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June 09, 2017

MSC: Police “knock and talk” conducted during predawn hours in order to gather information is search subject to Fourth Amendment warrant requirement

A predawn, warrantless “knock and talk” conducted by police officers constitutes a trespass, as it exceeds the scope of the implied license granted to the general public, said the Michigan Supreme Court in the consolidated cases of People v Frederick, No. 153115 and People v Van Doorne, No. 153117. Under certain circumstances, a “knock and talk” does not constitute a search under the Fourth Amendment, because a police officer is merely doing what custom permits a private citizen to do. According to Florida v Jardines, 133 S Ct 1409 (2013), a “knock and talk” becomes a trespass when the officer’s actions exceed the scope of the implied license granted to the general public. When combined with the purpose of gathering information, this trespass becomes a search subject to the warrant requirement under the Fourth Amendment.

In Frederick and Van Doorne, police officers made unscheduled visits to the defendants’ homes during predawn hours, around 4:00 a.m. and 5:30 a.m. Although alarmed by these early morning knocks, both defendants opened their doors and later consented to a search of their homes. The officers found marijuana products in each house. Finding that the officers in each case had conducted a valid “knock and talk” and subsequent consent search, the trial court denied the defendants’ motions to suppress this evidence. The Court of Appeals, agreeing with the trial court, concluded that the predawn visits were within the scope of what the general public could do. Thus, the “knock and talk” procedures were permitted by the Fourth Amendment.

The Michigan Supreme Court disagreed, holding that the general public does not hold an implied license to knock on an individual’s door in the middle of the night. This includes predawn hours, during which a homeowner would generally not expect someone at their door. Therefore, as a general rule, a police officer may not approach an individual’s home and knock in the middle of the night in order to gather information without a warrant. The Court held that this made the officers’ conduct a trespass and an unlawful Fourth Amendment search, as the officers’ purpose was to gather information about the defendants’ alleged possession of marijuana. Finding that a Fourth Amendment violation occurred, the Michigan Supreme Court remanded the cases to determine whether the subsequent consent by defendants, even if voluntary, was sufficiently attenuated from the warrantless, unconstitutional searches, such that an exception to the warrant requirement existed.

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