United States v. Charles White, 928 F.3d 734

In May 2012 Charles White and Anthony Bearden were investigated; officers twice entered White’s long, wooded driveway and smelled a strong odor of green marijuana.
On the second visit officers (accompanied by COMET drug-task officers) knocked on White’s door after discussing the odor; they stayed on the curtilage while waiting for warrants and did not search before obtaining warrants.
Warrants for White’s and Bearden’s properties issued; searches revealed hundreds of marijuana plants; both were indicted and moved to suppress evidence seized from White’s property.
Bearden appealed earlier; this court in United States v. Bearden held the officers’ entries were constitutionally permissible and treated the second visit as a knock-and-talk.
White pleaded guilty conditionally in 2017 to conspiracy to manufacture 1,000+ marijuana plants and was sentenced to the 10-year statutory minimum; he appeals denial of his suppression motion and denial of his motion to dismiss the indictment on equal protection/selective-prosecution grounds.

Issue	Plaintiff's Argument (White)	Defendant's Argument (Government)	Held
Whether the officers’ second entry onto White’s curtilage violated the Fourth Amendment under Jardines	Officers’ return was for the purpose of confirming the marijuana odor and thus exceeded the knock-and-talk implicit license under Jardines	The second entry was an objectively reasonable knock-and-talk; subjective intent to investigate does not invalidate the license; once lawfully on curtilage the plain smell of marijuana is not a search	Denied suppression: second entry was a permissible knock-and-talk; officers’ conduct was objectively reasonable and plain-smell detection was lawful
Whether the indictment should be dismissed as a selective-prosecution/equal-protection violation based on the Cole Memos	Cole Memos led to discriminatory enforcement: federally prosecuted White while similar conduct in states with legalized/regulatory frameworks was effectively exempt	Cole Memos are discretionary guidance, do not grant immunity, and White’s conduct (large-scale cultivation without regulatory compliance) is not similarly situated to regulated state growers	Denied dismissal: White failed to show similarly situated comparators or impermissible discriminatory motive; selective-prosecution claim fails

Florida v. Jardines, 569 U.S. 1 (2013) (approach to front door is licensed but bringing a drug dog to sniff constitutes a search outside that license)
United States v. Bearden, 780 F.3d 887 (8th Cir. 2015) (officers’ entries onto White’s property were permissible and second entry was a knock-and-talk)
United States v. Wells, 648 F.3d 671 (8th Cir. 2011) (no Fourth Amendment search when officers remain on areas generally accessible to visitors)
United States v. Robbins, 682 F.3d 1111 (8th Cir. 2012) (officers may return to property for legitimate law-enforcement objectives after detecting evidence of criminal activity)
Collins v. Virginia, 138 S. Ct. 1663 (2018) (physical intrusion onto curtilage to conduct a search is presumptively unreasonable without a warrant)
Wayte v. United States, 470 U.S. 598 (1985) (government has broad discretion whom to prosecute; selective-prosecution claims require demanding proof)
United States v. Armstrong, 517 U.S. 456 (1996) (selective-prosecution plaintiffs must show discriminatory effect and discriminatory purpose)