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People v. Frederick

Supreme Court of Michigan

June 1, 2017

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. BEFORE THE ENTIRE BENCH

          Argued on application for leave to appeal March 9, 2017.

          Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder

         Syllabus

         Michael Frederick and Todd Van Doorne were separately charged in the Kent Circuit Court with various drug offenses after seven officers from the Kent Area Narcotics Enforcement Team made unscheduled visits to the defendants' respective homes during the predawn hours on March 18, 2014. Officers knocked on Frederick's door around 4:00 a.m. and on Van Doorne's door around 5:30 a.m. Officers woke defendants and their families for the purpose of questioning each defendant about marijuana butter that they suspected the defendants possessed. Both defendants subsequently consented to a search of their respective homes, and marijuana butter and other marijuana products were recovered from each home. Defendants moved to suppress the evidence, and the court, Dennis B. Leiber, J., denied both motions, concluding that the officers had not conducted a search by knocking on defendants' doors during the predawn hours and that the subsequent consent searches were valid. Defendants sought interlocutory leave to appeal, which the Court of Appeals denied in separate unpublished orders, entered October 15, 2014 (Docket Nos. 323642 and 323643). Defendants sought leave to appeal in the Supreme Court. The Supreme Court, in lieu of granting leave to appeal, remanded the cases to the Court of Appeals for consideration as on leave granted and directed the Court of Appeals to address whether the "knock and talk" procedure conducted in these cases was consistent with the Fourth Amendment as articulated in Florida v Jardines, 569 U.S.; 133 S.Ct. 1409 (2013). People v Frederick, 497 Mich. 993 (2015); People v Van Doorne, 497 Mich. 993 (2015). The Court of Appeals consolidated the two cases and issued a split opinion. 313 Mich.App. 457 (2015). The majority concluded that the officers' predawn "knock and talk" visits were within the scope of the public's implied license because homeowners would be unsurprised to find a predawn visitor delivering a newspaper or seeking emergency assistance, but the dissenting judge concluded that the police conduct violated the Fourth Amendment because the searches, which occurred during hours at which a homeowner would not expect visitors, were outside the scope of a proper knock and talk procedure. Defendants sought leave to appeal, and the Supreme Court ordered and heard oral argument on whether to grant the application or take other action. 499 Mich. 952 (2016).

         In a unanimous opinion by Justice McCormack, in lieu of granting leave to appeal, the Supreme Court held:

         The scope of the implied license to approach a house and knock is time-sensitive; it generally does not extend to predawn approaches. While approaching a home with the purpose of gathering information is not, standing alone, a Fourth Amendment search, when information-gathering is conjoined with a trespass, a Fourth Amendment search has occurred. In these cases, the police conduct exceeded the scope of the implied license to knock and talk because the officers approached the defendants' respective homes during the predawn hours; therefore, the officers trespassed on Fourth-Amendment-protected property. And because the officers trespassed while seeking information, they performed searches in violation of the Fourth Amendment.

         1. The proper scope of a knock and talk is determined by the implied license that is granted to the general public. Therefore, 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. When police officers stray beyond what any private citizen might do, they have strayed beyond the bounds of a permissible knock and talk; in other words, the officers are trespassing. Just as there is no implied license to bring a drug-sniffing dog to someone's front porch, there is generally no implied license to knock at someone's door in the middle of the night. Background social norms that invite a visitor to the front door typically do not extend to a visit in the middle of the night. Accordingly, the scope of the implied license to approach a house and knock is time-sensitive; it generally does not extend to predawn approaches. Additionally, while approaching a home with the purpose of gathering information is not, standing alone, a Fourth Amendment search, when information-gathering is conjoined with a trespass, a Fourth Amendment search has occurred. In these cases, the police officers exceeded the scope of the implied license to knock and talk because the officers approached defendants' respective homes without warrants during the predawn hours; therefore, the officers trespassed on Fourth-Amendment-protected property. And because the officers trespassed while seeking information about defendants' alleged possession of marijuana butter, they performed searches in violation of the Fourth Amendment.

         2. Consent searches, when voluntary, are an exception to the warrant requirement. The voluntariness question turns on whether a reasonable person would, under the totality of the circumstances, feel able to choose whether to consent. Evidence obtained through an illegal search or seizure is tainted by that initial illegality unless sufficiently attenuated from it. Thus, even when consent is voluntary, if it is not attenuated from the unconstitutional search, the evidence must be suppressed. Three factors are considered in determining whether consent is sufficiently attenuated: (1) the temporal proximity of the illegal act and the alleged consent, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. In these cases, because the trial court determined that there was no Fourth Amendment violation, it did not consider whether the subsequent consent was attenuated from the illegality. Therefore, the cases had to be remanded to the trial court for consideration of that question in the first instance.

         Reversed and remanded to the Kent Circuit Court to determine whether defendants' consent to search was attenuated from the officers' illegal search.

          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 Miranda[1] 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 ...


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