People v. Galloway, Docket No. 241804.

• Decision Date: 19 February 2004
• Docket Number: Docket No. 241804.
• Citation: 675 N.W.2d 883,259 Mich. App. 634
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Joel Arthur GALLOWAY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

675 N.W.2d 883

259 Mich. App. 634

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Joel Arthur GALLOWAY, Defendant-Appellee.

Docket No. 241804.

Court of Appeals of Michigan.

Submitted November 12, 2003, at Detroit.

Decided December 9, 2003, at 9:25 a.m.

Released for Publication February 19, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, James V. Young, Prosecuting Attorney, and Brenda S. Sanford, Chief Assistant Prosecutor, for the people.

Kimberly A. Tomczyk, Lexington, for the defendant.

Before: FORT HOOD, P.J., and MURPHY and NEFF, JJ.

NEFF, J.

In this search and seizure case, the people appeal by right an order of the trial court suppressing evidence obtained in conjunction with a "knock and talk" visit by the police to defendant's home. A drug enforcement team entered the backyard of defendant's home, where one of the officers saw marijuana growing in a lean-to attached to the back of the home. The dispositive issue is whether the knock and talk visit can be used as the premise for a warrantless entry of the backyard area of defendant's home to justify the seizure of evidence under the plain view exception to the warrant requirement.

We agree with the trial court that extending the concept of the "knock and talk" visit in this case to cover entry of the backyard of defendant's home violates the constitutional protection against unreasonable search and seizure. US Const, Am IV; Const 1963, art 1, § 11. We affirm the order granting defendant's motion to suppress the evidence and to quash the information and bindover.

I. Facts¹

In May 2001, the Thumb Narcotics Unit of the Michigan State Police conducted a HEMP (Help Eliminate Marijuana Plants) helicopter flyover of defendant's home after the police received an anonymous tip that marijuana was being grown there. The marijuana spotter in the helicopter radioed the ground crew that he observed pots and potting materials in back of the home and saw a man at the back of the property waving at the helicopter. No marijuana plants were seen. The ground crew of four plainclothes officers, and eventually two uniformed officers, descended on defendant's home, arriving in several vehicles. Sergeant Lawrence Scott arrived first, parked in the driveway of defendant's home, and immediately proceeded toward an individual he saw in the side yard, who identified himself as a neighbor. Scott told the neighbor to wait there, and Scott proceeded around the east side of the home to the backyard. He saw another individual sitting at the rear of the home. He saw Trooper Schwalm come around the home and contact that individual. At that point, Scott saw the marijuana plants inside a lean-to attached to the back of the home. Defendant was coming out of the woods at the rear of the property. When defendant headed into the lean-to and did not obey Scott's commands to stop, Scott apprehended and handcuffed him.

In the meantime, other officers had arrived. Scott and another officer then went to the front of the house, which had a carport on the west end, and knocked on the door. Mrs. Galloway, defendant's wife, answered the door. After a protective sweep of the house, the officers took Mrs. Galloway to a police vehicle for questioning. Mrs. Galloway subsequently signed a consent to search form.

At the time the police went to defendant's home, they had the anonymous tip and visual observations of potting materials from the flyover. It is admitted that no marijuana plants were observed from the helicopter. It is undisputed that the police did not have probable cause to obtain a search warrant. The police seized 122 marijuana plants from the lean-to. They also seized marijuana cigarette butts and marijuana stems and seeds from the inside of the residence. Defendant was charged with manufacturing twenty or more, but fewer than 200, marijuana plants, second offense, MCL 333.7401(2)(d)(ii), MCL 333.7413(2). The trial court concluded that the search and seizure were illegal and suppressed the evidence.

II. Standard of Review

We review de novo a trial court's ultimate decision on a motion to suppress. People v. Frohriep, 247 Mich.App. 692, 702, 637 N.W.2d 562 (2001). However, we review the trial court's findings of fact for clear error. Id. A finding is clearly erroneous if, after reviewing the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made. Id. This Court must give deference to the trial court's factual findings, particularly where the credibility of witnesses is involved. MCR 2.613(C); People v. Farrow, 461 Mich. 202, 209, 600 N.W.2d 634 (1999). Accordingly, we may not substitute our judgment for that of the trial court and make independent findings. Id. It is the prosecutor's burden to show that a search and seizure challenged by a defendant were justified by a recognized exception to the warrant requirement. People v. Wade, 157 Mich.App. 481, 485, 403 N.W.2d 578 (1987).

III. Plain View Seizure

The people argue that the trial court improperly suppressed evidence of the 122 marijuana plants because the police properly accessed defendant's property for a knock and talk and discovered the marijuana plants in plain view. Accordingly, the actions of the police were not offensive to search and seizure principles.

In Frohriep, supra at 697, 637 N.W.2d 562, this Court recently addressed for the first time the constitutionality of the "knock and talk" procedure:

Generally, the knock and talk procedure is a law enforcement tactic in which the police, who possess some information that they believe warrants further investigation, but that is insufficient to constitute probable cause for a search warrant, approach the person suspected of engaging in illegal activity at the person's residence (even knock on the front door), identify themselves as police officers, and request consent to search for the suspected illegality or illicit items.

Whenever the knock and talk procedure is utilized, the ordinary rules that govern police conduct must be applied to the circumstances of the particular case. Id. at 698-699, 637 N.W.2d 562.

In this case, the purported knock and talk led to a seizure based on plain view, not a consent to search as in Frohriep, supra at 701, 637 N.W.2d 562. The plain view exception to the warrant requirement allows a police officer to seize items in plain view if the officer is lawfully in the position to have that view and the evidence is obviously incriminatory. People v. Champion, 452 Mich. 92, 101, 549 N.W.2d 849 (1996); People v. Wilson, 257 Mich.App. 337, 361, 668 N.W.2d 371 (2003). The plain view exception is predicated on police convenience. Champion, supra at 101, 549 N.W.2d 849. "It would be unreasonably inconvenient to require the police, once they have made a valid intrusion and have discovered probable evidence in plain view, to leave, obtain a warrant, and return to resume a process already in progress." Id. at 102, 549 N.W.2d 849.

If the police intrusion was unlawful in the first place, the plain view exception does not apply. Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); People v. Oliver, 417 Mich. 366, 385 n. 16, 338 N.W.2d 167 (1983); People v. Raybon, 125 Mich.App. 295, 300-303, 336 N.W.2d 782 (1983). The dispositive consideration in this case is therefore whether the police intrusion into defendant's backyard was lawful. We conclude that it was not.

Knock and talk, as accepted by this Court in Frohriep, does not implicate constitutional protections against search and seizure because it uses an ordinary citizen contact as a springboard to a consent search. Frohriep, supra at 697-698, 637 N.W.2d 562. Fourth Amendment rights may be waived by a consent to search. Id. at 702, 637 N.W.2d 562.

This case does not fit within the knock and talk framework. Helicopter surveillance and movement by law enforcement officers on the ground directly into the backyard of a private home do not constitute ordinary citizen contact. The knock and talk in this case is more aptly characterized as an investigatory entry of the back area of defendant's home. Such investigatory entry by law enforcement fails Fourth Amendment safeguards.

Moreover, the alleged knock and talk procedure was not used as a springboard to secure defendant's permission for a search. Instead, it was used as a springboard to a plain view exception to the warrant requirement. This certainly is not the constitutional framework in which this Court accepted knock and talk in Frohriep. Id. at 697-699, 637 N.W.2d 562. A predicate to the plain view exception is that the police have the right to be in the position to have that view. Horton, supra; Oliver, supra.

Here, a drug enforcement team, consisting of four plainclothes officers and two uniformed officers, descended upon defendant's home, arriving in succession in several vehicles. Sergeant Scott, who discovered the marijuana, did not wait for the other officers to conduct the purported "knock and talk," but instead proceeded directly to the back of defendant's home after his contact with an individual in the side yard of the home. The police report stated that, according to the anonymous tip, the marijuana was in a six-foot by four-foot container right behind defendant's house. Scott testified that after telling the first individual he encountered to wait there, he proceeded around the house and saw a second individual sitting at the rear of the house, who was approached by Trooper Schwalm when he came around the home. Sergeant Scott saw the marijuana plants inside the lean-to in a large container. At that point, defendant was coming out of the woods at the back of the property. The police did not first approach the front door of home, nor did they proceed along a path that the public could be expected to travel in visiting defendant's home, People v. Houze, 425 Mich. 82, 92 n. 1, 387 N.W.2d 807 (1986),² or simply...