Constructive Entry v Consensual Encounter

Criminal Law Update

People v Gillam,479 Mich 253 (2007)(july '07). Gillam argued that police coerced him out of his apartment by repeatedly asking him to come outside, which amounted to constructive entry into his home for Fourth Amendment purposes, and therefore invalidated his arrest without a warrant and rendered subsequently obtained evidence inadmissible. Investigating alleged drug transactions, three police officers approached Gillam's home and asked him to step outside several times, at which point they arrested him. Gillam objected at first because he was on a tether from past charges and was scared to step outside, but there was no proof of the police officers using force or threatening language. The court reversed the court of appeals judgment, and held that Gillam failed to establish that the police constructively entered his home. It relied on the Sixth Circuit's decision inUnited Statesv Thomas, 430 F3d 274, 276 (CA 6, 2005). InThomas, the Sixth Circuit stated that, "consensual encounters between the police and citizens were permitted, and they did not become nonconsensual merely because they took place at the entrance of someone's home," and reasoned that the difference between a consensual encounter and a constructive entry is the show of force by police. The court found that because Gillam failed to show coercive force, there was no improper entry, therefore he was arrested legally, and the trial court erred in suppressing evidence obtained from his home after the arrest. Justices Kelly and Cavanagh dissented.