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June 13, 2016

Don't step over that line: MSC to consider when knock-and-talk amounts to unconstitutional search

In the consolidated cases, People v. Frederick (No. 153115) and People v. Van Doorne (No. 153117), the Michigan Supreme Court will consider when a “knock-and-talk” instigated by police officers amounts to a “search” within the meaning of the Fourth Amendment.  Here, based on information that the defendants had received marijuana butter, officers appeared at defendants’ homes at 4 and 5 AM.  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.  The Supreme Court has granted mini-oral argument on the application for leave to appeal to consider whether officers’ actions during this “knock-and-talk” exceeded the general public’s implied-license to approach a home, and therefore was unconstitutional under the Fourth Amendment.   The Court also asked the parties to brief whether the officers’ conduct during this knock-and-talk indicates that they were not intending to speak with the occupant but, rather, that their purpose was to conduct a warrantless search.  The Court of Appeals previously concluded in this case that 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.

Defendants are two former members of the Kent County Sheriff’s Department. After their arrest, both defendants 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. 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.”  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.  Thus, a police officer not armed with a warrant may approach a home and knock, as any private citizen may do.  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.  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.  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.  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.  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. 

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