KNOCK AND TALKS PT II: ADMISSIBILITY OF STATEMENTS AND CONSENT TO SEARCH

Read Part I of This Article Here

Knock and talks are often used by law enforcement officers to attempt to further an investigation where information immediately known may be short of probable cause.  On February 10, 2014, the Eighth Circuit Court of Appeals decided the United States v. Crisolis-Gonzalez [i], which serves as an excellent review regarding many legal issues that occur during a knock and talk.  The facts of Crisolis-Gonzalez are as follows:

During his investigation of a series of drug trafficking cases in St. Joseph, Missouri, Special Agent Jose Covarrubias of Homeland Security Investigations received information from a confidential informant that Crisolis-Gonzalez had entered the country illegally, was involved in trafficking methamphetamine, and had possibly purchased a firearm. As a result of receiving this information, two special agents were assigned to conduct surveillance of the apartment complex where Crisolis-Gonzalez was believed to be staying. At the complex, the agents located a vehicle they believed belonged to Crisolis-Gonzalez and informed Agent Covarrubias. Agent Covarrubias and another special agent joined the other two at the complex in order to conduct a “knock and talk,” intending to obtain further information about Crisolis-Gonzalez.

Agent Covarrubias approached the apartment believed to house Crisolis-Gonzalez and knocked on the door. Mr. Reyes-Savedra, boyfriend and roommate of one of the lessees, opened the door, and Agent Covarrubias asked, in Spanish, if he could come in to speak with him. Reyes-Savedra agreed and stepped aside to let the agents in. Upon entering the apartment, the agents noticed a baby and a woman, later identified as Crisolis-Gonzalez’s girlfriend, Yuliet Lara-Andres, in the kitchen. Agent Covarrubias then asked if anyone else was in the home. Neither Reyes-Savedra nor Lara-Andres answered. After being asked again, Reyes-Savedra paused and turned his head slightly towards the hallway.

Interpreting Reyes-Savedra’s hesitance and slight head turn as indicating that other people were in the house, the agents drew their guns and informed Reyes-Savedra and Lara-Andres that they were going to check the apartment for other people. While walking down the hall, the agents yelled “police, police” in Spanish. Crisolis-Gonzalez came out of a bedroom with his hands up. Crisolis-Gonzalez was handcuffed and taken to the living room. Agents also found another individual, later identified as Mr. Ocampo-Ocampo, whom they also handcuffed.

Agent Covarrubias questioned everyone as to their names and immigration status. Crisolis-Gonzalez admitted he was in the country illegally. Agent Covarrubias then requested consent to search the apartment. Crisolis-Gonzalez asked what they were looking for, and Agent Covarrubias told him they were looking for any fraudulent documents, guns, large amounts of cash, and drugs. Crisolis-Gonzalez then stated that he had a gun under his mattress. Two of the agents went to the bedroom to make sure the gun was not loaded but did not seize the gun at that time. Agent Covarrubias again requested consent to search. Crisolis-Gonzalez asked what would happen if he refused, and Agent Covarrubias responded that he would attempt to get a search warrant. Agent Covarrubias handed each resident a consent-to-search form written in Spanish and read it to them. Crisolis-Gonzalez read the form and signed. Lara-Andres also signed the form. Ocampo-Ocampo and Reyes-Savedra declined to consent at that time.

The agents then searched Crisolis-Gonzalez’s bedroom and discovered drugs, drug paraphernalia, cash, and an illegitimate social security card in the closet. Agent Covarrubias obtained a Miranda-warnings form and read the form to Crisolis-Gonzalez. Crisolis-Gonzalez signed the form and agreed to speak with Agent Covarrubias. Crisolis-Gonzalez was taken to the Platte County Jail where he signed the Miranda-warnings form again after being advised of his Miranda rights a second time. Agent Covarrubias then began questioning Crisolis-Gonzalez about the discovered drugs and contraband. [ii]

Crisolis-Gonzalez was subsequently indicted for federal crimes.  He filed a motion to suppress which was largely denied by the district court, except for the suppression of his pre-Miranda statement about his immigration status (see Part II of this article for a discussion).  Crisolis-Gonzalez appealed the denial of the motion to suppress to the Eighth Circuit Court of Appeals.

This article will focus on the admissibility of statements made and the validity of the consent to search.  [Part one of this article discussed issues involving the agent’s entry into the apartment and the protective sweep of the apartment.]

At the outset, it is important to note that Crisolis-Gonzalez was handcuffed when he was originally questioned by the agents regarding his immigration status.

Crisolis-Gonzalez argued several points regarding his statements and consent to search.  First, he argued that the pre-Miranda statement he made regarding having a gun should be suppressed because (1) the agents should have known that questions regarding his immigration status would be likely to illicit an incriminating response, and (2) the agent’s response that with consent to search, they would be looking for fraudulent documents, guns, large amounts of cash and drugs led to the unlawfully elicited gun admission.  Second, he argued that his consent to search the apartment was involuntary because of the coercive atmosphere created by the agents.  Third, he argued that that his post-Miranda statement should be suppressed because it was tainted by the previous illegal conduct by the agents.

As to the first issue regarding the pre-Miranda questions regarding Crisolis-Gonzalez’s immigration status, the court stated:

Interrogation in the Miranda context refers to express questioning and to words or conduct that officers should know is ‘reasonably likely to elicit an incriminating response from the suspect.'” United States v. Briones, 390 F.3d 610, 612 (8th Cir. 2004) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). [iii]

The court then noted that Crisolis-Gonzalez statement about having a gun was totally unrelated to the questioning regarding his immigration status.  Further, the court found the agent’s response as to the object of their search, if provided consent, was also not the type of statement intended to solicit an incriminating response.  The court stated:

Miranda does not protect an accused from a spontaneous admission made under circumstances not induced by the investigating officers or during a conversation not initiated by the officers.” United States v. Hayes, 120 F.3d 739, 744 (8th Cir. 1997) (internal quotation marks omitted) (holding that the defendant’s admission as to her whereabouts on the day of the robbery was volunteered and thus not made in violation of her Miranda rights when the agent merely explained that he wanted to ask questions concerning the events of the day). [iv]

The court then noted that Crisolis-Gonzalez statement about the gun was a volunteered, spontaneous admission.

The next issue before the court was whether the consent search was given freely and voluntarily.  The court stated that, to determine whether consent is free and voluntarily, they must look at the “totality of the circumstances” surrounding the search. [v]  Here, Crisolis-Gonzalez contended that the agents, by their conduct, created a coercive atmosphere.  When examining the facts of the case, the court stated that they found no evidence of coercion.  First, they said that they were aware of the circumstances of the incident, and the agents did not create a coercive interview environment.  Second, the court found it significant that two of the four people present refused to consent to the search; in other words, if half of the people asked for consent to search felt comfortable with refusing consent, it is reasonable to believe that the agent did not coerce the defendant into consenting to the search.

The final issue before the court was whether all the alleged illegalities rendered Crisolis-Gonzalez’s post-Miranda statements inadmissible as “fruit of the poisonous tree.”  In other words, the defendant contended that the illegalities prevented his Miranda waiver from being “voluntary, knowing and intelligent,” all of which are requirements for a Miranda waiver to be valid.

In addressing this issue, they noted that they held that there were no illegalities committed by agents in this case; therefore, Crisolis-Gonzalez’s argument failed.  Further, the court noted that he signed the Miranda waiver form twice with the agents and nothing in the record indicates any facts to support that these waivers were induced by coercion and invalid.

Therefore, the court upheld the denial of the motion to suppress.

_____________________

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

_____________________

CITATIONS:

[i] No. 12-3807 (8th Cir. 2014)

[ii] Id. at 2-4

[iii] Id. at 8

[iv] Id.

[v] Id. at 9