N.D.Ga.: Midnight knock-and-talk troublesome but not involuntary on totality

The nighttime (11:45pm) knock-and-talk is troublesome, but the defendants were up and the rest of the encounter shows that it was voluntary. United States v. Bearden, 2013 U.S. Dist. LEXIS 67975 (N.D. Ga. April 17, 2013):

The Court is somewhat troubled by the late hour at which Agent Mueller began this “knock and talk” (i.e., 11:45 p.m.). However, the record shows that the front porch light was on, the adult occupants came immediately to the door when Agent Mueller knocked (i.e., only the children were asleep), and there is no evidence that the adults had been sleeping or were dressed in sleep attire. fn9 Although a “suspect does not consent to a search of his residence when his consent to the entry into his residence is prompted by a show of official authority,” United States v. Ramirez-Chilel, 289 F.3d 744, 751 (11th Cir. 2002), that was not the case here. Agent Mueller’s testimony shows that he made no threats, brandished no weapons, and made no demand for admission into the home; instead, the record shows that Mr. Bearden freely invited the officers into his residence after they explained why they were there.

fn9 The Eleventh Circuit dealt with a search at 11:45 p.m. Ramirez-Chilel, 289 F.3d at 751 n.8. As the Circuit noted in that case, “[n]ighttime searches are deemed to be more intrusive than daytime searches, and the assemblage of law enforcement officers at one’s door in the middle of the night has a tendency to be more coercive than during the day.” Id. That being said, the Court finds here, as the Eleventh Circuit did in Ramirez-Chilel, that based upon the totality of the circumstances, “the fact that the search occurred at midnight does not by itself negate the voluntariness of [the Beardens’] consent to search.” Id.

Defendant and her husband also executed a written consent to search form. Police officers may search, without a warrant or probable cause, areas that are protected by the Fourth Amendment if they obtain the possessor’s voluntary consent to search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The government bears the burden of proving both the existence of consent and that the consent was given freely and voluntarily. United States v. Hidalgo, 7 F.3d 1566, 1571 (11th Cir. 1993). “The voluntariness of the consent must be judged in the light of the totality of the circumstances.” United States v. Tovar-Rico, 61 F.3d 1529, 1535 (11th Cir. 1995). “[T]he absence of intimidation, threats, abuse (physical or psychological), or other coercion is a circumstance weighing in favor of upholding what appears to be a voluntary consent.” United States v. Jones, 475 F.2d 723, 730 (5th Cir. 1973).

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The totality of the facts and circumstances surrounding the Beardens’ consent to search the residence show that it was freely and voluntarily given. Neither Mr. nor Ms. Bearden were under arrest or threatened with arrest; they were not forcibly detained prior to giving consent; and they had been advised that they could order the officers to leave. Moreover, they appeared to be at ease with the officers and cooperated readily, rather than reluctantly. Although Ms. Bearden was aware that incriminating evidence would be found in the vehicle, any contention that consent was coerced is unsupported in the record. There is no testimony indicating that all six agents were at the door at one time. Only three officers entered; and only two remained inside. There is no evidence that the officers intimidated the Beardens into granting consent. Moreover, there is no evidence that weapons were drawn, threats were made, or that Mr. or Ms. Bearden were operating under some disability that would have prevented them from denying the request for consent.