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Police “Knock and Talk” Tactics Hit Home

By FRED A. SIMPSON

Police investigation procedures allow officers to knock on doors of criminal suspects, be they the doors of hotels, motels, offices, or residences. The “knock and talk” procedure is ostensibly one of information seeking. However, if in that process the officers see contraband in plain view that might incriminate their suspect, there is no constitutional protection, and evidence is not suppressed. Knock and talk requires balancing the intrusion of protected interests under the Fourth Amendment with the promotion of legitimate governmental interests, including those of police officer safety. In United States v. Gould, 364 F.3d 578 (5th Cir. 2004), the Fifth Circuit struggled with the knock and talk issue, first with a panel review, and then an en banc review which reached new conclusions about the proper law of warrantless searches, particularly warrantless residential searches.
Deputy sheriffs received telephone warnings that a convicted felon with propensities for violence planned to kill two local judges. The officers went to the felon’s home, a 14 x 60 foot trailer, in order to talk to him, but with no intentions of making an arrest (a typical “knock and talk” activity). Another individual answered the door and told the deputies that their target was down the hall asleep in his bedroom, and he invited deputies to take a look. As deputies approached the bedroom, they saw the door was open but nobody was in the room. They looked under the bed and in the closets where they found three rifles. (Convicted felons have no lawful right to bear arms.) The officers then looked around outside and found the felon hiding in the woods and arrested him. He executed a consent to search and the rifles were seized.
The district court allowed suppression of the three rifles as evidence, on grounds that the person who answered the door had no authority to allow deputies to search the bedroom, despite Government claims to the “protective sweep” doctrine necessary to avoid any surprise attack by somebody who might be hiding. The district court noted that a protective sweep must be incident to an arrest.
The Fifth Circuit panel affirmed the district court in United States v. Gould, 326 F.3d 651 (5th Cir. 2003), but suggested an en banc review was appropriate as to the question of whether a protective sweep may be used where there is no arrest in progress. The en banc review resulted in a mixed decision that there is no hard and fast rule that protective sweeps are only allowable if they are conducted incident to an arrest, despite the fact that many of the cases seem to say otherwise.
The Fifth Circuit noted other requirements for a valid in-home protective sweep. First, the police may only enter the home legally for a legitimate law enforcement purpose. Second, there must be a reasonable, articulable suspicion that the area to be swept harbors an individual posing a danger to those on the scene. In other words, the sweep must be necessary for self-protection because of a reasonable suspicion that an ambush may occur. Third, the search may be no more than a cursory inspection of those spaces where a person may be found. Last, there are two time limitations. The sweep may last no longer than necessary, and for only so long as police are justified in remaining on the residential premises.
One of the several dissenting justices noted that the facts of the Government’s case created a new moniker for the investigative technique: “knock, enter, maybe talk, and search.”

Fred A. Simpson is a partner in the Houston Litigation Section of Jackson Walker L.L.P. engaged in insurance law, motion practice, appellate law, and mediations and arbitrations.

Texas Supreme Court Re-Examines Duty to Invitees

By DAVID V. WILSON

For the first time since 1993, the Texas Supreme Court has analyzed the tort duty of an oil company to invitees of its independent dealers. The appeal in Shell Oil Co. v. Khan, No. 02-0401, 2004 Tex. LEXIS 524 (Tex. June 11, 2004) arose from a suit to recover damages for personal injuries allegedly sustained by Mohammed Khan at a gas station located in Houston. At the time of his injury, Kahn was employed by La Sani, Inc. La Sani was an independent retail dealer of Shell Oil Company, operating under both a dealer agreement with Shell and a lease with Shell for the premises of the gas station.
While Khan was working alone at the station at night, he was shot by an unknown assailant during a robbery. Khan then sued Shell for negligence and gross negligence. Specifically, he alleged that Shell failed to maintain a secure work place, failed to adequately train him, required him to perform his duties in an unsafe manner, and failed to provide and/or implement policies and procedures regarding security and working early morning hours.
At the trial court, Shell moved for summary judgment based on its status as La Sani’s landlord and the general rule that a landlord is not liable for injuries to a tenant’s employees in areas that are part of the tenant’s leasehold. The district court agreed with Shell and granted its motion. On appeal, however, the Texarkana Court of Appeals reversed the trial court’s judgment in all respects. Khan v. Shell Oil Co., 71 S.W.3d 890 (Tex. App.-Texarkana 2002). The appellate court ruled that the lease and dealer agreements allocated sufficient control over safety and security to Shell to raise a fact issue as to Shell’s duty to prevent foreseeable criminal conduct like the robbery that injured Khan. Shell then filed a petition for review to the Texas Supreme Court, which was granted.
The Texas Supreme Court, however, reversed the appellate court’s decision and rendered judgment that Kahn take nothing. In so holding, the Supreme Court examined the contracts between Shell and La Sani. Shell’s Motor Fuel Station Lease with La Sani specified that the premises were to be used for the operation of an automobile service station. The Lease required La Sani, as lessee, to personally and actively manage the business conducted at the premises. La Sani was also required to satisfy all regulatory requirements and was prohibited from maintaining any condition on the premises which might endanger the safety of persons on the premises. The lease also designated La Sani’s principal, Saleem Syed, as the person who had primary management responsibility for the station’s day-to-day operations.
In addition, the Court examined the Dealer Agreement between Shell and La Sani. The purpose of the Agreement was stated as follows:
“Shell’s Identifications [trademarks, brand names, service marks or color scheme] have come to represent to the motoring public the manufacture and sale of quality petroleum and automotive products. The standards and requirements established for Dealer in this Agreement are for the purpose of preserving and continuing the consuming motoring public’s confidence in and acceptance of Shell’s products, to the benefit of such consumers, Shell, Dealer and all other authorized Shell dealers. Dealer, who desires to operate a Shell automobile service station or motor fuel dispensing station as an independent businessman, recognizes the need for Dealer’s compliance with such standards and requirements to prevent detriment and injury to such consumers and Shell, as well as Dealer and such other dealers.”
The Agreement also required La Sani to manage the station’s business so as to comply with Shell’s standards of operation and appearance, as well as the other provisions of the Agreement. The Agree-ment further required La Sani to keep and train a staff of employees, and keep the station in a good, neat condition. Finally, the Agreement specified that La Sani was an independent contractor:
“[N]othing in this Agreement shall be construed as reserving to Shell any right to exercise any control over, or to direct in any respect the conduct or management of, Dealer’s business or operations conducted pursuant to this Agreement; but the entire control and direction of such business and operations shall be and remain in Dealer, subject only to Dealer’s performance of the obligations of this Agreement. Neither Dealer nor any person performing any duties or engaged in any work at Dealer’s Station for or on behalf of Dealer shall be deemed an employee or agent of Shell, and none of them are authorized to impose on Shell any obligations or liability whatsoever.”
Khan argued that these provisions confirmed that Shell retained sufficient control over safety and security of the premises because the contracts specified the station’s hours of operation, the particular training for La Sani employees, and Shell’s protocol before any renovations to the physical structure could be undertaken.
However, the Supreme Court held that there was nothing in the contracts that granted Shell a right of control over the station’s safety and security. In a premises liability case against a landlord for an injury to the tenant’s invitee, the law does not impose a duty on a landlord to the guests of a tenant while the guest is on the property controlled by the tenant. Indeed, in Exxon Corp. v. Tidwell, 867 S.W.2d 19 (Tex. 1993), the Court held that, to determine whether an oil company was liable to a dealer’s employee injured in a robbery at the service station, the inquiry must focus on whether the oil company had the right to control the security defects that led to the employee’s injury. There, the Court held that if Exxon did not have a right to control the security of the station, then it did not have a duty to provide such security. The Court further noted that a hybrid body of law had developed governing oil companies and their service station lessees that involved principles of premises liability and agency law.
Here, Khan argued that he was untrained in dealing with robberies and required to clean outside at night by Syed, resulting in his shooting outside the gas station while cleaning. But when applying the above rule, the Court concluded that the areas over which Khan claimed Shell retained control, like the protocol for improvements and the hours of operation, did not sufficiently relate to the particular conditions that caused Khan’s injury. Consequently, Shell had no duty to prevent criminal conduct on the premises and summary judgment was proper.
In the future, counsel for plaintiffs injured by alleged premises defects at gas stations need to be very thorough if claims are brought against the oil companies who own the premises. The Court has made clear that a very specific connection must be made between the mechanism of injury, and any control retained or exercised by the oil company. The text of the dealer agreement and lease agreement are certain to loom large over the disposition of such claims.

David V. Wilson is a litigator at Hays, McConn, Rice & Pickering, P.C., and a member of the editorial board of The Houston Lawyer.

Component-Part Manufacturers’ Liability Limited

By PATRICE PUJOL

In Bostrom Seating Inc. v. Crane Carrier Co., No. 02-1047, 2004 Tex. LEXIS 522 (Tex. June 11, 2004), a products liability case, a truck manufacturer, Crane, sought indemnity from a
component-part manufacturer, Bostrom. However, the Texas Supreme Court never reached the issue of whether or under what circumstances indemnity would be allowed because, in this case, there was no evidence of a defect in the component part itself.
Dagoberto Gonzales was severely injured in a rollover accident while driving a garbage truck built by Crane. He sued Crane and the driver of another vehicle involved in the accident. Crane then brought third-party actions against component-part makers Bostrom, the manufacturer of the driver’s seat in the garbage truck, and Beams Industries, which made the driver’s side seat belt. Crane sought statutory and common-law indemnification, but not contribution. At trial, the court granted a directed verdict for Bostrom and Beams on the issue of indemnity. The Corpus Christi Court of Appeals reversed the directed verdict, holding that there was sufficient evidence at trial to support a finding that Bostrom could be held responsible for defectively designing the seat.
However, the Texas Supreme Court reversed the appellate court’s decision. Following two intermediate appellate court decisions, the Supreme Court held that if the component-part manufacturer does not participate in the integration of the component into the finished product, it is not liable for defects in the final product if the component itself is not defective. The Court further stated that it was improper to extend strict liability to the supplier of a component part used in a product according to the design of the product’s manufacturer, when the injury was caused by the design of the product itself and not the component part. Accordingly, if there is no evidence indicating that the component part was defective, then its manufacturer should be relieved of liability for a design or manufacturing defect in the final product, including any action for indemnification. In this case, there was no evidence that Bostrom’s seat was defective. And although there was evidence that the design of the seat may have led to a defective restraint-system design, Crane totally controlled that design. Therefore, Bostrom could not be held liable for any possible defective condition of the restraint system.

Patrice Pujol is a shareholder in the Houston office of Spain Hastings & Ward, handling commercial litigation and appeals.

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