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.