Police ‘Knock-and-Talk’ Procedure Upheld by Michigan Appeals Court

A “knock-and-talk” procedure used by law enforcement, which led to a search of the defendants’ homes and the seizure of marijuana butter, did not violate the defendants’ constitutional rights, the Michigan Court of Appeals has ruled in a 2-1 decision.

In People v. Frederick and People v. Van Doorne, the defendants had medical marijuana cards and had obtained marijuana butter. When executing a search warrant at the defendants’ homes, narcotics officers knocked, waited a few minutes and when the defendants answered the door, asked to search their homes. The defendants allowed the officers inside and marijuana butter was found. The defendants were charged with various controlled substances offenses. They filed motions to suppress the evidence obtained from the searches, asserting two arguments for suppression: 1) their consent was involuntary, and 2) the knock-and-talk procedure violated the Fourth Amendment under Florida v Jardines, ___ US ___ (2013). The Kent County Circuit Court denied the defendants’ motions, finding the knock-and-talk procedures did not violate the Fourth Amendment. The Court of Appeals denied the defendants’ appeals. On further appeal to the Michigan Supreme Court, the high court remanded both cases, instructing the Court of Appeals to determine whether the knock-and-talk procedures were constitutional.

The Court of Appeals, in a published decision, ruled that the knock-and-talk procedures were appropriate and did not infringe on the defendants’ Fourth Amendment rights to “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ….” In so holding, the court relied on the U.S. Supreme Court’s decision in Jardines, which held that a dog sniff at the front door of a house where the police suspected drugs constituted a search for purposes of the Fourth Amendment.

Applying the Jardines framework, the Court of Appeals said the knock-and-talk procedures used in this case were not “searches” within the meaning of the Fourth Amendment. The court wrote: “… Jardines explains that there exists ‘an implicit license … to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.’ And, generally speaking, that is exactly what occurred in both cases now before us. In each instance, officers approached the home, knocked, and waited to be received. And in each instance, the officers were received by the homeowners. Jardines plainly condones such conduct.”

To find a Fourth Amendment violation, the Court of Appeals explained there has to be circumstances that transform an otherwise lawful entrance onto private property into an unlawful, warrantless search. Here, the defendants claimed that the time of the knocks and talks — the early morning hours — and the manner in which the officers approached — wearing tactical gear — showed that the knocks and talks were really Fourth Amendment searches.

The Court of Appeals rejected the defendants’ arguments, for the following reasons.

Officers’ Purpose Was to Talk

The purpose for the officers coming to the defendants’ homes was to talk to them, the Court of Appeals said. “That an officer intends to obtain information from the occupant does not transform a knock and talk into an unconstitutional search. … [O]ne entirely acceptable purpose of a knock and talk is to do exactly what the officers did in these cases — obtain an occupant’s consent to conduct a search ….”

Moreover, police “do not violate the Fourth Amendment by approaching a home and seeking to speak with its occupant,” the Court of Appeals wrote. “Even if police fully intend to acquire information or evidence as a result of this conversation, the line has not been crossed.”

Here, the officers’ intent was demonstrated by their conduct at each home, the Court of Appeals said. “As in any ordinary knock and talk, the officers approached each home, knocked, and waited for a response. … Both men were provided their Miranda rights and asked to voluntarily consent to a search. The officers made no attempt to search for evidence until obtaining consent to do so. That the officers proceeded in this manner clearly demonstrates that it was their intent to speak with each individual and obtain their consent before proceeding any further.”

Timing Doesn’t Matter

The Court of Appeals also rejected the defendants’ argument that the timing of the visits — the early morning hours — exceeded the scope of the implied license to enter their property.

“[W]e do not read Jardines as adopting any sort of bright-line rule that prohibits officers from entering an area protected by the Fourth Amendment at certain times of day,” the court wrote. “Thus, it is not simply the presence of a person at a particular time, but rather, the reaction that a typical person would have to that individual’s presence, that determines whether the scope of the implied license has been exceeded.”

In this case, the officers “did not furtively approach either home; the officers walked

directly to the homes and knocked,” the Court of Appeals said. “There was nothing clandestine about their behavior. And rather than refuse to come to the door or call the police, both [defendants] answered the door and spoke with the officers. … Thus, although the officers visited the homes in the early hours of the morning, under the circumstances of these cases, that fact does not render the knock and talks unconstitutional.”

Community Standards Not Violated

The Court of Appeals further rejected the defendants’ claims that the officers did not follow community standards by “incessantly” pounding on their doors until there was an answer. “The record simply does not support these factual assertions,” the court said.

Accordingly, “we conclude that the knock-and-talk procedures conducted with respect to both [defendants] were consistent with the Fourth Amendment,” the Court of Appeals wrote.

Chief Judge Michael J. Talbot wrote the opinion, joined by Judge Kirsten Frank Kelly. Judge Deborah A. Servitto issued a separate dissenting opinion.

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