SHERIFF LISES 'KNOCK' RULING

Judges Said "Knock And Talk" Tactics By Orange County Drug Agents Led
To An Unlawful Seizure At A Private Residence.

An appellate court has ruled against the Orange County Sheriff's
Office's use of controversial tactics while entering a woman's home in
2001 and seizing a small amount of drugs.

The 5th District Court of Appeal ruling filed Friday says members of
the sheriff's so-called "tip squad" conducted an "unlawful seizure"
after they approached Lynn Miller outside her house on Edland Drive.

Miller was about to leave her home to run errands, but three deputies
dressed in black smocks reading "Orange County Sheriff" persuaded her
to go back inside and discuss an anonymous tip that "possible drug
activity" had gone on in her home, according to court records.

Drug agents said that they needed to speak with Miller and that it was
better to do it inside her home so neighbors wouldn't see.

The deputies employed the Sheriff's Office's "knock and talk" tactics,
which are used when there is not enough information on a suspect to
support issuing a search warrant.

Instead of ignoring the tips, squad members go to where the alleged
criminal activity has occurred. They try to get a resident's
permission to enter a home and conduct a search.

It's not clear how the court's decision will affect the sheriff's
operations or the policies of other departments in the 13 counties
covered by the appellate court. Lawyers with the state Attorney
General's Office arguing the case may ask for a re-hearing. The case
may ultimately go to the Florida Supreme Court.

"Until and if it becomes finalized, our procedures are going to be the
same," said Cpl. Carlos Torres, a sheriff's spokesman. "And if or when
it becomes finalized, or if there is a decision, they'll have to sit
down and review our policy and deal with it accordingly."

In Miller's case, squad members succeeded in gaining access to her
home on March 14, 2001. They never told Miller she had a right to
refuse their requests.

After questioning, Miller gave the deputies a small amount of
marijuana, a piece of crack cocaine and a pipe. In court records,
Miller said a deputy told her "that I needed to let him in or they'd
get a search warrant. . . . I thought I had no alternative."

Miller was later charged with possession of a controlled substance,
possession of marijuana and possession of drug paraphernalia. She was
prosecuted based on the seized evidence. Now, the appellate court says
the seizure was illegal.

"We conclude . . . that a reasonable person would have felt compelled
to comply with the officers' requests, and that [Miller's] encounter
with police amounted to an unlawful seizure within the contemplation
of the Fourth Amendment," two of three appellate judges wrote in their
ruling.

"This considerable show of authority was sufficient to create the
perception that a major criminal investigation was under way," Judges
Vincent G. Torpy and Earle W. Peterson wrote.

Though the case involved "knock and talk" tips, tactics and practices,
the judges said in a footnote that they did not view Miller's case as
a "knock and talk" case. Squad members never actually knocked on
Miller's door.

Judge William D. Palmer dissented with the majority
opinion.

Miller pleaded no contest to the two drug charges, and the third
charge was dropped. Orange Circuit Judge Frederick Lauten withheld
adjudication on the charges and placed Miller on probation.

But earlier in the case, Lauten refused to suppress the evidence
seized. The appellate court ruling reverses that specific decision. If
the ruling stands, Miller's conviction would be overturned.

Miller's lawyer, Steven G. Mason, says the ruling may have widespread
ramifications on "knock and talk" practices.

"The court is telling judges in 13 counties that here we have a
process and this 'knock and talk' is inherently coercive," Mason said.
"I think this opinion is sending a message that 'knock and talk' is
constitutionally suspect."

In Orange County, Mason said the Sheriff's Office practice is either
"going to have to be scrapped or the program is going to have to be
substantially modified."

Responding to public-records requests from Mason, the Sheriff's Office
said it had collected 7,261 "tips" between 1997 and 2002. But the
office said it did not catalog "the number of residential searches or
seizures conducted as a result of tip information."

The Sheriff's Office employs a unit called "Squad Five" whose sole
purpose is conducting the "tip investigations." No background
investigation is conducted to confirm or dispel the complaints,
according to court documents Mason filed.

Mason attempted to get the sheriff's database to determine the number
of tips and seizures done by the office to establish "an institutional
practice" of coercion, but he was denied.

The "knock and talk" practice has been popular with law-enforcement
departments across the United States because it allows agencies to
enter homes even though no probable cause has been established and
they have no search warrants.

The Brevard County Sheriff's Office has no such policy, but it is not
a new practice among law-enforcement agencies, said Bob Sarver, the
office's undersheriff.

"I was doing it 20 years ago as a narcotics cop in Melbourne," Sarver
said. "It's certainly not self-contained to the Orange County
Sheriff's Office."

Not all agencies, however, are quick to use the practice.

"We've done it in the past, but we certainly do not do it as a matter
of routine," said Seminole County Chief Deputy Steve Harriett. "We
want to emphasize that we understand and appreciate the Fourth
Amendment, which protects people from unreasonable search and seizure,
and we're sensitive to that."

In Lake County, however, the practice is used. And in Kissimmee,
police Capt. Russ Barnes said his agency uses knock-and-talks
regularly in drug investigations.

"This is along the lines of a consensual street encounter," he
said.

Pedro Ruz-Gutierrez, Jim Buynak, Susan Jacobson, Gary Taylor and
Laurin Sellers of the Sentinel staff contributed to this report.