People v. Frederick

• Decision Date: 01 June 2017
• Docket Number: No. 153115, No. 153117,153115
• Citation: 895 N.W.2d 541
• Parties: PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Michael Christopher FREDERICK, Defendant–Appellant. People of the State of Michigan, Plaintiff–Appellee, v. Todd Randolph Van Doorne, Defendant–Appellant.
• Court: Michigan Supreme Court

895 N.W.2d 541

PEOPLE of the State of Michigan, Plaintiff–Appellee,

v.Michael Christopher FREDERICK, Defendant–Appellant.

People of the State of Michigan, Plaintiff–Appellee,

v.Todd Randolph Van Doorne, Defendant–Appellant.

No. 153115

No. 153117

Supreme Court of Michigan.

Argued March 9, 2017

Decided June 1, 2017

OPINION

McCormack, J.

In these consolidated cases, we consider the constitutionality of two early morning searches of the defendants' homes. We conclude that the police conduct in both cases was unconstitutional; these were not permissible "knock and talks," but rather warrantless searches. Because of these illegal searches, the defendants' consent to search—even if voluntary—is invalid unless it is sufficiently attenuated from the illegality. Accordingly, we reverse the Court of Appeals' contrary determination and remand these cases to the Kent Circuit Court for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

During the predawn hours on March 18, 2014, seven officers from the Kent Area Narcotics Enforcement Team (KANET) made unscheduled visits to the defendants' homes. Both defendants were employees of the corrections division of the Kent County Sheriff Department. Their names had come up in a criminal investigation, and KANET decided to perform these early morning visits to the defendants' homes rather than waiting until daytime to speak with the defendants (or seeking search warrants). KANET knocked on defendant Michael Frederick's door around 4:00 a.m. and on defendant Todd Van Doorne's door around 5:30 a.m. Lieutenant Al Roetman, who was present at both searches, testified that everyone appeared to be asleep at both houses.

Both defendants and their families were surprised and alarmed by the intrusions. Van Doorne considered arming himself, as did Frederick's wife. Nonetheless, both defendants answered the door after a few minutes of knocking—each thinking that there must have been some sort of emergency.

Instead, each defendant found himself confronted with a group of police officers. The officers asked each defendant about marijuana butter that they suspected the defendants possessed. After a conversation with each defendant, during which the defendants were read their Miranda¹ rights, both defendants consented to a search of their homes and signed a consent form to that effect. Marijuana butter and other marijuana products were recovered from each house.

The defendants were charged with various drug offenses. Both moved to suppress evidence of the marijuana products found in their homes. The trial court denied both motions. The court concluded that KANET had not conducted a search by approaching the home and knocking, and that the subsequent consent search was a valid, voluntary search. The court distinguished Florida v. Jardines , 569 U.S. ––––, ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), noting that the police here did not use a drug-sniffing dog or otherwise try to search the home without knocking. Rather, because the police approached the home and knocked, the trial court held that these were valid knock and talks.

The defendants sought interlocutory leave to appeal, which the Court of Appeals denied. The defendants then sought leave to appeal in this Court. In lieu of granting leave to appeal, we remanded the cases to the Court of Appeals for consideration as on leave granted. People v. Frederick , 497 Mich. 993, 861 N.W.2d 286 (2015) ; People v. Van Doorne , 497 Mich. 993, 861 N.W.2d 286 (2015). We directed the Court of Appeals to address "whether the ‘knock and talk’ procedure conducted in [these cases] is consistent with U.S. Const., Am. IV, as articulated in Florida v. Jardines.... " Frederick , 497 Mich. 993, 861 N.W.2d 286 ; Van Doorne , 497 Mich. 993, 861 N.W.2d 286.

On remand, the Court of Appeals issued a split opinion. The majority concluded that the knock and talk procedures at issue were permitted by the Fourth Amendment. People v. Frederick , 313 Mich.App. 457, 461, 886 N.W.2d 1 (2015). The majority emphasized that the officers approached the home, knocked, and waited to be received, and " Jardines plainly condones such conduct." Id . at 469, 886 N.W.2d 1. Though the police visits here occurred during the early morning hours, the majority concluded that they were nonetheless within the scope of the implied license because homeowners would be unsurprised to find a predawn visitor delivering a newspaper or seeking emergency assistance. Id . at 481, 886 N.W.2d 1.

Judge SERVITTO dissented. She concluded that the police conduct violated the defendants' Fourth Amendment rights. Id . at 496, 886 N.W.2d 1 ( SERVITTO , J., dissenting). First, Judge SERVITTO noted that the Jardines majority and dissent had seemed to agree, in dicta, that nighttime visits would be outside the scope of the implied license. Id . at 487–488, 886 N.W.2d 1. Further, Judge SERVITTO reasoned that the validity of a knock and talk is premised on "the implied license a homeowner extends to the public-at-large." Id . at 496, 886 N.W.2d 1. Because the hours the police arrived at the defendants' homes are not times at which most homeowners expect visitors, she concluded that the visits were outside the scope of a proper knock and talk. Id .

II. ANALYSIS

In general, a search or seizure within a home or its curtilage without a warrant is per se an unreasonable search under the Fourth Amendment. People v. Champion , 452 Mich. 92, 98, 549 N.W.2d 849 (1996) ; Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Two arguments have been presented as to why this police conduct was lawful. First, the prosecution argues that the initial approach was a knock and talk, not a search. Second, the prosecution argues that the search that followed that initial approach was a consent search.

A. KNOCK AND TALK

A "knock and talk," when performed within its proper scope, is not a search at all. Jardines , 569 U.S. at ––––, 133 S.Ct. at 1415. The proper scope of a knock and talk is determined by the "implied license" that is granted to "solicitors, hawkers, and peddlers of all kinds." Id . at ––––, 133 S.Ct. at 1415 (citation and quotation marks omitted). "Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is ‘no more than any private citizen might do.’ " Id . at ––––, 133 S.Ct. at 1416, quoting Kentucky v. King , 563 U.S. 452, 469, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011).

In Jardines , the police approached a house via the front walk with a drug dog. Jardines , 569 U.S. at ––––, 133 S.Ct. at 1413. The dog alerted, indicating that it smelled contraband, and eventually sat at the front door of the home, where the odor was strongest. Id . Using this information, the police obtained a warrant, and their search of the home revealed marijuana plants. Id .

Justice Scalia, writing for the Court, employed a property-rights framework² to conclude that the prewarrant conduct of the police constituted a search. The Court distinguished the case from King , in which the Court had held that a knock and talk was not a search, because the police in Jardines , unlike the police in King , had trespassed; although the public, and thus the police, generally have an implied license to "approach the door by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave," the police in Jardines had not complied with the scope of that implied license. Id . at ––––, 133 S.Ct. at 1415–1416. "[I]ntroducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that ." Id . at ––––,133 S.Ct. at 1416. Thus, the police had trespassed on Fourth-Amendment-protected property.³ Id .

Consistently with United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), the Jardines Court required not only a trespass, but also some attempted information-gathering, to find that a search had occurred. Jardines , 569 U.S. at ––––, 133 S.Ct. at 1414 ; Jones , 565 U.S. at 408 n. 5, 132 S.Ct. 945 ("[P]ost–Katz we have explained that an actual trespass is neither necessary nor sufficient to establish a constitutional violation.... Trespass alone does not qualify [as a search], but there must be conjoined with that ... an attempt to find something or to obtain information.") (citations and quotation marks omitted). The Jardines Court concluded that the police conduct there included information-gathering, such that the behavior constituted a warrantless search of the curtilage. Jardines , 569 U.S. at ––––, 133 S.Ct. at 1417.

It is also clear from Jones and Jardines that "information-gathering" is not synonymous with a Fourth Amendment "search." Both Jones and Jardines held that conduct that would not amount to a search, standing alone, was nonetheless information-gathering. The information-gathering in Jardines was the use of a drug-sniffing dog—conduct that the Supreme Court of the United States has held is not a search when the police have not trespassed. Id . at ––––, 133 S.Ct. at 1414 ; Illinois v. Caballes , 543 U.S. 405, 410, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (holding that a dog sniff conducted during a lawful traffic stop did not implicate legitimate privacy interests). Similarly, in Jones , the information-gathering was the tracking of the defendant's location on public streets—conduct that the Supreme Court has also held is not a search when the police have not trespassed. Jones , 565 U.S. at 408 n. 5, 132 S.Ct. 945 ; United States v. Knotts , 460 U.S. 276, 285, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (holding that a person traveling in an automobile on public roads has no reasonable expectation of privacy in his or her location). But information-gathering that is not a search nevertheless becomes a search when it is combined with a trespass on Fourth-Amendment-protected property.⁴

In Jardines , the majority and dissenting opinions address in...