant when the evidence warrants it. Simply because the State provides an executed consent in the event of a warrant-less home search, which is an all too frequent occurrence in Broward County, it should rarely provide a legitimate basis to leave that search unchallenged. Given the high level of potential police abuse and prospects of under-handed tactics employed in an effort to obtain the signature necessary for a consent form, there is no rational basis or acceptable explanation for Law Enforcements failure to either further investigate and corroborate the initial tip and/or secure a warrant when feasible. It is the responsibility of Browards Criminal Defense Bar to consider an executed consent form highly suspect. Unless we act and collectively and routinely call Law Enforcement out on the tactics employed to obtain the form they rely much too heavily on and get away with much too often..............we are just as responsible for overlooking and tolerating one of the most violent, routine and unforgivable abuses of our precious and most exploited Constitutional Rights. Help stop the bleeding!! After all, what intelligent individual would knowingly and voluntarily submit to a consent search of their private residence, knowing they have the absolute right to refuse? Gary Ostrow
Posted on: Wed, 07 Jan 2015 17:58:58 +0000
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