Criminal Practice – Search & Seizure – Consent to Search – Voluntariness – Knock & Talk

In this knock and talk case, the trial court found that defendant “did not feel intimidated” when he opened his front door to four uniformed officers, and that he “understood he was not under arrest.” Although defendant’s appellate brief states that he was “faced with a phalanx of four uniformed officers at his front door,” the record is clear that this sight did not intimidate him. The four officers here hardly comparable to the Greek army at Thermopylae. Defendant did not challenge the trial court’s factual finding that he “did not feel intimidated” and “understood he was not under arrest”; therefore, this finding is binding on appeal.

We affirm the trial court’s denial of defendant’s motion to suppress the evidence seized during the search of his home.

The officers behaved civilly toward defendant, asked for permission to enter and to look around, did not threaten defendant or command him to let them inside, and did not use deceptive tactics to gain entry. The record does not reflect that the officers drew weapons at any time during the encounter.

Defendant argues that the officers exceeded the scope of public license permissible in a “knock and talk”, by knocking for “about a minute or two” with “seven or eight” “loud[]” knocks, and by knocking again after defendant told them he would return after he got dressed. However, the officers waited at the front door after defendant answered and gave them an implicit invitation to stay until he returned. These facts do not indicate that the officers overstayed their “knock and talk” welcome on defendant’s property.

The officers’ request to see defendant’s identification does not indicate coercion. The fact that defendant was in his own home left him with more freedom (as opposed to being in a traffic stop, for example) to terminate the encounter by refusing to provide identification or asking the officers to leave. While the record is silent as to whether the officers retained defendant’s ID card or returned it to him, retention of defendant’s ID card would not amount to a seizure under these circumstances. Defendant could still have asked the officers to leave his house and terminated the encounter without risking his safety or breaking the law.

Defendant’s own testimony demonstrated that being handcuffed did not influence his willingness to sign two consent-to-search forms (one for the house and one for his truck), as he testified that he was “fine with signing a paper and all that.” Although handcuffing defendant is a factor weighing in favor of coercion, defendant’s uncontradicted testimony counterbalances that factor.

Based on the totality of circumstances, we find that the state met its burden to show that defendant’s consent to a preliminary search of his residence was voluntary.

Affirmed.

State v. Guerrero-Avila (Lawyers Weekly No. 012-052-21, 25 pp.) (Jefferson Griffin, J.) (Valerie Zachary, J., concurring in the result only without separate opinion) Appealed from New Hanover County Superior Court (Joshua Willey, J.) Michael Bulleri for the state; Sandra Payne Hagood for defendant. 2021-NCCOA-81