Opinion
No. 125389.
July 2, 2004.
SC: 125389, COA: 241804, Sanilac CC: 02-005495-FH.
On order of the Court, the application for leave to appeal the December 9, 2003 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
WEAVER, J., would grant leave to appeal.
I would grant the prosecutor's application for leave to appeal because the scope of the "knock and talk" procedure presents a jurisprudentially significant question. I would especially consider Judge Murphy's dissenting opinion.
After receiving a tip that defendant was growing marijuana on his property, police conducted a "fly over" of that property in a police helicopter. From the helicopter, they observed pots and potting material. Further, an unidentified person standing in the rear yard waved to the police helicopter. This information was conveyed to police officers on the ground. Four plainclothes officers then drove to the defendant's residence in several vehicles to initiate a "knock and talk procedure," an investigative procedure in which police go to a suspect's residence, converse with the individual, and request consent to search. In People v. Frohriep, 247 Mich. App. 692 (2001), the Court of Appeals approved the constitutionality of the knock and talk procedure.
One of the officers entered a side yard where he met a man who identified himself as a neighbor. Because he wanted to speak with the property owner, the officer then walked into defendant's rear yard, which had no physical barriers around it. In doing so, the officer committed a technical trespass. "A mere `technical trespass' does not transform an otherwise reasonable investigation into an unreasonable search." People v. Houze, 425 Mich. 82, 93 (1986) (citations omitted). The officer observed another man sitting near the house. At that point, the officer spotted marijuana plants in plain view in a lean-to at the rear of the house. He then observed defendant, the owner, walking out of the woods at the rear of the property.
As in Frohriep, the officer committed a trespass to locate the owner of property in order to request consent to search the area. Also consistent with Frohriep, the officer encountered the property owner in an open area of the property. Unlike in Frohriep, however, the officer spotted marijuana plants inside a lean-to attached to the rear of the house before he could ask defendant property owner for his consent to search. Thus, the marijuana was seized under the plain view exception to the warrant requirement rather than the consent search authorized in Frohriep.
Because the marijuana was seized under the plain view exception instead of the consent exception, the Court of Appeals majority held that this case did not qualify as a valid "knock and talk."
I question the Court of Appeals reasoning. The touchstone of Fourth Amendment analysis is reasonableness. Ohio v. Robinette, 519 U.S. 33 (1996). A technical trespass is permissible under the open fields doctrine. Hester v. United States, 265 U.S. 57 (1924) ("the special protection accorded by the Fourth Amendment . . . is not extended to the open fields.") See also People v. Ubbes, 374 Mich. 571, 578 (1965). The officer acted reasonably in going to the side yard instead of the front door when the police had observed a man in the side yard. When that man was identified as a neighbor, it was reasonable to continue to look for the property owner. Further, because the officer knew that someone had waved, it was not unreasonable for him to enter the rear yard to locate that person. The police were not barred from entering the barrier-free rear yard especially where the officers were not notified of an intent to exclude entry through the use of "No Trespassing" signs. MCL 750.552 (misdemeanor trespass). People v. Houze, 425 Mich. 82, 92 n 1 (officers may enter property that has been open for public use including the route any visitor would take to a residence.")
MARKMAN, J., joins the statement of CORRIGAN, C.J.