MICHAEL MINARDI – REGULATE FLORIDA

The home is considered by the courts as a place of sanctity, a place where without probable cause police shall not cross the threshold.  Unfortunately, officers use different tricks to get into your house.  They are obviously not allowed to threaten you in any way under any circumstances. Unfortunately, most of the times (90%), my clients say they are threatened or coerced in some manner; the officers deny it at all costs.

If you are in the home when an officer approaches, they may do so under the guise of a different scenario.  They may say they have knowledge of drugs in the house or just make something up.  They knock on your door in order to look in windows, smell odors, hear the hum of lights, or look for additional A/C venting or other things they relate to a grow.  There is another doctrine called “plain view”.  Plain view allows them if an item is in plain view.  The cops must be in the legal place or where they are legally allowed to be, i.e. a cop can always do what’s called a knock and talk.  A knock and talk is a situation where an officer may have suspicion that individuals residing at a residence are involved in narcotic sales, maybe a fugitive is hiding there, or they believe they have to investigate the house for criminal activity but do not have sufficient evidence for a warrant.  They may look through the windows to find things in “plain view”, like a bong or bowl on a coffee table, to justify their intrusion into your home.  Plain View doctrine allows them to seize these items and possible further detain you and request a warrant.  Hide anything prior to opening the door, or better yet don’t open it at all.  There is no obligation for you to speak with them.

Officers will come up and knock on your door to see if they can see or smell anything that would give them probable cause to search the house.  This is extremely common with grow houses.  Officers get a tip about a grow-house, first thing they may try to do is trash pulls.  They go through your garbage once you put it at the curb.  It becomes abandoned property once placed at the curb or once it goes into a dumpster.  They can and do come by and collect it themselves, you have no expectations of privacy to it, therefore, no rights to argue against them searching your garbage.  They are looking for fertilizer, plant pieces, stems, seeds, baggies, anything they can say is related with the growing of cannabis.

Law enforcement may walk around the areas of your house that are accessible and open to the public.  With this, they then claim that they see additional air conditioner units, ventilations that are not normally in a house, and other things they say they know are commonly use in grow operations.  The hum or buzz of grow lights, the odor of cannabis outside the house, fans inside, and garbage disposed outside the house, anything and everything they can use to relate your actions to illegal activity.  Avoid having those items don’t throw your waste in the trash, and hopefully prevent the next step from occurring, the Officers getting a search warrant.

Usually they apply for a warrant based on information allegedly discovered in the knock and talk.  The most important thing you can do is be prepared; you want to remember you never have to let them into your house without a warrant.  The best thing to do is try to create a threshold or find another door, side door or back door, so they can’t see in your house at all.  Open the door and go outside, do not stand in the doorway, do not open the door to let them in or look inside.  Remember you do have rights and you can assert those rights and the first way to assert those rights is to not let them intimidate or non-chalantly push themselves into your house.  They use subtle tactics.  For example you open the door and stand back, they open the screen door and take a step forward to talk to you.  What they are really doing is taking the first step across the threshold. They are using their eyes and their training in observation to try to find anything they can see in the house, they are trying to smell anything that may be growing or being smoked in the house, anything to give them probable cause to search.  Open the door and step outside close the door behind you try to make it clear without saying so, that you don’t want them in your house.  Remember the cardinal rule under all circumstances be polite don’t make it obvious and be calm and relaxed.  If possible have an outside gate prior to your door and greet them outside.

The next thing you do is assert your rights, talk to them, look them in the eyes, and respond correctly to their questions, you never have to admit to anything.  If you feel intimidated, remember you have the right to an attorney and/or to cease the conversation.  If they come to ask you general questions don’t talk to them, politely say, “Sir I apologize I have things to attend to, is this mandatory that I speak to you? Because If not I would like to end this conversation and continue with what I was doing. If you would like we can set up another time, where yourself and my attorney could speak and if you still like to get together with me you can arrange that through him”.  You must ask unequivocally or state unequivocally I have an attorney and I do not want to answer any questions without him present.  You cannot say I “think” I would like an attorney, you cannot say “maybe I would like an attorney”, ambiguous words are not sufficient, the officers can continue to  ask the questions if you say “think”, “maybe” or any other word that may be considered ambiguous.  They do not have to ask you whether or not you want an attorney but it’s your right and should always request one.

In a knock and talk situation you should know they don’t have an obligation to read you Miranda rights, unless you are in a custody.  The courts have defined custody as “in one which a reasonable person would not feel free to leave, or end the conversation”.  It is not the belief of a normal person it is a higher standard, one that requires some sort of restraint by the officers.  So, in a knock and talk situation it is typically not considered a custodial interrogation so the Officer does not have to read you Miranda Rights.  You always have the right to tell the officer in a non-custodial interrogation you would like the officer to leave and you are not talking.  If you want to leave your card and contact me in the future I would have my attorney call you.  Goodbye.  Say something along those lines that is not aggressive and they understand you have rights and you are not going to allow them to intimidate and walk over you.

I understand many people come to me and say “well aren’t they just going to be more suspicious? Well the bottom line is if they are there knocking on your door, they are already suspicious. It is better to defend your case if refuse and do not consent and do not give them any evidence against you.  It will make it more difficult to be able to be properly defended if you consent, if not impossible.  Remember they can and will lie to you to confess or influence you into entering your home, confessing or allowing a search, stay strong.

If you are ever in a situation where you are going to speak or cooperate, you should have your attorney present at all times.  Make sure your rights are protected and any benefits you may gain from speaking to law enforcement will be enforceable in a court of law.

If you would like more tips or have questions about protecting yourself contact my office at www.MinardiLaw.com.