“Doors in the interior” by Dmitry Grigoriev is licensed under CC BY-NC-ND 4.0
John Simon, Blog Editor, University of Cincinnati Law Review
I. Introduction
In recent history, the Supreme Court has averaged 7,000-8,000 new petitions annually.[1] Of those new cases filed, approximately 80 receive plenary review with oral arguments heard before the Court. [2] On June 3, 2019, the State of Michigan submitted a petition for a writ of certiorari to have a Fourth Amendment case heard by the Justices.[3] The case of Michigan v. Frederick, which has an extensive legal history stretching back to 2012, asks the Court to clarify the limits that apply to law enforcement’s use of knock-and-talk procedures when attempting to conduct a warrantless search.[4] This article examines Supreme Court precedent regarding knock-and-talk procedures, Michigan’s disputed case, and the constitutional implications which might stem from the Supreme Court’s decision to grant or deny cert.
II. Background
While not directly on point with the issue of knock-and-talk procedures, the Supreme Court provided a glimpse into the Fourth Amendment analysis that shapes such encounters in Kentucky v. King.[5] In that case, police officers set up a controlled purchase of crack-cocaine outside an apartment complex in Lexington, Kentucky.[6] An officer observed the drug transaction and immediately radioed to other officers to move in on the suspect who was walking inside.[7] Just before officers arrived, the suspect went into an apartment. The officers then heard a door shut, but were uncertain which unit the suspect entered.[8] Smelling marijuana coming from one of the apartments, the police decided to approach that door.[9] They knocked on the door and announced to the occupants that it was the police.[10] Hearing rustling and movement on the inside, the officers believed that drug evidence was being destroyed.[11] At that point, they kicked in the door and found three occupants with marijuana and cocaine.[12]
King, one of the occupants, challenged his charges based on an alleged Fourth Amendment violation.[13] The case made its way to the Supreme Court after the Kentucky Supreme Court held that the police created an exigency prior to entering the apartment in violation of the Fourth Amendment.[14]
The Supreme Court ultimately reversed, finding that the police had not created an exigency or threatened to violate the Fourth Amendment prior to entering the apartment.[15] While the decision rested upon the exigent circumstance exception to the Fourth Amendment, the Court seemingly found support for the premise that the police did not create an exigency by looking at the implied license theory. The Court noted that when law enforcement officers knock on a door without a warrant, they are acting within the bounds of normal, private citizens; as such, the occupant has no obligation to open his door or to talk.[16] The Court further wrote that the choice to open the door and speak to police does not require occupants to let the police in, and that the occupants still have the freedom to refuse to answer questions at any time.[17]
Two years after the King case, the Court yet again invoked the implied license theory approving the law enforcement’s use of knock-and-talk procedures.[18] In Florida v. Jardines, police received an unverified tip that Jardines was growing marijuana inside his home.[19] A month later, police drove to Jardines’ home to investigate.[20] Upon seeing no cars in the driveway and the blinds drawn, police approached the home with a drug-sniffing dog.[21] The dog immediately picked up the scent which led officers to apply for a search warrant. Officers executed the search warrant a day later and discovered marijuana.[22]
At trial, Jardines moved to suppress the drug evidence on the basis of a Fourth Amendment search violation.[23] The case worked its way to the Florida Supreme Court, which granted the motion, finding that the use of the drug-sniffing dog constituted a search in violation of the Fourth Amendment.[24]
On appeal to the Supreme Court, Justice Scalia, writing for the majority, held that while the police have an implied license to approach a home, knock on the door, and engage in a conversation with the home’s occupant, using drug-sniffing dogs exceeded the scope of the implied license.[25] As Justice Scalia wrote: “We have…recognized that ‘the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.’”[26] Justice Scalia explained that knocking on the door is a common-sense occurrence, one that has been “managed without incident by the Nation’s Girl Scotus and trick-or-treaters.”[27] Effectively, law enforcement has the authority to act as any ordinary citizen would in approaching someone’s front door. Such actions do not constitute a trespass. However, the introduction of a trained drug-sniffing dog changes the situation entirely and is no longer comparable to the ordinary door-knocker – as Justice Scalia noted, merely hanging a door knocker does not qualify as an invitation for drug-sniffing dogs.[28]
Therefore, the Court affirmed the decision of the Florida Supreme Court finding that law enforcement, despite maintaining an implied license to enter someone’s property, exceeded the implied license by engaging in activities that the ordinary citizen would not while on someone’s property.[29]
III. Michigan v. Frederick[30]
Michigan v. Frederick presents a fairly straightforward timeline. In March 2014, officers with Michigan’s Kent Area Narcotics Enforcement Team (“KANET”) received a tip during an investigation that corrections officers in the Kent County Sheriff Department were purchasing “marijuana butter.”[31] The tip named Michael Frederick and Todd Van Doorne as corrections officers purchasing the marijuana butter.[32]
Hours after receiving the tip, at approximately 4:00 a.m., seven KANET officers, equipped with tactical vests and handguns, arrived at Frederick’s home.[33] Four officers approached the front door and knocked.[34] Within minutes, Frederick answered the knocks at which time the KANET officers informed Frederick of the pending criminal investigation and asked to enter his home.[35]The KANET officers asked Frederick for consent to search his home, which Frederick granted.[36] During the search, the KANET officers recovered the marijuana butter.[37]
At approximately 5:30 that same morning, the KANET officers arrived at Van Doorne’s home.[38] Four officers approached the side door and knocked.[39] Van Doorne, recognizing some members of the KANET team, opened the door and greeted the officers.[40] The KANET officers explained the purpose for their visit.[41] Van Doorne, thinking that he could clear the matter quickly by providing his medical marijuana card, invited the officers into his home.[42] Van Doorne consented to a search of his home which also revealed his marijuana butter.[43]
Frederick and Van Doorne were suspended from the Kent County Sheriff Department and were each charged with various drug offenses.[44] Both filed motions to suppress the evidence found during KANET’s searches arguing that consent was involuntarily obtained and that the knock-and-talk procedures violated the Fourth Amendment.[45] The trial court denied the motions finding the consent to be voluntarily given and that the knock-and-talk procedures did not implicate the Fourth Amendment’s protections.[46]
The Michigan Court of Appeals denied the defendants’ separately filed applications for leave to appeal.[47] The Supreme Court of Michigan remanded the cases to the appellate court for consideration of the Fourth Amendment issues under the Supreme Court decision in Jardines v. Florida.[48]
The Michigan Court of Appeals, on remand, was asked to “consider only whether the knock-and-talk procedures conducted in these cases were consistent with the Fourth Amendment as articulated in Jardines.”[49] Relying on federal precedent, the Michigan Court of Appeals affirmed the trial court’s decision holding that case law approves of law enforcement’s use of knock-and-talk procedures under the framework of an implied license to enter an individual’s property.[50] The court acknowledged the confines of the implied license, noting that such a license permits an individual to approach the home by a front path, knock on the door, and wait briefly for a response before leaving.[51] The Michigan Court of Appeals stated that a Fourth Amendment violation requires circumstances that “transform” a lawful entrance into a warrantless search.[52] Interpreting Jardines, the Michigan Court of Appeals found that police do not commit Fourth Amendment violations by simply approaching a home and asking to speak with the person who lives there. But, the court continued, there is a violation when the police enter that home not with the intent to speak to the occupant, but with the sole intent to conduct a search.[53]
Ultimately, the Michigan Court of Appeals affirmed the trial court’s decision to deny the motions to suppress, distinguishing the case from the facts presented in Jardines.[54] The court found that “[i]n each instance, officers approached the home, knocked, and waited to be received. And in each instance, the officers were received by the homeowners.”[55] Nothing in the record reflected the KANET unit’s intention to use the knock-and-talk as a smokescreen to conduct the search. Rather, the facts conveyed the officers’ intention to speak with the occupants of each home to ascertain information that would aid in the investigation.[56]
On appeal to the Michigan Supreme Court, the consolidated cases were remanded to the trial court with instructions to treat the knock-and-talks as illegal searches but for further examination of each appellant’s consent.[57] The Michigan Supreme Court, relying on precedent from the Supreme Court, found that knock-and-talk procedures do not implicate the Fourth Amendment when conducted in the proper scope.[58] However, police conduct outside of an implied license constitutes a trespass.[59] Trespass alone is insufficient to constitute a search in violation of the Fourth Amendment, but trespass in conjunction with conduct evincing information-gathering behavior constitutes an illegal search.[60]
Applying caselaw to the consolidated cases, the Michigan Supreme Court found that the KANET unit’s conduct constituted a Fourth Amendment violation.[61] The court was unwilling to extend the implied scope of the license to “predawn approaches” and held that the police were trespassing.[62] The KANET unit exceeded the scope of the implied license by entering constitutionally protected areas at unjustifiable times of the day.[63] However, as the court noted, trespass alone does not violate the Fourth Amendment; law enforcement must also seek information while trespassing. Regarding this prong of the analysis, the Michigan Supreme Court stated: “The KANET officers were not simply cutting across the defendants’ lawns as a shortcut, stopping by to drop off a get-well-soon basket…The officers approached each house to obtain information about the marijuana butter they suspected each defendant possessed.”[64] Thus, the KANET unit violated the Fourth Amendment’s protections against unreasonable searches.[65]
The Michigan Supreme Court remanded the case to the trial court to determine whether the consent provided after the search was attenuated from the illegality.[66] At the time of this article, the trial court on remand has granted the motions to suppress, ultimately preventing the prosecution from proceeding with trials against the defendants.[67] The cases are now pending before the Supreme Court.
IV. Legal Positions
The State of Michigan’s petition sequentially outlines the following questions: (1) whether the Fourth Amendment applies to knock-and-talk procedures; (2) whether the Michigan Supreme Court correctly determined that pre-dawn visits constitute trespass, exceeding the scope of an implied license; and (3) whether a trespass coupled with the intent to gather information constitutes a search under the Fourth Amendment.[68]
The petition argues that Supreme Court precedent expressly permits consensual encounters between law enforcement and citizens. Knock-and-talk procedures fall squarely within consensual encounters because law enforcement is acting as any other private citizen might act.[69]
Although the petition acknowledges that Supreme Court precedent has upheld knock-and-talk procedures, the thrust of the argument is that courts are unclear as to the limits, if any, on knock-and-talk procedures.[70] Specifically, after the Jardines decision was published, federal and state courts have had difficulty determining how to analyze the implied license that permits knock-and-talk encounters.[71] Regarding Justice Scalia’s quip regarding the Girl Scouts, the petition notes: “Some courts have seized upon this dicta to find a Fourth Amendment violation where police operate outside of the framework of what a Girl Scout might do.”[72] For instance, the Ninth Circuit found a Fourth Amendment violation when police approached a suspect’s home at 4:00 a.m. with the intent to arrest the suspect—an action that the ordinary person would not willingly accept.[73] On the other hand, the Tenth Circuit found that Jardines left knock-and-talk procedures undisturbed.[74]
While the State of Michigan ultimately asks the Supreme Court to issue a ruling clarifying whether Jardines in fact changed knock-and-talk protocol, the petition also explicitly requests the Court to approve of pre-dawn knock-and-talks. The petition states:
Petitioner submits that the implied license is not inherently violated by a predawn visit. While perhaps not desired, a person might approach a home for assistance at 4 am if that person had car trouble and did not have a working cell phone, for instance. Such a person should not be found liable in tort for trespass nor would the person generally be subject to criminal prosecution for trespass.[75]
According to the State of Michigan, the situation described above should be viewed similarly to law enforcement acting quickly to investigate a tip.[76]
Alternatively, the State of Michigan is arguing that if such a time constraint is imposed upon law enforcement’s knock-and-talk procedures, then acquiring consent precludes any consideration of the knock-and-talk as a search.[77] The petition notes that to find otherwise would significantly depart from precedent that police are able to ask for consent to speak to someone, or to search their home; asking to search a home is different, the State emphasized, from actually looking in the home.[78] The State of Michigan indicated that the Supreme Court has traditionally followed the objective standard whereby the evaluation of a knock-and-talk case centered on whether the officer went to a door, knocked, waited for the occupant to answer the door, and talked to that occupant.[79] In that scenario, there is no search.
In response to the State of Michigan’s brief, Frederick primarily focused on the State of Michigan’s apparent dislike for the Jardines decision as well as the lack of case law supporting the State of Michigan’s interpretation of Jardines. Frederick argued that the State decision had not even created a split between circuits or the highest state courts.[80]
Among those cases cited by the State of Michigan, Frederick points out each court ultimately found that law enforcement has an implied license to enter a person’s property.[82] However, none of those courts explicitly approved of 4:00 a.m. visits.[83] Because the State of Michigan did not provide sufficient support for its position that the implied license to enter one’s property extends to pre-dawn visits, Frederick asked the Court to deny the petition for certiorari.[84]
V. Future
With the State of Michigan’s petition being filed in early July, it remains unclear whether the Supreme Court will grant certiorari. Under Jardines, the Court confirmed that law enforcement may use knock-and-talk procedures. However, knock-and-talk procedures must be used within the confines of an implied license—such as is provided to any person whose trade requires entrance onto another’s property.
The present case attempts to widen the scope of the implied license to provide law enforcement with greater latitude in conducting a knock-and-talk by virtue of being able to go to someone’s door in the middle of the night. To the contrary, Jardines addressed whether the implied license was exceeded through the use of a drug-sniffing dog on someone’s premises. When the Court published the Jardines decision, the Court split 5-4 finding that such an activity exceeded the implied license and constituted a search in violation of the Fourth Amendment.[85] The five Justice majority consisted of Justices Scalia, Thomas, Ginsburg, Sotomayor, and Kagan.[86] The four Justice minority was composed of Justices Roberts, Kennedy, Alito, and Breyer.[87] Since that decision, Justice Scalia has passed, and Justice Kennedy has retired, opening the door to Justices Gorsuch and Kavanaugh playing significant roles in the overall outcome of the case.[88]
[1] The Justices’ Caseload, Supreme Court of the United States (July 10, 2019), https://www.supremecourt.gov/about/justicecaseload.aspx.
[2] Id.
[3] Aurora Barnes, Petitions of the week, SCOTUSblog (July 3rd, 2019), https://www.scotusblog.com/2019/07/petitions-of-the-week-51/.
[4] Id., quoting
[5] Kentucky v. King, 563 U.S. 452 (2011).
[6] Id. at 455 (2011).
[7] Id. at 456.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 456-457.
[13] Id. at 457.
[14] Id. at 458.
[15] Id. at 472.
[16] Id. at 469.
[17] Id. at 470.
[18] Florida v. Jardines, 569 U.S. 1 (2013)
[19] Id. At 3.
[20] Id.
[21] Id.
[22] Id. at 4.
[23] Id. at 4-5.
[24] Id.
[25] Id. at 8.
[26] Id.
[27] Id.
[28] Id. at 9
[29] Id.
[31] People v. Frederick, 886 N.W.2d 1, 3 (Mich. App. 2015).
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Id. at 4.
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] Id.
[48] Id.
[49] Id. at 5.
[50] Id.
[51] Id. at 6 (citing Florida v. Jardines, 569 U.S. 1, 7 (2013)).
[52] Id. at 7.
[53] Id. at 9.
[54] Id. at 15.
[55] Id. at 7.
[56] Id. at 12.
[57] People v. Frederick, 895 N.W.2d 541, 542 (2017).
[58] Id. at 544.
[59] Id. at 545.
[60] Id.
[61] Id. at 546-547.
[62] Id. at 547.
[63] Id.
[64] Id.
[65] Id. at 548.
[66] Id. at 549.
[67] Petition for Writ of Certiorari at 8, People v. Frederick (Jun. 3, 2019).
[68] Id. at 1-2.
[69] Id. at 9-10.
[70] Id.
[71] Id. at 11.
[72] Id.
[73] Id. at 12 (citing United States v Lundin, 817 F3d 1151, 1159 (CA 9, 2016)).
[74] Id. (citing United States v Carloss, 818 F3d 988, 993 (CA 10, 2016)).
[75] Id. at 15.
[76] Id.
[77] Id. at 16.
[78] Id. “Asking if one may look in someone’s home is not the same as the person actually looking in the home.”
[79] Id. at 21.
[80] Respondents’ Brief in Opposition at 2, People v. Frederick, No. 18-1513 (Jun. 25, 2019).
[81] Id. at 3. “Petitioner has not even attempted to demonstrate how that Michigan Supreme Court decision created or exacerbated a split among the circuits or state courts of last resort.”
[82] Id. at 3-4 (citing, e.g., United States v. Carloss, 818 F.3d 988, 994-95 (10th Cir. 2016), United States v. Walker, 799 F.3d 1361 (11th Cir. 2015)).
[83] Id.
[84] Id. at 4-5.
[85] See, 569 U.S. 1 (2013).
[86] Id.
[87] Id.
[88] See, Sophie J. Hart & Dennis M. Martin, Judge Gorsuch and the Fourth Amendment, SLR (Mar. 2017), https://www.stanfordlawreview.org/online/spotlight-fourth-amendment/ (noting that Judge Gorsuch, while a Court of Appeals Judge with the Tenth Circuit, dissented in the Carloss case writing that “No Trespassing” signs on a person’s property remove law enforcement’s implied license)