Bad Cops Bust of Bad Cops Busted for Good Result

[XLFD]

A three and a half year old case against two Kent County Corrections Officers who allegedly ran afoul of the state's Medical Marijuana Act was dismissed by a Kent County Circuit Court after having went to the Michigan Supreme Court and being remanded back.  The June decision by the Michigan superior court signals a strengthening of Fourth Amendment protections designed to prevent unreasonable searches and seizures, and with the remanded verdict decided against them, the Kent County prosecutor has made known that their side will fight it up to the Supreme Court.  

Chances are, it may not ever get there; here is a breakdown of what happened and the trend of how courts are ruling on the "knock and talk" tactic often used by police without a warrant or enough probable cause to get one.  What is "knock and talk?  Watch the video:

Both Correction Officers Michael Frederick and Todd VanDoorne used marijuana butter to control pain and were registered under the state's medical marijuana law, but police alleged they did not comply with the law.  On March 18, 2014, Michael Frederick was jostled awake at 4 o’clock in the morning by loud, insistent knocking. Answering the door, Frederick was greeted by seven armed and vested officers from the Kent Area Narcotics Enforcement Team (KANET), that regions equivalent of SSCENT, a task force made up of multiple police agencies.

KANET officers asked Frederick if he had any marijuana butter. After he consented to a search, officers found both marijuana butter and a batch of pot brownies in his home.  A little over an hour later, KANET officers repeated the knock and talk at the home of Todd Van Doorne. He also agreed to a search, allowing law enforcement to find and confiscate marijuana butter.

At the time, both Frederick and Van Doorne worked as jail guards in the Kent County Sheriff’s Department. Both have since lost their jobs and been charged with cannabis offenses.  Although Frederick and Van Doorne had valid medical marijuana cards, a circuit court judge ruled that the two men owned too much cannabis to be protected under Michigan’s medical marijuana laws.

During the court trial and at the Michigan Court of Appeals, the Constitutionality of the middle-of-the-night "knock and talk" procedures were challenged to no avail, the appellate court even comparing the visit by insistent riot-geared officers to the delivery of the morning paper.  But all this was overturned by the Michigan Supreme Court on June 1, 2013 relying heavily on a federal case decided in the Supreme Court.

In Florida v. Jardines, Miami-Dade police brought a drug dog onto the front porch of a suspected grow house owned by Joelies Jardines. After sniffing at the front door, the dog “alerted,” which police used as the basis for a warrant. With warrant in hand, police searched the home and found cannabis plants, and subsequently charged Jardines with trafficking.

Writing for the majority (which, in a highly unusual split, consisted of Justices Ruth Bader Ginsburg, Clarence Thomas, Sonia Sotomayor and Elena Kagan), Justice Antonin Scalia ruled that police violated the Fourth Amendment, which in turn required the evidence obtained to be suppressed.  As Scalia noted, there are an “implicit license” and “background social norms” that dictate when and why visitors can appropriately approach a home, which even “Girl Scouts and trick-or-treaters” know. So as long as law enforcement respects that implicit license, they can knock and talk without a warrant, “precisely because that is ‘no more than any private citizen might do.’”

“To find a visitor knocking on the door is routine,” Scalia wrote. “To spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police.”

Applying Jardines, the Michigan Supreme Court ruled that “because these knock and talks were outside the scope of the implied license, the officers trespassed on Fourth-Amendment-protected property.” After all, “a knock and talk is not considered a governmental intrusion precisely because its contours are defined by what anyone may do.”

With today's Supreme Court, Justice Scalia has been replaced with Neil Gorsuch who seems equally well suited to write a similar decision against the Kent County Prosecutor's case.  Just last year In United States v. Carloss, the 10^th U.S. Circuit Court of Appeals, which contained Gorsuch, upheld a knock and talk case with a spirited dissent authored by Gorsuch defending the basic tenets of Fourth Amendment rights.  

For Gorsuch, that thinking seemed “difficult to reconcile with the Constitution of the founders’ design.”, adding “Our duty of fidelity to the law requires us to respect all these law enforcement tools, but it also requires us to respect the ancient rights of the people when law enforcement exceeds their limits.”

Other recent court decisions throughout the country have found that officers who remain on your house's curtilage for an extended period in hopes to conduct a "knock and talk" style conversation with the house's occupant do so unlawfully as such behavior is not otherwise normally acceptable-- as witnessed locally when Claire the Book Girl was castigated and eventually expelled by those who faulted her for lingering a couple of minutes at a house or coming to their houses at 8:00 in the morning and evening. 

The state police issued a memorandum to police agencies just after the June MSC decision to conduct "knock and talk" operations within socially acceptable hours.  Frederick and VanDoorne, exonerated for now, hopefully learned a lesson that you should never consent to a police search of your home, even if it's not happening in the middle of the night, even if you think you have nothing to hide.  Would you let the milkman do that?

[shinblind]

Good job X on a concise report of the Government overstepping their bounds.

[XLFD]

Thanks, and I've heard a few stories around here regarding this very topic.  Our local police need some serious re-training, if everything I hear and read about is true.

[Willy]

Fine article X. I see nothing wrong with the police asking if they can search a dwelling as long as they inform the occupants that they have a right to refuse them entry. I'm sure many people do not realize that if an officer  asks to come in that they are not obligated to allow them into their homes. I also have a real problem with police harassing people who have legal medical marijuana prescriptions. There are enough people abusing other drugs that they can concentrate on. For a prosecutor to take this case to the Supreme Court is an abuse of power and a waste of resources and they themselves should be scrutinized.