Category Archives: search and seizure

10 Rules for Dealing with Police

Most people are unprepared to handle police encounters. Few people understand their constitutional protections. As a result, when stopped by police, many people unknowingly waive many of their rights.  A group called Flex Your Rights has put together informational videos and they have made the videos available on Youtube.  The video and the information echos and reinforces many of the articles I have authored on this blog about invoking your rights and not making statements to police.

The 10 Rules for Dealing With Police

1.  Always be calm and cool.

2.  You always have the right to remain silent.

3.  You have the right to refuse searches.  “I don’t consent to searches.”

4.  Don’t get tricked.  Police may legally lie to you.

5.  Determine if you are free to go. “Are you detaining me or am I free to go?”

6.  Don’t expose yourself!

7.  Don’t run from police.

8.  Never touch a police officer.

9.  Report Police Misconduct. Be a good witness.

10.  You do not have to let them in your home.  “I can’t let you in without a warrant.”


Expectation Of Privacy Is Not Absolute

Although the word “privacy” is not written in the Constitution, we might all agree that each of us has a right to privacy. The exact size and shape of that right is sometimes not well defined. The most obvious place a person can expect to have privacy is inside their home. The further removed from their home and the more available a place is to the public, the less of an expectation of privacy that a person should have.

While you may enjoy an expectation of privacy in your home, you do not have the same right to privacy in someone else’s home. For example, if the police come to your home to knock and talk you have a right to privacy in your home and you can choose to not speak to them and not allow them inside your home (under normal circumstances). However, if you are visiting your neighbor for dinner and the police come to your neighbor’s home while you are there, your neighbor may allow the police to come inside and search the entire house regardless of your wishes. You would not be able to claim that you had an expectation of privacy in your neighbor’s home.

Not only do you not have much of a right to privacy inside a home that you do not normally reside, you also do not have a right to privacy when you are in public. Also, if something can be seen, smelled, or heard by the public; it is not “private”. Police officers pulling up to your front door may be prohibited from just wandering into your house, but anything that can be sensed by a member of the public from just outside your home is fair game.

In a recent case where the police received an anonymous tip, they were able to discover a meth lab because evidence of the lab was out in the open for the whole world to see. Everything the police needed to begin an investigation was in their plain view:

… An anonymous tip had been received about an address on Richmond Road in Berea, Kentucky. He and Detective Parker responded to the tip. When they pulled up to the residence and into the driveway, Detective White detected a strong chemical
Odor to the north side of the garage, which was attached to the house. He saw a
Plastic bottle that appeared to have been used as an HCl generator in the
Manufacture of methamphetamine. The garage had two doors; one door was
Closed and the other one was open. No one was in the garage when they looked

Due to the dangerous situation created by the presence of the chemicals and equipment used to manufacture methamphetamine, the police carried out an extensive search of the premises looking for persons that might be present. During the search, the police discovered a person inside the home who ultimately was arrested and charged with manufacturing methamphetamines. The person did not own or reside in the house, but was merely related to the owner and previous residents.

Because the items and smells the detectives discovered out in the open indicated that illegal activity was afoot and the presence of the chemicals created an emergency situation, they were able to carry out a search. Furthermore, since the person operating the meth lab did not reside in the house, he could not expect to have privacy in the house and did not suffer any violation of his right to privacy. When the drug manufacturer tried to say that he had an expectation of privacy in the home, the court denied his argument because he did not live in the home or own the home. In this case, it is said that the accused did not have “standing” to argue that he had a right to privacy.

The full case is below.


When Police Knock, Don’t Open The Door And Let Them See Or Smell Your Contraband

More often than ever before, police are showing up at northern Kentucky homes or places of business to “talk”.  These instances of contact with police officers are adversarial to your liberty and you should not engage with police officers without the presence of an attorney.  Police do not come to your home for coffee and small talk.  Remember, never make statements to the police.

According to the Kentucky Supreme Court, “the knock and talk procedure involves law enforcement officers approaching a home for the purpose of obtaining information about a crime that has been committed, a pending investigation, or matters of public welfare.”  In reality, if the police have the evidence to arrest you, they aren’t showing up to your house to knock and talk.  The sole purpose of the knock and talk is to get you to incriminate yourself and/or gain entry into your home so that they can gather enough evidence to arrest you and charge you with a crime.

It is perfectly within the law for a police officer to approach your front door.  Police know this and take advantage of the “free” access to place themselves just outside your home.  Just outside the front door of your home, where smells and sounds may drift unintentionally to the officers nose, ears, and eyesight.   In the case of Quintana v. Commonwealth, 276 S.W.3d 753, 758, 2008 Ky. LEXIS 260, 10 (Ky. 2008) the  Kentucky Supreme Court described the entrance to a person’s residence as being the point of access to the public.

“The main entrance to a home is so widely perceived by the public as the point of access for the public engaged in legitimate business, whether it is by pollsters, persons seeking assistance, postal carriers, delivery persons, or Girl Scouts selling cookies, that it amounts to common knowledge that the public may at least go up to a home’s front door, if the way is not barred. While such members of the public are not guaranteed access to the inside of the house, they may certainly approach the entrance and attempt to speak with the residents.”

It is assumed, by the law, that the public has the right to approach the front entrance of your residence and knock on the door.  You cannot expect your driveway, walkway, and front entrance to be private.   Police officers are afforded the same standing as the public. The officer who approaches the main entrance of your house has a right to be there, just as any member of the public might have. When a resident has no reasonable expectation to privacy if someone approaches his front door for a legitimate purpose, police officers may also so approach.   While on your property, police are free to keep their eyes, nose, and ears open to their surroundings.  The police do not need a search warrant to see, hear, or smell what any member of the general public may see, hear, or smell.

Any and all interactions between you and the police during a “knock and talk” are up to you.  It is a completely consensual situation.  If the police do not have a warrant to enter your house or any other exception or an emergency situation is not afoot, they must obtain your consent to enter or open your door.

Just as you are not required to answer your door or respond to questions when a door to door salesman comes knocking, so it is with a police officer, regardless of whether the failure to answer the door is intentional or the result of your inability to hear the knock.   Just as any member of the public can be told and required to leave your premises, so can an officer.

Seek the assistance of a criminal defense lawyer before you take your liberty in your own hands.