One issue a criminal defense lawyer may use in defending a Massachusetts drug crime is to challenge the use of “Knock and Talk” searches often utilized by law enforcement.

“Knock and Talk” is a law enforcement tactic that police officers practice when they lack sufficient evidence, probable cause, or reasonable suspicion to obtain a search warrant. Typically, working off a tip, an officer will arrive at the suspect’s home, engage in conversation at the door, and then attempt to gain consent from the suspect to search the premises. This does not violate the 4th Amendment that guards against an unlawful searches or seizures so long as the suspect gives consent to search. However, a court will take into consideration if a reasonable person would have felt pressure by the officer to allow the search. “Knock and Talk” procedures are on the edge of being unlawful because this tactic has a great risk for abuse that may challenge the 4th amendment.

A criminal defense attorney in the North Carolina Court of Appeals was recently successful in challenging “Knock and Talk” tactics when the court ruled that Marijuana plants seized during a routine “Knock and Talk” violated the plain view doctrine, State v. Grice, No. COA12-577, North Carolina App. Ct. (2012).

The plain view doctrine allows an officer to seize without warrant, any evidence or contraband they find in plain view. For example, typically this tactic is used by the TSA Federal Government Officers while screening persons and property at US airports. However, in this case, the officer went to the suspect’s home after receiving a tip that the suspect was growing marijuana. The officer observed marijuana plants growing in the defendant’s backyard while he was entering the property. The officer then seized the plants before the “knock and talk” took place, using it as evidence to obtain a search warrant.

At court, the suspect moved to suppress the marijuana plant seized from the back yard as evidence, arguing it did not follow the plain view doctrine.

Typically, for the plain view doctrine to apply, the evidence seized must pass the following 3-part test:

1. The officer is lawfully present at the place where the evidence is plainly viewed.

2. The officer has the lawful right of access to the object
3. The incriminatory character of the object is immediately apparent.

In this case, while the marijuana plant was in view, the officer had not yet gained consent to search. Therefore, the officer did not have the lawful right of access to the object. The Court stated that by allowing police to seize “evidence” even if they are lawfully present (the officer was there to perform a knock and talk) and even if the incriminatory character of the object is immediately apparent (it was a marijuana plant, coupled with the tip the suspect was conducting a drug factory), officers do not have the right to seize any property that happens to be surrounding a house or dwelling.

It is important for a criminal defense attorney when defending drug crimes to look at the details of how a warrant was obtained in order to find if there was probable cause, and if “Knock and Talk” tactics were used unfairly. “Knock and Talk” tactics used by law enforcement have great risk for easily being abused and challenging the 4th amendment. For this reason, courts view any possible abuse of “Knock and Talk” with an idea toward whether the police abused their power in coercing consent for a search.