U.S. v. Thomas, 04-6148.

• Decision Date: 01 December 2005
• Docket Number: No. 04-6148.,04-6148.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Christopher Todd THOMAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 274

430 F.3d 274

UNITED STATES of America, Plaintiff-Appellant, v. Christopher Todd THOMAS, Defendant-Appellee.

No. 04-6148.

United States Court of Appeals, Sixth Circuit.

Argued: September 23, 2005.

Decided and Filed: December 1, 2005.

ARGUED: Victor L. Ivy, Assistant United States Attorney, Jackson, Tennessee, for Appellant. C. Mark Donahoe, Hardee, Martin, Dauster & Donahoe, Jackson, Tennessee, for Appellee. ON BRIEF: Victor L. Ivy, Assistant United States Attorney, Jackson, Tennessee, for Appellant. C. Mark Donahoe, Hardee, Martin, Dauster & Donahoe, Jackson, Tennessee, for Appellee.

Before: SILER and SUTTON, Circuit Judges; SHARP, District Judge.^*

SUTTON, Circuit Judge.

The United States challenges a suppression-of-evidence ruling, arguing that the district court erred in concluding that police officers constructively entered a home without a warrant and without being able to satisfy any of the narrow exceptions to the warrant requirement. Because the police officers did not enter the house and because the defendant, Christopher Thomas, did not exit the house as a result of physical force or any other conspicuous show of authority by the police, cf. United States v. Morgan, 743 F.2d 1158 (6th Cir.1984) and United States v. Saari, 272 F.3d 804 (6th Cir.2001), we reverse.

I.

Early in the morning of October 21, 2003, Tim Higgins, the manager of the Oakland Gin Company in Lauderdale County, Alabama, noticed a pickup truck near the company's tank of anhydrous ammonia. His suspicion aroused, he followed the truck to a restaurant and confronted the driver, Christopher Thomas, who denied being near the tank. Higgins recorded the license number of the truck and reported the incident to local police.

Soon after receiving the report, Deputy Joe Hamilton spotted Thomas driving his truck and stopped him. When asked what he had been doing at the gin company, Thomas explained that he had been looking for a place to eat. Hamilton let him go but then proceeded to the gin company, where he observed that the fence around the tank had been cut, a wrench had been left on the ground and a hose had been tapped into the tank. Based on these observations, the police suspected Thomas of attempting to steal anhydrous ammonia, a chemical used in the production of methamphetamine.

At roughly 10:00 a.m. that morning, several Alabama-based and Tennessee-based police officers drove to the Tennessee home of Ginger Hopper, where Thomas had been living and which is near Lauderdale County, Alabama. There, they found Thomas's truck parked behind the house; one of the doors to the truck was open, and a Thompson .357 handgun lay on the front seat. The officers also noticed a silver canister in the back of the truck, similar to canisters that one of the officers recognized as having been used in other thefts of anhydrous ammonia.

Two officers knocked on the back door of Hopper's home, which served as the primary entrance to the home according to local police. Two officers went to the front door. Four patrol cars in total were parked at the house, and apparently one of the cars contained a fifth officer. When Thomas came to the back door, the officers "told [him] that the Alabama investigators wanted to talk to him and asked him to come out of the residence, which he did." D. Ct. Order at 5; see also Thomas Br. at 6 ("The Defendant was asked to come outside the residence."). After Thomas exited the house, he refused to talk and requested an attorney. At this point, the officers arrested him.

After the arrest, the police searched Thomas and discovered incriminating evidence, including methamphetamine and a handwritten recipe for making more. They also searched the truck and discovered two firearms as well as the scent of anhydrous ammonia.

The district court suppressed the evidence, holding that the arrest violated the Fourth Amendment. Under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the court noted, police may not enter a home to make an arrest without a warrant in the absence of exigent circumstances. Id. at 590, 100 S.Ct. 1371. And under United States v. Morgan, 743 F.2d 1158 (6th Cir.1984), the court added, a "constructive entry" into a home in violation of Payton occurs whenever the police use "coercive [] conduct" to force a defendant outside of the home. Id. at 1166. Concluding that the police conduct in this instance was coercive, the district court held that a constructive entry into Hopper's home had taken place, that the police neither possessed a warrant nor established exigent circumstances for the entry and that the arrest accordingly was unlawful.

II.

"[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton, 445 U.S. at 590, 100 S.Ct. 1371. The question here is when we will deem officers to have crossed that "threshold" in law when they have not done so in fact. As there are no material disputes about what happened during the encounter in this case, the district court's determination that a constructive entry occurred receives de novo review. See United States v. Buchanon, 72 F.3d 1217, 1222-23 (6th Cir.1995); see also United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

On one side of the ledger, the law has long permitted officers to engage in consensual encounters with suspects without violating the Fourth Amendment. See, e.g., Bennett v. City of Eastpointe, 410 F.3d 810, 821 (6th Cir.2005) ("A purely consensual encounter between a police officer and a citizen does not implicate the Fourth Amendment."); United States v. Hudson, 405 F.3d 425, 439 n. 10 (6th Cir.2005) ("The police were of course free to approach Hudson and talk with him so long as they did not do so in a manner that would lead a reasonable person to feel that he was not free to leave."); United States v. Waldon, 206 F.3d 597, 602 (6th Cir.2000) ("[T]he consensual encounter may be initiated without any objective level of suspicion.").

Consensual encounters do not lose their propriety, moreover, merely because they take place at the entrance of a citizen's home. A number of courts, including this one, have recognized "knock and talk" consensual encounters as a legitimate investigative technique at the home of a suspect or an individual with information about an investigation. See, e.g., United States v. Chambers, 395 F.3d 563, 568 n. 2 (6th Cir.2005) ("Courts generally have upheld [the knock and talk] investigative procedure as a legitimate effort to obtain a suspect's consent to search."); Ewolski v. City of Brunswick, 287 F.3d 492, 504-05 (6th Cir.2002) (concluding that it was reasonable to approach a suspect's home to attempt to learn more through consensual questioning); Nash v. United States, 117 Fed.Appx. 992, 2004 WL 2912796, at *1 (6th Cir. Dec.16, 2004) (noting that this court has "explicitly upheld the legitimacy of doorstep investigatory interviews"); United States v. Jones, 239 F.3d 716, 720 (5th Cir.2001) ("Federal courts have recognized the `knock and talk' strategy as a reasonable investigative tool when officers seek to gain an occupant's consent to search or when officers reasonably suspect criminal activity."); United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir.2000) (holding that "no suspicion needed to be shown in order to justify the `knock and talk'"); United States v. Jerez, 108 F.3d 684, 691-92 (7th Cir.1997) (recognizing that a knock and talk is ordinarily consensual unless coercive circumstances exist); United States v. Titemore, 335 F.Supp.2d 502, 505 (D.Vt.2004) ("Under the rule permitting knock and talk visits, no Fourth Amendment search occurs when police officers who enter private property restrict their movements to those areas generally made accessible to visitors.") (quotation omitted).

On the other side of the ledger, we have held that a consensual encounter at the doorstep may evolve into a "constructive entry" when the police, while not entering the house, deploy overbearing tactics that essentially force the individual out of the home. In United States v. Morgan, 743 F.2d 1158 (6th Cir.1984), we held that a "constructive entry" occurred when a suspect emerged from a house "in response to coercive police conduct." Id. at 1166. And in United States v. Saari, 272 F.3d 804 (6th Cir.2001), we described coercive police conduct as "such a show of authority that [the] Defendant reasonably believed he had no choice but to comply." Id. at 809.

The difference between the two — between a permissible consensual encounter and an impermissible constructive entry — turns on the show of force exhibited by the police. In Nash, for example, we described a typical consensual encounter: "No testimony ... indicate[d] drawn weapons, raised voices, or coercive demands on the part of the police.... Rather, Nash opened the door willingly, and when requested, stepped out onto the porch." 2004 WL 2912796, at *1, 117 Fed.Appx. 992. Morgan, by contrast, involved a team of ten officers who surrounded the house, blocked the suspect's car, "flooded the house with spotlights and summoned Morgan from his mother's home with the blaring call of a bullhorn." 743 F.2d at 1161. And Saari involved four officers who "knocked forcefully on the door and announced that they were the police." 272 F.3d at 808. One officer "had a 12-gauge, pump-action shotgun drawn and in a `low ready' position, that is, pointed at approximately forty-five degrees toward the ground in front of the door." Id. at 806. The others had their service weapons drawn, and, "[u]pon opening the door, Defendant was instructed to come outside, which he did." Id. at 808; see also Sharrar v. Felsing, 128 F.3d 810, 819 (3d Cir.1997) (holding that "[n]o reasonable person would have believed that he was free to remain in the house" when the police surrounded the house, pointed machine guns at...