Wednesday, December 9, 2015

"Knock and Talk" Scrutinized by COA Post-Jardines

Yesterday, the Michigan Court of Appeals decided an interesting 4th Amendment issue relating to a popular tactic utilized by police departments across the State of Michigan, "knock and talk." In the consolidated cases of People v Frederick and People v Van Doorne, Kent County Circuit Judge Dennis Leiber had denied each defendant's motion to suppress. Each filed applications for leave to appeal to the Court of Appeals that were denied. The Supreme Court, however, remanded the cases as on leave granted to consider whether the "knock and talk" procedure used by the Kent Area Narcotics Enforcement Team  (KANET) violated the 4th Amendment pursuant to the United States Supreme Court's holding in Florida v Jardines___ US ___; 133 S Ct 1409; 185 L Ed 2d 495 (2013).

In Jardines, Justice Scalia wrote the opinion for the majority, concluding that police officers who approach a house and enter onto the front porch with a drug detection canine, do so in violation of the 4th Amendment. The vast majority of homeowners give implied consent for persons to approach the front door of the home. “[T]o find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police.”  Because a homeowner does not impliedly consent to such an intrusion into the curtilage of the home, any evidence gained as the result of such a search cannot be utilized to support the issuance of a search warrant.

A typical "knock and talk" procedure similarly involves one or more officers approaching the front door of the home, knocking, waiting for someone to answer and then engaging that person in a conversation in order to gain information or evidence.  In the Frederick case, KANET officers had executed a marijuana search warrant at the home of Timothy and Alyssa Scherzer and the Scherzers promptly informed the KANET officers that they had supplied marijuana butter to two deputies currently working in the Kent County Jail (through intermediaries).  Rather than obtaining search warrants for Frederick's and Van Doorne's homes, seven officers wearing tactical vests and carrying holstered sidearms went to Frederick's home at 4:00am.  They knocked on the front door and waited for a few minutes before Frederick answered.  They informed him that his name had come up in a criminal investigation and asked for permission to come in. He acceded to the request and after further questioning showed them his marijuana butter and consented to a further search of his home.  The same officers arrived at Van Doorne's home at 5:30am and conducted the same procedure with the same result.

The Court of Appeals' majority, Judges Michael Talbot and Kirsten Kelly, concluded that the procedure utilized by the KANET officers here did not violate the rule espoused in Jardines and, therefore, did not violate the 4th Amendment.  However, Judge Deborah Servitto wrote a lengthy dissent, concluding that the trial court erred in failing to suppress the evidence.

A difference between the Jardines scenario and the present one, obviously, centers on the former's use of the drug detection canine, as highlighted by Justice Scalia above. Judge Servitto goes further, however, in pointing out that the knock and talk tactics used here were executed between 4:00am and 5:30am, times leading Judge Servitto to hold "I would interpret the instant case as presenting the specific question of whether a knock and talk procedure conducted at a private residence in the middle of the night (the “pre-dawn hours”), without evidence that the occupant of the residence extended an explicit or implicit invitation to strangers to visit during those hours, is an unconstitutional search in violation of the Fourth Amendment."  Her framing of the issue, she points out, finds support in the Jardines opinion in both the majority opinion as well as Justice Alito's dissent.  The majority here provided little analysis of the timing issue and simply concluded, "while a typical person may well find the presence of uniformed police officers on their doorstep in the early hours of the morning 'unwelcome,' we cannot conclude that it is, without more, the type of circumstance that would lead an average person 'to—well, call the police.'"  Judge Servitto, properly I believe, concluded that the fact is, the average person does not consent to seven uniformed and armed police officers banging on their front door in the middle of the night seeking to gain entry into the home to conduct a search.  The officers intentions were objectively clear based upon all of the facts and circumstances presented at the lengthy evidentiary hearing in the trial court.

Neither defendant has yet filed a further application for leave to appeal back to the Supreme Court, however, given the current make up of the Court and Judge Servitto's well-reasoned dissent, it will be interesting to see how such a request is handled.  On appeal, Frederick was represented by Bruce Block of Ada, Michigan, and Van Doorne was represented by Jeffrey Arnson of Grand Rapids.  James Benison represented the Kent County Prosecutor.

Thursday, July 9, 2015

COA Reverses Oakland Circuit on Right to DNA Testing

Yesterday, the Michigan Court of Appeals rendered its published opinion in People v Gilbert Lee Poole, Jr., Docket No. 315982, holding that Poole was entitled to DNA testing of blood samples preserved from the scene of a 1988 homicide.  The interesting aspect of the case is the fact that, in Poole's 1989 trial in Oakland County, blood typing of blood found at different areas of the scene had already excluded Poole as the source of the blood, and the jury was informed of that fact. Yet the jury still found him guilty of the murder.  Poole has a fairly rare blood type of AB, which represents only about 3% of the population.  The victim's blood type (O) was found in many areas of the crime scene, and the investigators found no type AB blood.  However, one blood sample, found on a rock in the victim's pants, was type B, matching neither Poole nor the victim.

Poole had petitioned the trial court on two separate occasions for DNA testing of the blood samples, and each time the trial court denied the request.  First, in 2006, Judge Edward Sosnick denied the request because "Evidence presented at the defendant's trial already established that the defendant’s blood [type] was not found on the victim."  Poole's second petition was also denied in 2012.  Judge Rae Lee Chabot held "the jury had been fully aware that defendant was not the source of any crime scene blood, given the blood-type evidence, yet the jury still convicted defendant.  DNA testing excluding defendant as a donor would therefore add nothing of relevance if a new trial took place." The defendant's second petition was the subject of the present appeal.

The Court of Appeals initially had affirmed Judge Chabot's ruling, finding that the decision before them had already been decided against the defendant (following Judge Sosnick's ruling), and, therefore, that decision was the law of the case.  Poole filed an application for leave to appeal with the Michigan Supreme Court.  In lieu of granting leave to appeal, the Supreme Court remanded the case to the Court of Appeals, holding that the earlier orders from the the Court of Appeals and the Supreme Court did not constitute "law of the case" because the issue had not been decided on the merits in those courts.  Also, the Supreme Court held, "“no provision set forth in MCL 770.16 prohibits the issuance of an order granting DNA testing of previously tested biological material."

MCL 770.16 sets forth the hurdles a defendant must overcome in order to be granted the opportunity to have biological material, still in existence, analyzed for the presence of DNA.  They are: (1) defendant was convicted of a felony at trial before January 8, 2001, and is currently serving a prison sentence for the conviction; (2) that defendant’s petition was filed in the sentencing court before January 1, 2016; (3) that biological material was collected and identified during the police investigation of defendant’s case; (4) that defendant presented prima facie proof that the biological evidence sought to be tested was material to the question of defendant’s identity as the perpetrator of the murder; (5) that there is clear and convincing evidence that a sample of biological material is indeed available for DNA testing; (6) that there is clear and convincing evidence that the biological material was not previously subjected to DNA testing; and (7) that there is clear and convincing evidence that defendant’s identity as the perpetrator was at issue during his trial.

The issue for Poole was that the two trial court decisions had, apparently, concluded he failed to meet the requirement of subsection (4), that the DNA evidence was material to the question of the identity of the perpetrator.  Both trial court opinions had focused on the fact that Poole was excluded as the source of any blood evidence found at or around the scene.  Any further DNA testing would not yield any more evidence that would be material to the defendant's identity as the perpetrator of the crime.

However, the Court of Appeals, adhering to the meaning of the words chosen by the legislature, found that Poole had satisfied all seven of the requirements set forth by MCL 770.16.  Further, the statute mandates that the court "shall order DNA testing" once the defendant has satisfied the above requirements.  On the question of materiality, the court found that DNA testing is much more specific than the old, blood-typing evidence.  Testing of the sample that did not match either Poole or the victim could yield the identification of another individual involved in the murder.  Here, the only evidence that linked Poole to the murder was the fact that the two left the bar together and Poole's ex-girlfriend who claimed, five months after the homicide, to have heard Poole confess to it.  Therefore, the decision of the Oakland County Circuit Court, denying Poole's request for DNA testing, was reversed and the case remanded to the circuit court.

Poole was represented by Marla Mitchell-Cichon from the Cooley Innocence Project in Lansing. The prosecution was represented by Joshua Miller of the Oakland County Prosecutor's Office.  The local press has covered the result as well in the Oakland Press and the Detroit News.