People v. Bolduc

• Decision Date: 28 October 2004
• Docket Number: Docket No. 244970.
• Citation: 688 N.W.2d 316,263 Mich. App. 430
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jerry Joseph BOLDUC, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

688 N.W.2d 316

263 Mich. App. 430

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jerry Joseph BOLDUC, Defendant-Appellee.

Docket No. 244970.

Court of Appeals of Michigan.

Submitted June 2, 2004, at Lansing.

Decided August 24, 2004, at 9:20 a.m.

Released for Publication October 28, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, Donald A. Kuebler, and John C. Schlinker, Assistant Prosecuting Attorneys, for the people.

Law Office of Roger G. Isaac (by Roger G. Isaac), Flint, for the defendant on appeal.

Before: HOEKSTRA, P.J., and O'CONNELL and DONOFRIO, JJ.

HOEKSTRA, P.J.

This case is before us by order of our Supreme Court, which, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted. People v. Bolduc, 467 Mich. 900, 654 N.W.2d 330 (2002). In this case, we are required to further define what is permissible conduct by the police when conducting a knock and talk procedure.¹ In People v. Frohriep, 247 Mich.App. 692, 637 N.W.2d 562 (2001), we determined that the knock and talk procedure itself is not unconstitutional, but we also concluded that the knock and talk procedure is subject to judicial review to determine whether the particular circumstances comply with general constitutional protections. Id. at 697-698, 637 N.W.2d 562. The case presently before us raises the issue whether it is unreasonable, and therefore unconstitutional, for the police to prolong a knock and talk encounter at a home after the resident who is the focus of the investigation, defendant herein, has refused to grant permission to search and has directed the police to leave. The district court found that under the circumstances of this case the conduct of the police in extending the encounter with defendant was inherently coercive, and thus the district court suppressed evidence of defendant's incriminating statements and the marijuana that defendant turned over to the police. The circuit court affirmed. We conclude that the district court's findings were not clearly erroneous and that the coerciveness of the encounter constituted an unreasonable seizure of defendant's person. Further, the district court properly suppressed defendant's incriminating statements and the marijuana found in defendant's residence and dismissed the case. Accordingly, we affirm the circuit court's order affirming the district court's order of dismissal.

I. Facts² and Procedural History

At the preliminary examination, the prosecution presented only one witness,³ a police officer, Captain Michael Compeau, who testified as follows. Approximately two weeks before he and another police officer initiated the knock and talk encounter with defendant, Compeau received a tip that defendant was storing marijuana at his residence. On several occasions during the intervening weeks, he conducted surveillance of defendant, but never observed anything that supported the tip. On the date of the incident, April 16, 2001, Compeau, along with four other police officers, went to defendant's residence at approximately 7:00 p.m. to conduct the knock and talk procedure.

At defendant's residence, Compeau and one other officer approached the front door and defendant admitted them into his residence. Just inside the front door, a three to four minute encounter took place between defendant and the officers, with Compeau apparently doing all of the talking for the two officers. Compeau informed defendant, who was initially upset by the presence of the officers, but soon calmed down and became "gentleman[ly]," that they were police officers and that they had received a tip that marijuana was stored at his residence. Although defendant did not deny having marijuana, he "said no" to Compeau's request for permission to search the home. When questioned regarding whether defendant asked them to leave, Compeau responded, "He certainly did, yes." Compeau further related that "[defendant] put his hands up, and I said don't—don't touch me, [sic] and that's the time we started talking about the money."

Compeau initiated the conversation concerning money after defendant denied the officers consent to search and instructed them to leave both orally and by gesture directed at Compeau's person. The topic of money arose when Compeau asked defendant about the large bulge in defendant's rear pocket. While Compeau could not articulate when he first observed the bulge, he stated that he may have noticed it when he was conducting a pat-down search of defendant's person around the waist area for weapons "to protect myself" and because "[i]t's good police procedure and safety." However, Compeau also stated that nothing from the tip, his surveillance, or defendant's conduct at his residence gave Compeau reason to suspect that defendant would be armed with a weapon.

When Compeau asked defendant what was causing the large bulge in his rear pocket, defendant responded that he had sold a car that day for $6,500 and he offered to take Compeau to his car lot to verify the sale. Defendant rode to the car lot with Compeau and, once there, defendant was unable to verify that he sold a car that day. Eventually, defendant admitted having marijuana and took the officers back to his residence, where he opened his freezer, retrieved nine bags of marijuana that weighed 3.7 pounds, and gave them to the police. Defendant voluntarily went to the police station with Compeau while other officers remained at defendant's house to conduct a more thorough search. While at the station, and without being advised of his Miranda⁴ rights, defendant gave a tape-recorded statement⁵ and later signed a consent to search form.⁶

Defendant was charged with possession with intent to deliver marijuana, M.C.L. § 333.7401(2)(d)(iii). At the preliminary examination, the district court dismissed the charge, finding that defendant's self-incriminating statements and the marijuana were obtained after police officers improperly failed to leave defendant's house. Specifically, the district court found that defendant denied permission to search and directed the officers both orally and by gesture to leave. Thereafter, by continuing to question defendant about the large bulge in his rear pocket, Compeau's conduct was inherently coercive because he was using an "indirect offer of force" and indicating that he was not leaving until "I get the information I want." Thus, the district court entered an order of dismissal of the charge against defendant.

The prosecution appealed the district court's order of dismissal to the circuit court, which affirmed the district court's order. The prosecution then filed with this Court a delayed application for leave to appeal the circuit court's order. This Court denied the prosecution's application "for lack of merit in the grounds presented." People v. Bolduc, unpublished order of the Court of Appeals, entered June 17, 2002 (Docket No. 241103). The prosecution then sought leave to appeal in the Supreme Court. As previously stated, in lieu of granting leave to appeal, our Supreme Court issued an order remanding the case to this Court for consideration as on leave granted. 467 Mich. 900, 654 N.W.2d 330.

II. Standard of Review

In Frohriep, supra at 702, 637 N.W.2d 562, we stated the standard of review when considering a trial court's ruling on a motion to suppress evidence:

We review a trial court's findings of fact for clear error, giving deference to the trial court's resolution of factual issues. People v. Farrow, 461 Mich. 202, 208-209, 600 N.W.2d 634 (1999), quoting People v. Burrell, 417 Mich. 439, 448-449, 339 N.W.2d 403 (1983). "A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made." People v. Swirles (After Remand), 218 Mich.App. 133, 136, 553 N.W.2d 357 (1996). We overstep our review function if we substitute our judgment for that of the trial court and make independent findings. Farrow, supra at 209, 600 N.W.2d 634. However, we review de novo the trial court's ultimate decision on a motion to suppress. People v. Williams, 240 Mich. App. 316, 319, 614 N.W.2d 647 (2000).

III. Law

While this Court held in Frohriep, supra at 697-698, 637 N.W.2d 562, that the knock and talk procedure is not unconstitutional per se, we noted that it is not without constitutional implications. Specifically, this Court stated that "a person's Fourth Amendment right to be free of unreasonable searches and seizures may be implicated where a person, under particular circumstances, does not feel free to leave or where consent to search is coerced." Id. at 698, 637 N.W.2d 562.

Both U.S. Const., Am. IV⁷ and

Const. 1963, art. 1, § 11⁸ guarantee the right against unreasonable searches and seizures.⁹ See also Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001); People v. Kazmierczak, 461 Mich. 411, 417, 605 N.W.2d 667 (2000). In Frohriep, supra at 699-700, 637 N.W.2d 562, we explained:

The Fourth Amendment protects people from unreasonable searches and seizures. People v. Faucett, 442 Mich. 153, 157-158, 499 N.W.2d 764 (1993). Stated another way, "[t]he lawfulness of a search or seizure depends on its reasonableness." [People v.] Snider, [239 Mich.App. 393,] 406 [ 608 N.W.2d 502 (2000)]. Our Supreme Court has explained that "[t]he reasonableness of a Fourth Amendment seizure balances the governmental interest that justifies the intrusion against an individual's right to be free of arbitrary police interference." Faucett, supra at 158, 499 N.W.2d 764.

In order for any police procedure to have constitutional search and seizure implications, a search or seizure must have taken place. U.S. Const., Am. IV; Const. 1963, art. 1, § 11; United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.); see also Florida v.

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