FL2: Trial court imposed too high a burden of consent on state in knock-and-talk

Circuit court erred in requiring the state to have a tip for a knock-and-talk and not a hunch. This raised the burden of proof. State v. Navarro, 19 So. 3d 370 (Fla. App. 2d DCA 2009):

Furthermore, the policy behind knock-and-talk encounters supports this conclusion. The rationale for a knock and talk is that

[a]bsent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s ‘castle’ with the honest intent of asking questions of the occupant thereof–whether the questioner be a pollster, a salesman, or an officer of the law.

Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964). “Thus, ‘[o]fficers are allowed to knock on a residence’s door or otherwise approach the residence seeking to speak to the inhabitants just a[s] any private citizen may.'” United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006) (first alteration in original) (quoting Estate of Smith v. Marasco, 318 F.3d 497, 519 (3d Cir. 2003)). The circuit court’s ruling conflicts with the proposition that police officers may approach a residence and speak to the residents just as any private citizen may. Thus the circuit court fell into error when it ruled that the knock-and-talk encounter at issue in this case amounted to illegal police conduct.

Our conclusion about the legality of the knock-and-talk encounter brings us to the question of the standard of proof applicable to the determination of the voluntariness of the consent search:

Where the state asserts it had the right to search … despite the absence of a warrant because the defendant consented to the search, the state has the burden to prove that consent was freely and voluntarily given. The burden of proof in these cases depends on whether there is invalid police conduct prior to obtaining the consent. “Under ordinary circumstances the voluntariness of the consent to search must be established by preponderance of the evidence.” With invalid police conduct like prolonged detention, threats to obtain a warrant, or repeated requests for consent, the burden of proof is elevated to the clear and convincing standard.

Dormezil v. State, 754 So. 2d 168, 169 (Fla. 5th DCA 2000) (citations omitted) (quoting Denehy v. State, 400 So. 2d 1216, 1217 (Fla. 1980)). Here, the circuit court applied the clear and convincing evidence standard of proof because it found illegal police conduct based on its erroneous interpretation of the law concerning knock-and-talk encounters. But based on our conclusion above and because the knock and talk was not otherwise illegal, the appropriate standard of proof was preponderance of the evidence. Accordingly, we reverse the circuit court’s order and remand for reconsideration of the motion to suppress under the proper standard of proof. See State v. T.L.W., 783 So. 2d 314, 317 (Fla. 1st DCA 2001).