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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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The Court of Appeals, on remand from the Supreme Court, considered the limited question of whether the “knock-and-talk” procedures utilized by narcotics officers in a pot bust amounted to a “search” within the meaning of the Fourth Amendment.  In the consolidated cases, <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20151208_C323642_52_323642.PDF" target="_blank" rel="noreferrer noopener">People v. Frederick</a> (Case No. 323642) and <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20151208_C323642_52_323642.PDF" target="_blank" rel="noreferrer noopener">People v. Van Doorne</a> (Case No. 323643), seven members of the Kent Area Narcotics Enforcement Team arrived at the separate homes of two former corrections officers at about 4 and 5 A.M., based on information that the defendants had received marijuana butter.  After being invited inside and conducting a search of their homes, officers recovered the marijuana butter and charged the two men with various controlled substances offenses.  Both filed motions to suppress the evidence, arguing that the knock-and-talk procedures violated the Fourth Amendment under Florida v. Jardines, 133 S. Ct. 1409 (2013).  The Court of Appeals disagreed, finding that the knock-and-talk was not a “search,” as defined in Jardines.

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In Jardines, the U.S. Supreme Court considered whether approaching a home believed to be used for growing marijuana with a drug-sniffing dog was a “search.”&nbsp; The Court found that there is an implied-license for visitors to approach a home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.&nbsp; Thus, a police officer not armed with a warrant may approach a home and knock, as any private citizen may do.&nbsp; However, the scope of the license is limited, and certain circumstances (such as the purpose of the visit) may transform an otherwise lawful entrance onto private property into an unlawful, warrantless search.&nbsp; As such, defendants argued that the officers’ purpose for conducting the knock-and-talk—to conduct a search rather than to speak with them—compels a conclusion that the knock-and-talk was a search.&nbsp; The Court of Appeals found that if police enter a protected area not intending to speak with the occupant, but rather, solely to conduct a search, the line has been crossed.&nbsp; For example, where officers searched for evidence without ever speaking to the occupants of the home; where officers’ conduct an hour-long investigation of the property before requesting consent to do so; and where officers have no reason to step foot on the property other than to arrest its occupant.&nbsp; However, police do not violate the Fourth Amendment by approaching a home and seeking to speak with its occupant, even if the motive for that contact is to acquire information or evidence as a result of this conversation.&nbsp;

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Defendants also argued that the habits of this country do not allow uninvited visits in the early morning hours, absent some indication that the person accepts visitors at that hour or, where it is clearly observed that someone is awake in the home.&nbsp; The Court of Appeals held that while the time of a visit by police officers may be relevant when evaluating the constitutional validity of a knock and talk, Jardines does not adopt any sort of bright-line rule on this factor.&nbsp; Thus, it is not simply that officers enter the premises in the early hours of the morning that creates the constitutional problem. Rather, it is when officers use the “cover of darkness” to conduct a “clandestine intrusion” of the property where they exceed the scope of any implied invitation.

The <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20151208_C323642_53_323642D.OPN.PDF" target="_blank" rel="noreferrer noopener">dissent</a> opined that the majority improperly limited the inquiry to whether the knock and talk procedures utilized in the present cases amounted to a search.  The focus, rather, should be whether the search conducted here, based on all the circumstances, stayed within the constitutional limitations of a knock-and-talk procedure.  Based on the time of the interrogations and the fact that the suspects were questioned by superior officers, the dissent believed that the defendants’ Fourth Amendment rights were violated.

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Madelaine C. Lane

Labor and Employment

Officers’ motive for a knock-and-talk of import in determining whether a “search” has occurred

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Officers’ motive for a knock-and-talk of import in determining whether a “search” has occurred

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