Categories: General
OH8: Four armed officers who moved toward open
door in a knock-and-talk was coercive of consent
Four
armed police officers and two security officers at the door for a
knock-and-talk who moved forward when the door was opened was a coercive show
of force making the consent involuntary. State v. Clark, 2012 Ohio 2058, 2012 Ohio App.
LEXIS 1806 (8th Dist. May 10, 2012):
[*P21] While accepting the trial court's findings of fact as true,
we find that upon considering these factors, the totality of the circumstances
in this case demonstrates that Clark did not voluntarily consent to the
officers' entry into and search of his apartment. The record reflects that four
police officers and two uniformed security officers were waiting for Clark when
he opened his apartment door. Even discounting Clark's testimony that one of
the officers had his gun drawn, we find the presence of six officers
immediately outside Clark's apartment door to be an overwhelming show of force
that was inherently coercive, especially if, as Det. Kreischer testified, the
purpose of a "knock and talk" is simply to "engage a suspect in
conversation."
[*P22] The record also reflects that when Clark opened the door,
the officers immediately surged forward into the doorjamb, making it impossible
for Clark to shut the door. This tactic could only be meant to intimidate Clark
into letting the police into his apartment so they could observe any
contraband, consistent with Det. Carpenter's testimony that the real purpose of
a "knock and talk" is to develop probable cause and make an arrest.
. . .
[*P24] Based on the foregoing, we can only conclude that under the
totality of the circumstances, any consent was the result of coercive police
tactics, and not voluntarily given. "'Consent' that is the product of
official intimidation or harassment is not consent at all. Citizens do not
forfeit their constitutional rights when they are coerced to comply with a
request that they would prefer to refuse." Florida v. Bostick, 501 U.S.
429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Therefore, any evidence
obtained as a result of the warrantless entry into and search of Clark's
apartment should have been suppressed as tainted fruit of the poisonous tree
and, accordingly, the trial court erred in denying the motion to suppress. Wong
Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).