D.Neb.: Bodycam video shows that defendant did not consent to police entry during a knock-and-talk

Bodycam video shows that defendant did not consent to police entry during a knock-and-talk. It was mere acquiescence to a claim of authority. Inside they could smell marijuana. United States v. Rodriguez, 2015 U.S. Dist. LEXIS 98292 (D.Neb. July 28, 2015):

The court respectively disagrees with the magistrate judge’s conclusion that the defendant’s motion to suppress should be denied. The government relies on consent to justify the entry into the defendant’s home and the subsequent search thereof. This court’s review of the videotaped encounter with the police does not support the finding that the defendant consented to the officers’ entry into his home, either explicitly or impliedly. The defendant’s statements, gestures, and body language indicate nothing more than acquiescence to lawful authority. There is no dispute that the defendant did not explicitly consent to the officers’ entry or invite them in. The court finds the actions and statements shown on the video are not conduct from which this court can infer knowing and voluntary consent. Accordingly, the government has not sustained its burden to show that a valid exception to the warrant requirement applies. Even if the conduct could be construed as consent in the first place, the government has not shown that the consent was knowing and voluntary.

The evidence shows that when the defendant opened the door, he saw two police officers on his porch, and one near his window. There were two more officers nearby, at least one of whom can be seen in the video wearing a tactical jacket. The officers identified themselves and asked to enter. The defendant did not give verbal or spoken consent. The videotape shows only that, after hearing the officer’s cursory explanation, the defendant turned and walked into his home. Before he could close the door behind him, the lead officer is across the threshold and inside his home.

The officers freely admit that they followed the defendant into his home. They had explicitly asked for permission and no explicit permission was given. The video does not show the sort of gestures by the defendant such as clearing a path, yielding the right of way, or motioning for someone to enter that would clearly and unequivocally show unspoken consent. The only possible signal of consent is the defendant’s act of stepping back into his house. He did not back into his house, hold the door open for the officers, or gesture for them to follow him, but turned his back to the officers and walked in. He did not say anything while he retreated, such as “okay,” “fine,” or “come in” after the police asked to enter the house. Nor did he nod his head or gesture so as to indicate any affirmative response to the officer’s request. In fact, the court finds he expressed what could be characterized as dismay and resignation when he turned to find the officers had already crossed the threshold into his house. Because the officers were already in the house by the time he turned around, the defendant did not have any opportunity to shut the front door on the officers. The defendant’s conduct shows only acquiescence to authority, which is not enough, standing alone, to demonstrate consent. Under these circumstances, the defendant’s silence cannot equal consent. Rodriguez simply stepped into his home and did not say a word to the officers, one of whom testified that his intent in the encounter was to get into the house to sniff for himself.