People v. Frohriep
Decision Date | 28 December 2001 |
Docket Number | Docket No. 223755. |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Eugene FROHRIEP, Defendant-Appellant. |
Court | Court of Appeal of Michigan — District of US |
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey C. Middleton, Prosecuting Attorney, Frank J. Machnik, Special Assistant Prosecutor, for the people.
Joseph J. Jerkins, Kalamazoo, for the defendant.
Before: COLLINS, P.J., and HOEKSTRA and GAGE, JJ.
After a bench trial, the trial court convicted defendant of possession with intent to deliver marijuana, M.C.L. § 333.7401(2)(d)(iii), and sentenced him to serve six months in jail.1 On appeal as of right, defendant challenges the constitutionality of the police technique and of the search that yielded the evidence used to convict him. Defendant argues that the "knock and talk" procedure that the police employed is unconstitutional, and even if it is not, the search was unreasonable because defendant did not give consent. We affirm.
Before trial, the trial court heard defendant's motion to suppress the evidence that the police seized after approaching defendant on his property and asking to "look around." At the suppression hearing, the police officers involved in the investigation and defendant testified.2 The officers' testimony revealed that they had information that defendant may have had controlled substances on his property. Because the information was not sufficient to obtain a search warrant, they opted to employ a knock and talk procedure. The officers described the procedure as one where they go to a suspect's residence, engage the individual in a conversation, and attempt to obtain consent to conduct a search.
In this case, the officers went to defendant's residence and two of them encountered defendant in an open area near a pole barn. The two officers identified themselves, told defendant that they had information that defendant might have controlled substances on his property, and requested permission to conduct a search. Exactly how the officer phrased the request and what level of consent defendant gave were disputed at the hearing. However, it was not disputed that after this initial encounter the officers entered the pole barn and one officer looked around while the other officer remained with defendant to obtain some additional background information. A few minutes later, the officer looking around the pole barn yelled, "Bingo." Defendant and the other officers went to where that officer was searching and saw that he had located in a freezer what appeared to be several pounds of marijuana. Defendant stated that the marijuana was for his personal use. Next, one of the officers said to defendant that he wanted to look in a trailer. Defendant indicated that it was locked and he would have to get the key. After defendant retrieved the key, the officer entered the trailer and discovered scales. Defendant indicated that the scales were used for weighing marijuana. At that point, defendant said something to the effect of "Wait, wait, just a minute," and the officers stopped the search. Then, one of the officers drafted a written consent to search form and presented it to defendant, but he refused to sign it. Thereafter, the officers obtained a search warrant on the basis of what they had observed before defendant stopped the search.
Months after the hearing, the trial court issued a lengthy written opinion denying defendant's motion to suppress. The trial court declined defendant's invitation to hold that the knock and talk procedure that the police used was unconstitutional. Further, the trial court held that defendant had consented to the search as conducted by the police officers. In its ruling, the trial court made extensive findings regarding the disputed factual issues. The trial court found that defendant's consent was voluntary, not coerced, that defendant placed no limitation on the scope of the search, and that the knock and talk procedure was neither abusive per se nor inherently unconstitutional. Thereafter, defendant waived his right to a jury trial. Following a bench trial, defendant was convicted of possession with intent to deliver marijuana.
On appeal, defendant first challenges the trial court's ruling that the knock and talk procedure that the police used in this case is constitutional. Initially, we note that defendant does not specify whether his challenge to the constitutionality of the knock and talk procedure is under the Michigan Constitution or the United States Constitution. However, this lack of information does not affect our analysis. "Both the United States and the Michigan Constitutions guarantee the right against unreasonable searches and seizures." People v. Snider, 239 Mich. App. 393, 406, 608 N.W.2d 502 (2000), citing U.S. Const., Am. IV, Const. 1963, art. 1, § 11, and In re Forfeiture of $176,598, 443 Mich. 261, 264-265, 505 N.W.2d 201 (1993); see also People v. Kazmierczak, 461 Mich. 411, 417, 605 N.W.2d 667 (2000). Absent a compelling reason to impose a different interpretation, the Michigan Constitution is construed to provide the same protection as that secured by the Fourth Amendment. People v. Levine, 461 Mich. 172, 178, 600 N.W.2d 622 (1999). We review constitutional questions de novo. People v. Conat, 238 Mich.App. 134, 144, 605 N.W.2d 49 (1999).
Defendant frames his argument challenging the constitutionality of the knock and talk procedure by comparing this investigative tool to other areas of search and seizure law and by making policy arguments, all with a view toward undermining the reasonableness of allowing the police to utilize this technique. In particular, defendant argues that the special sanctity of the home and the lack of established procedures renders any knock and talk investigation unreasonable. We find these arguments unpersuasive because none of them addresses the use of this investigative procedure within a proper constitutional framework.3
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. See, e.g., United States v. Hardeman, 36 F.Supp.2d 770, 777 (E.D.Mich., 1999); State v. Smith, 346 N.C. 794, 796, 488 S.E.2d 210 (1997); United States v. Zertuche-Tobias, 953 F.Supp. 803, 829 (S.D.Tex., 1996). From our research, it appears that Michigan appellate courts have not addressed the constitutionality of police use of the knock and talk procedure.
We decline defendant's request to hold that the knock and talk procedure is unconstitutional because defendant points to no binding precedent, nor have we found any, prohibiting the police from going to a residence and engaging in a conversation with a person. See People v. Davis, 241 Mich.App. 697, 700, 617 N.W.2d 381 (2000); more specifically, see State v. Ferrier, 136 Wash.2d 103, 109-110, 960 P.2d 927 (1998); Zertuche-Tobias, supra.
We conclude that in the context of knock and talk the mere fact that the officers initiated contact with a citizen does not implicate constitutional protections. It is unreasonable to think that simply because one is at home that they are free from having the police come to their house and initiate a conversation. The fact that the motive for the contact is an attempt to secure permission to conduct a search does not change that reasoning. We find nothing within a constitutional framework that would preclude the police from setting the process in motion by initiating contact and, consequently, we hold that the knock and talk tactic employed by the police in this case is constitutional.4
That is not to say, however, that the knock and talk procedure is without constitutional implications. Anytime the police initiate a procedure, whether by search warrant or otherwise, the particular circumstances are subject to judicial review to ensure compliance with general constitutional protections. Accordingly, what happens within the context of a knock and talk contact and any resulting search is certainly subject to judicial review. For example, 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. Thus, whenever the procedure is utilized, ordinary rules that govern police conduct must be applied to the circumstances of the particular case. Consequently, we review the circumstances of this case against general protections guaranteed by the constitution.
The Fourth Amendment protects people from unreasonable searches and seizures.5 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." Snider, supra at 406, 608 N.W.2d 502. 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. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion)....
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