Knock and Talk vs. Plain View: "I See Weed"
A December 2003 Michigan Court of Appeals decision sheds some light on how courts might limit the use of the “knock and talk” technique. See Michigan, v. Galloway, 259 Mich. App. 634; 675 N.W.2d 883; 2003 Mich. App. LEXIS 3134.
In May 2001, the Michigan State Police marijuana eradication team received an anonymous tip that marijuana was being grown on an individual’s property. Officers conducting a flyover of the property observed plastic pots and potting soil on the grounds but did not see any marijuana plants. An unidentified person on the property waved to the officers during the flyover.
Ground units went to the residence intending to meet the property owner and ask for permission to search the property for marijuana. Sgt. Lawrence Scott arrived first and was followed closely behind by Trooper Schwalm. Scott observed a person in the side yard and went to speak with him. After determining that the person was a neighbor, Scott proceeded to the back yard where he saw Schwalm and another person sitting at the rear of the home. Scott then noticed a lean-to attached to the back of the home. He could see that the structure contained several marijuana plants. About the same time, the defendant in this case appeared from a wooded area on the rear of the property and entered the lean-to. He was arrested and handcuffed when he ignored Scott’s commands to stop.
By this time other officers had arrived at the home and had spoken with the defendant’s wife, who had been inside the home. Those officers took the wife to a police vehicle and, after explaining why they were there, obtained a written consent to search. They acknowledged to her that they had not observed marijuana from the helicopter.
A subsequent search of the property resulted in the seizure of 122 marijuana plants from the lean-to. Troopers also found a small amount of marijuana and residue in the home. The defendant was charged with manufacturing marijuana. He filed a motion to suppress and the trial court concluded that the search and seizure were illegal.
On appeal, the state argued that the search and seizure were permissible because the police had accessed the defendant’s property for a “knock and talk” and had discovered the plants in plain view.
The court noted that it had previously upheld the constitutionality of the knock and talk tactic in People v. Frohriep, 247 Mich. App. 692, 702; 637 N.W.2d 562 (2001). (In Froheip, police seized evidence of criminal activity after first obtaining consent to search.)
The court in this instance noted that the seizure came after officers had entered the defendant’s property and before they had obtained permission to search. The court found that the seizure was based on the plain view doctrine and not consent. Accordingly, the court concluded that it had to determine whether the seizure was allowable under plain view rules.
In plain view situations, an officer can seize illegal items if he is lawfully in a position to view the contraband. Thus the key question in this case became whether the sergeant had a legal right to go onto the rear of the property, where he discovered the marijuana. The court concluded that the police intrusion into the backyard was illegal.
The court noted that the original anonymous tip indicated that marijuana would be found in a structure immediately behind the house (the lean-to). It also observed that the sergeant did not wait until the knock and talk was performed and consent obtained before going to the rear of the home. Citing precedent, this court wrote: “It is not objectionable for an officer to come upon that part of the property which ‘has been opened to the public common use.’ The route which any visitor to a residence would use is not private in Fourth Amendment sense, and thus if police take the route ‘for the purpose of making a general inquiry’ or for some other legitimate reason, they are ‘free to keep their eyes open,’ and thus it is permissible for them to look into a garage or similar structure from that location.”
In this instance, the court said the police, without knowledge that anyone was present in the backyard, ignored the knock and talk protocol and went directly to the backyard where they had been told marijuana would be found. The court said that the proper application of the Fourth Amendment depends on whether the actions of the police were reasonable. In this instance the court said it was unreasonable for the police to bypass the front door and obtain permission before intruding further onto the defendant’s property.
Consequently, the court affirmed the lower court’s decision that the evidence was seized illegally.
The knock and talk tactic can be a very effective investigative technique. The court in this case did not disagree with its use. It merely limited how far an officer can go onto private property in an effort to gain consent.