*1 arbitrary capricious was not and definite conviction that the district fits judgment and that the reversal this court made clear error of in judgment its Judge was issued over a dissent Sil- upon conclusion weighing relevant fac- er, who also concluded that ”) Schwartz, 1119). (citing tors.’ Defendant’s arbitrary capri- decision was not Therefore, reasons, for the foregoing we cious. judgment REVERSE the of the district (citation omitted) added). Id. (emphasis court and REMAND with instructions to again, Once court district errs its awarding enter order Plaintiff-Appel- conclusion that this is an extremely close attorney’s lant Moon fees and costs. prior case based on its overturned decision that, and the fact on appeal, a Circuit
Judge of this A majority Court dissented.
panel of this Court overruled the district Thus, initial
court’s decision. the district rely
court cannot continue to on that deci-
sion to make judgments collateral in this I, case. In Moon the first appeal this Joseph HARDESTY, Carleton et case and the basis for the instant litigation, al., Plaintiffs-Appellants, this Court held that UNUM acted arbi- trarily and capriciously in its decision to terminate Moon’s LTD benefits. In addi- TOWNSHIP, al., HAMBURG et tion, UNUM made this decision an obvi- Defendants-Appellees. manner, ously culpable therefore, we con- clude that the relative merit of Moon’s No. 05-1346.
position in this stronger case is than United Appeals, States Court of Therefore, position. UNUM’s we find that Sixth Circuit. the district court erred in weighing this factor in Moon’s favor. Argued: June 2006.
III. Decided and Sept. CONCLUSION Filed: 2006. factors, After analyzing the King we one, two, three,
find that factors and five Thus,
favor Plaintiff-Appellant Moon.
district court erred it when concluded that
“[w]hile pay Defendant able to a fee
award, the other factors do not ‘weigh
heavily’ (citation in Plaintiffs favor.” Id.
omitted). analysis Our of these factors thus, otherwise,
indicates the district
court’s decision must be reversed. More-
over, the repeated district court’s reliance
on its overturned decision to support most
of its conclusions convinces this Court that
the district court abused its discretion in
considering request Moon’s attorney’s Maurer,
fees under King test. See (“An
exists when ‘the court has firm *3 Osetek,
ARGUED: Peter J.
Osetek &
Associates,
Arbor,
Ann
Michigan,
Ap-
for
pellants.
Howe, Johnson,
Marcia L.
Rosa-
ti,
Field,
LaBarge, Aseltyne &
Farmington
Hills, Michigan,
Morris,
G. Gus
Kupelian,
Southfield,
& Magy,
Ormond
Michigan, for
Appellees. ON
Osetek,
BRIEF: Peter J.
nobody an-
Arbor,
Hardestys’
Associates, Ann
Michi-
&
Osetek
Howe,
L.
The officers knew where Plaintiff
Marcia
swered.
gan,
Appellants.
for
&
Johnson, Rosati, LaBarge, Aseltyne
and called his
worked
Kenneth
Hills,
Field,
G. Gus
Farmington
Michigan,
get
in touch
workplace but
unable
Magy,
Morris,
&
South-
Ormond
Kupelian,
be-
him. Sanderson and Garbarcik
field,
Appellees.
Michigan,
home because
lieved someone was
lights
go
in the
off as
had observed
MARTIN, NORRIS, and
Before:
the house. When there
approached
McKEAGUE,
Judges.
Circuit
response at the front door or to the
was no
*4
calls, the
went around to the
McKEAGUE, J.,
phone
officers
opinion
delivered
J.,
try
to
to
NORRIS,
joined.
of the house
contact
court, in
back
which
of
MARTIN,
656-60),
a
Bullock arrived on the
people
delivered
inside.
(pp.
J.
dissenting opinion.
around to the back of
separate
go
scene
time
with Sanderson and Garbarcik.
the house
OPINION
Hardestys
on
back
The
have
deck
McKEAGUE,
Judge.
Circuit
This
lead-
of their home.
deck
stairs
summary judgment
appeal the
Plaintiffs
yard,
ing
it from the
and there is
up to
rights
in this civil
action
for Defendants
into the home from
deck.
entrance
violation of Plaintiffs’ Fourth
alleging
leading from the
pathways
are
There
no
be free
unrea-
right to
Amendment
or front
to the deck.
yard
front
door
The
For the fol-
and
seizure.
sonable
the house and
three officers went around
reasons,
affirm the district
we
lowing
through
and looked
the win-
onto
deck
claims,
of all
but on dif-
dismissal
court’s
sliding
into the house.
glass
and
door
dows
grounds.
ferent
they
testified that
observed
The officers
couch,
inside, lying
Ryan
Dean
on
Adam
I. BACKGROUND
pants. The
on his hands and
with blood
a.m.,
27, 2001,
2:11
May
Officer
On
Dean
shin-
attempted
wake
officers
minor,
Taylor, a
arrested Julie
Bullock
pounding
on
ing flashlights
his face and
that
driving. Taylor told Bullock
drunk
allege
Dean
The officers
that
the window.
consuming alcohol with Jo-
she had been
move and that he
respond
or even
did
Hardestys’ home.
Hardesty at the
seph
offi-
breathing.
The
appeared
Hardesty
to the
Sanderson went
Officer
and ad-
Sergeant DeBottis
cers contacted
it under observation
kept
and
residence
told
him of the situation. DeBottis
vised
minors at-
no other intoxicated
ensure
enter
that
should
the- officers
away. After Bullock
tempted to drive
Dean,
well-being
on
to check
Taylor, met
booking
he
Sander-
completed
damage
possible
as
as little
should do
Hardesty
at the
and Officer Garbarcik
son
the house.
entering
Shortly
investigate
home
situation.
in the
parked
a car
officers entered
arrived,
and
Sanderson
Bullock
before
garage
opener,
door
driveway and used
front door of
approached
Garbarcik
therein,
Two
the home.
to enter
found
on
Hardesty
They pounded
residence.
Depart-
Police
Pinckney
officers from
door,
response.1
no
front
but received
in time
enter
on the scene
ment arrived
Livingston
then contacted
The officers
Hamburg
All
officers.
with the
telephoned
the house
dispatch
County dispatch
not have a doorbell.
rang
does
the residence
officers also testified
1. The
doorbell,
Hardesty
testified
but Kenneth
the officers entered the
resi-
II. ANALYSIS
through
garage
per-
dence
without the
A. Standard of Review
or a
mission
owners
warrant.
This court reviews an
granting
order
summary judgment de novo. Johnson v.
Inside the
the officers found
Karnes,
(6th
Cir.2005);
398 F.3d
age
twenty-one-
three males under the
Woodside,
Daniels v.
396 F.3d
Plaintiff Joseph
and his friends
(6th Cir.2005); Valentine-Johnson
Dean,
Ryan
Ryan
Dean and Tim Brewer.
Roche,
Cir.2004).
lying on the
was found
couch and did have
Summary judgment
proper
“if the
hands,
on
blood
his
not in
but was
need of
pleadings, depositions, answers to inter-
medical attention. The officers observed
rogatories,
file,
on
together
admissions
cans,
full,
beer
empty
some
half
some
affidavits,
any,
if
show that there
and could smell
on all
alcohol
the minors.
genuine
any
no
issue
toas
material fact
Hamburg
administered
and that
moving party
is entitled to a
breath
test
the minors and issued tick-
judgment as a matter of law.” Fed.
*5
in possession
ets for minor
of alcohol.
56(c);
Johnson,
R.Civ.P.
accord
398 F.3d
Brewer’s minor in possession case was dis-
873; Daniels,
at
734;
396 F.3d at
Leadbet
missed after the state court ruled that the
(6th
683,
ter Gilley,
v.
385 F.3d
689
Cir.
entry
Hardesty
2004).
officers’
into the
home
deciding
When
a
for
motion
sum
illegal.
mary judgment,
After
the court
ruling,
charges
the
must view the
evidence and draw all reasonable infer
against Joseph Hardesty were dismissed
in
ences
favor of
non-moving
the
party.
as well.
Matsushita Elec. Indus.
v.Co. Zenith Ra
Joseph Hardesty and his father filed a
Corp.,
574, 587,
dio
475 U.S.
§ 1983 suit in federal district court against
1348,
(1986); Johnson,
651 Michigan which prosecuted court State of The state in state court. of alcohol and dis- case. Plaintiffs cite suppress minor-in-possession granted his motion on the basis which charge Eighth footnote Circuit case missed back deck onto the police officers’ entrance un argument this would be valid indicates Hardesty home was constitutional- of preclusion North Dakota claim law. der search. ly impermissible warrantless Burkett, 1363, See Patzner v. 779 per- that since the court reasoned state (8th Cir.1985). However, n. 7 1369 was not ob- emergency medical ceived Michigan law have all held applying cases until after en- by the served § in a police officer defendants 1983 i.e., curtilage of the tered privity prosecution are not in case deck, they were while what saw back of related criminal case and do not have curtilage could within the impermissibly personal in the outcome of the stake justify entry into the not be used City v. criminal case. See Von Herbert of court be- The federal district home itself. Shores, n. Fed.Appx. 136 St. Clair by the state that it was not bound low held Cir.2003) (6th Burda (unpublished); legality the search court decision on Brothers, Walsh, Fed.Appx. Inc. Plain- the defendants nor because neither (6th Cir.2001) (unpublished); Kegler to the parties tiff Kenneth Livonia, *2 n. City 1999 WL appeal, Joseph litigation. court On state Cir.1999) (unpublished); Glass v. at least he is entitled Hardesty argues that Abbo, F.Supp.2d 705-06 taking a preclude the defendants (E.D.Mich.2003). Therefore, collateral es- of the state contrary ruling to the position offensively pre- toppel cannot be used *6 court, in of litigation clude the an issue addressed give the same Federal courts light criminal case. In of an associated judgments to state court preclusive effect authority, of the dis- persuasive this line in the judgments would receive as those coming in to the court not err trict did v. rendering Migra state. courts same in this case. conclusion Educ., 465 Bd. City Sch. Dist. Warren 892, 75, 81, 56 L.Ed.2d 104 S.Ct. 79 U.S. Hamburg Defendants C. law, (1984). Michigan pre issue “Under § against 1983 case Plaintiffs’ 1) identity of there is applies clusion when based on the Hamburg Defendants is 2) there proceedings, parties across vio Hamburg officers contention that the valid, in the first judgment final was a when lated the Fourth Amendment 3) actually the same issue was proceeding, onto back deck of the went the. necessarily in the litigated and determined without a home home and entered the 4) against party and proceeding, first The Fourth warrant. Amendment a full is asserted had whom the doctrine individuals shall be free provides that in litigate issue to opportunity and fair searches unreasonable warrantless . City Darrah v. proceeding.” the earlier houses, papers, “persons, seizures Cir.2001) 301, Park, 311 255 Oak IV. Amend. and effects.” U.S. Const. 146, Gates, 452 434 Mich. People v. (citing to the rule only exceptions a few There are (Mich.1990)). 627, 630-31 N.W.2d war must obtain a government litigants is met when first element in by probable cause to supported rant or prior to action were parties were Thompson dwelling. private into a trude Id. action. parties prior to to privy 17, 19-20, Louisiana, 105 S.Ct. v. 469 U.S. parties of the defendants None (1984). excep 409, 246 These 83 L.Ed.2d argue prosecution. Plaintiffs court state prohibi- Fourth Amendment tions to the privity Defendants were 652 public
tion exist where the
interest
re
home is not part of the
quires
be a more
application
there
flexible
curtilage.
home’s
rant exception where law enforcement
faces a
L.Ed.2d 290
voluntary
monte,
avoid
436 U.S.
stances include a Fourth Amendment war-
L.Ed.2d
L.Ed.2d
235,
U.S.
circumstances.
of the rule. Arkansas v.
U.S.
(1979).
753, 759,
serious
412 U.S.
“need
385, 392-93,
consent
injury.”
Two of these exceptions are
(1978).
(1973);
(1978).
99 S.Ct.
protect
218, 219,
509,
Schneckloth v.
The Supreme Court
Michigan
search and
98 S.Ct.
Mincey
98 S.Ct.
2586,
Exigent
93 S.Ct.
preserve
Sanders,
61 L.Ed.2d
1942,
Arizona,
2041,
circum-
exigent
Busta
life or
Tyler,
442
36
resident
tion
factors are not to
whether
imity of the area
294, 301,
lage. United States v.
[3] the nature of
(1987). The four
four
put,
home,
factors
an enclosure surrounding the
to protect
people passing by.” Id. These
107
[2]
area
Supreme
[4] the
whether
S.Ct.
the uses which the area
claimed to be
is
factors are
be used to determine
the area from observa
part
1134,
applied
steps
Court has set forth
the area is included
of a
Dunn,
94
taken by the
“[1]
mechanically,
home’s curti-
L.Ed.2d 326
curtilage
480 U.S.
prox
simply
but are
analytical
“useful
tools” to
Fourth
protec
extended
Amendment
consider the
question
central
of “whether
curtilage
tions to the
around a house. Oli
question
intimately
area
is so
States,
tied to
170, 180,
ver v. United
466 U.S.
the home itself that it
(1984).
placed
should be
S.Ct.
also curtilage. United States as The district curtilage to be within the well. ing an area Cir.1997). (6th 768, 773 124 F.3d contrary v. to the was er- Jenkins court’s conclusion laundry, using a doing gardening and Like ror. activity which associated is an
hot tub
domes
privacies of
activities and
with the
Talk
2. Knock and
weighs
factor also
fourth
tic life. The
if the back
argue that even
be curti-
Defendants
to
finding
of
the back deck
favor
directly
part
curtilage,
the deck
of the home’s
of
deck was
lage.
placement
the deck
protects
Hamburg
the house
did not violate the
behind
by. See
passing
to
people
visible
they went onto
Fourth Amendment when
that
Jenkins,
(observing
at 773
124 F.3d
in order to knock at the back
deck
yard
of the back
behind
placement
front
nobody answered at the
door after
from the view
naturally
it
protected
acknowledge that the offi
Plaintiffs
door.
only
road ad
public
on the
passers
of
go
front door
permitted
to
to the
cers
testimony in
joining
property).
with the
purposes
speaking
knock for
of
neighbors could see
record that
occupants
asking for consent
trees
pine
the rows of
through
deck
back
See,
premises.
e.g.,
States v.
United
Hardestys’
does
yard
along the back of the
(6th Cir.2005);
Thomas,
274, 277
430 F.3d
An area
conclusion.
undermine this
Chambers,
395 F.3d
States
United
neighbors
curtilage even where
can be
(6th Cir.2005);
City
Ewolski v.
568 n.
of
Daughen
of the area. See
have a view
(6th
Brunswick,
Cir.
287 F.3d
504-05
594, 600-01
150 F.3d
baugh
Tiffin,
2002). However,
that this
Plaintiffs assert
cir.1998)
backyard
that a home’s
(holding
officers to
not authorize the
principle did
of evidence
curtilage
spite
back door.
proceed
portion
at least a
neighbors could see
yard).
same
that the
Defendants contend
.
factors indi-
of the Dunn
Consideration
permits officers
legal principle which
part
deck is
Hardestys’
back
cates that
investigative
employ the knock and talk
curtilage. This conclusion
of the home’s
justifies
also
technique at the front door
Cir-
by the line
Sixth
supported
further
under
the back door
go to
the decision
backyard of a
holding
cuit cases
Defen
this case.
the circumstances of
curtilage. Widgren,
part of the
home is
reason to
had
point out
dants
582;
Daughenbaugh,
429 F.3d at
pres
home due
someone was
believe
*8
(“The
immedi-
backyard and area
601
at
driveway and
multiple cars
ence of
really ex-
home are
ately surrounding the
light had been
that an interior
the fact
Jenkins,
itself.”);
dwelling
tensions
up
proceeded
as the officers
extinguished
This
the case even
124
at 773.
is
F.3d
Therefore,
argue that
they
driveway.
by a fence.
yard is not surrounded
where a
the front
no answer at
there was
when
There is
Widgren,
beyond inquiry the front door an at the But knocking at the front door will not always back door. police result in being officers able permitted initiate the conversation. Third, Fourth, Eighth, and Ninth The most obvious example is no- where Circuits have all been faced with situations body is at home. Even where someone is police where officers knocked on a front home, at knocking at the front door may and, upon receiving answer, door go unheard. When the circumstances indi- proceeded to the back door. Estate of cate someone is knocking home and at Marasco, 497, v. Smith F.3d 318 520-21 the front proves door insufficient to initiate (3d Cir.2003); Bradshaw, States v. United person conversation with the sought, offi- (4th Cir.1974); 490 F.2d United cers should not be categorically prevented Anderson, States F.2d from carrying out investigative func- (8th Cir.1977); Hammett, United States Therefore, tion. we hold that where Cir.2001). (9th 236 F.3d All of knocking at the front door is unsuccessful these circuits held that a knock and talk in spite of indications that someone is in or can be extended the back door or back around the may an officer take yard under certain circumstances. The steps reasonable to speak person with the Ninth Circuit has stated that “an officer faith, sought out may, steps even where such good away move from the require an intrusion into front door In seeking when to contact the case, occupants Hammett, of a this residence.” there were indications that some- at present F.3d 1060. The one Fourth Circuit has held within the Fourth “the Amendment knocking at the proved does front door prohibit police, attempting speak unsuccessful, with a proceeding around the house homeowner, from entering backyard and onto the back deck was a reasonable when circumstances indicate might step, and that step was directed towards him find there.” Alvarez v. Montgomery initiating a person conversation with the County, Cir.1998). persons Therefore, in the house. The Third Circuit has held that “[w]here Hamburg entry officers’ curtilage into the e pursuing objective, ar a lawful in order to effectuate the knock talk any unconnected to the fruits investigative technique did not violate activity, instrumentalities criminal Plaintiffs’ Fourth rights. Amendment their entry curtilage into the after not receiving an answer at 8. Emergency front Medical door might be entry reasonable as into the cur- The three officers who went to the tilage may provide only practicable back door all testified that once on the way attempting to contact the resident.” back deck young observed a man Marasco, 318 520. lying on a couch inside the house whose pants hands and bloody and who adopt
We an approach similar appeared to breathing. not be They to those all taken our sister circuits and that, they testified hold that the beat the door proceed decision to *9 around side of the the house to shined their flashlights seek out a back door in young was within scope eyes, shouted, man’s of the knock and and talk but investigative technique already nothing roused him. recognized Plaintiffs offered tes in this timony circuit. permit Police officers only are along window ted private to enter property approach and back of the house from which the couch the front door in to questions order ask could be seen was covered with closed ask for consent to premises. search the draperies. Therefore, they argue that the
655
they
to see if
could see
they
door and windows
what
have seen
could not
officers
anyone
are
He stated that
draperies and
inside the house.
the closed
through
claim
lying
for their war-
man
on the
justification
very young
a
he
a
lying to create
saw
Hardesty home.
entry
pants
into
and
couch with blood on his hands
rantless
pointed out that even
court
breathing.
The district
Bull-
appeared to not be
who
testimony it would
according
Plaintiffs’
to
oh to
how he and the
ock went
describe
to see
for the officers
possible
have been
on the
pounded
other officers
window
couch
lying
was
on the
person
a
whether
young
in
lights
man’s face
shined
though
drapes, even
the closed
through
okay,
if
received no
to see
he was
necessarily have been able
they would
response. Bullock also testified
man or
young
a
person
tell that
in
beer cans and cartons
empty
saw
on his hands
to see blood
been able
house, including one or two cans on the
court then concluded
The district
pants.
in front of the individual on
coffee table
case,
pres-
that,
of this
in
context
essentially the
gave
the couch. Sanderson
responding
couch not
person
of a
on a
ence
he
of what
saw while
description
same
eyes and loud
in
lights shining
his
looking through the window from the back
give
banging was sufficient
shouting and
efforts to rouse the individ-
deck and their
that a med-
a
belief
the officers
reasonable
ual
on the
also
seen
couch. Garbarcik
emergency existed.
ical
elements of
testified
the same essential
recog
Supreme
empty
Court
in the
beer
what was seen
house:
requirement
nized that the warrant
non-responsive
lying
individual
cans and
necessarily
does not
Fourth Amendment
blood on his hand
on a couch with some
emergency
police responding to
apply
not be breath-
pants
appeared
who
Arizona,
Mincey
v.
situations.
ing.
385, 392,
L.Ed.2d
that earlier
Joseph Hardesty testified
(1978)
state
(observing that “[n]umerous
he
evening
night
question
on the
recognized that the
cases have
and federal
drapes covering the win-
had closed
police
bar
Amendment does not
Fourth
had not
in the back of the house and
dows
entries
making
from
warrantless
re-opened them. Sanderson
subsequently
they reasonably believe
when
and searches
no
or other
drapes
that there were
stated
of immedi
within is
need
person
that a
covering
treatments
the window
window
aid”);
City
also Thacker v.
Co
ate
see
person
and saw the
he looked inside
when
(6th Cir.2003).
lumbus,
328 F.3d
could
that he
on the couch. Bullock stated
exigent
falls within
scenario
Such
recall
and did not
through the window
see
exception to the warrant re
circumstances
covering the
anything
drapes or
else
any
United
States
quirement.
See
testimony
foregoing
demon-
window. The
Cir.2003).
Williams,
of fact
genuine
issue
strates that there
prov
the burden of
government bears
covering
drapes were
concerning whether
such as
exigent circumstances
ing that
the couch could
window
which
justify a
existed to
emergency
medical
viewed.
States
warrantless
search. United
(6th Cir.1996).
Bates,
dispute
that there
Defendants do
drapes
of fact about the
an issue
went to
three officers who
There were
Instead, they argue that
open or closed.
Offi-
the back door of
if the
even
fact is not material because
this
Bullock,
and Garbarcik.
Sanderson
cers
still have
could
drapes were closed
that once on the back
*10
Bullock testified
drapes
enough through the closed
through
sliding glass
seen
they looked
deck
give
them reasonable belief that
there
tention that the Pinckney officers violated
emergency.
was a medical
Kenneth Har-
the Fourth Amendment
they
when
entered
desty testified
drapes
that even with the
the Hardesty home without a search war-
“[y]ou
closed
would be able to observe if
The Pinckney
rant.
officers arrived on the
you were
four or
foot of
five
scene after the Hamburg
gone
officers had
window a individual on the couch. You
door,
windows,
to the back
looked into the
if
would
be able
tell
it was a man or
and determined
needed to enter
just
a woman. You would
able
see
the house in
order
see if medical assis-
(JA 225-26.)
form on the couch.”
He
required.
tance was
Pinckney
officers
went on
position
to state that from that
entered the house with the
offi-
Hamburg
person could
really distinguish
colors
cers
based'upon
provided
information
Therefore,
see fine movements.
by the'Hamburg officers that an individual
light
facts taken in the
most favorable to
appeared
in the house
unconscious and
closed,
Plaintiffs are
drapes
bleeding.
upon
Reliance
such information
the officers could not see blood on the
Pinckney
insulates the
officers from civil
person lying
couch,
on the
the officers
liability in the event the information relied
could not
person
determine whether the
upon was defective. See United States v.
lying on
couch
breathing,
221, 230,
Hensley, 469
U.S.
105 S.Ct.
officers could see that there was an indi-
(1985); Whiteley
under these circumstances the officers could have reasonably believed that III. CONCLUSION individual on the couch was suffering from The evidence taken in light most alcohol poisoning. That reasonable belief favorable to Plaintiffs does not establish a awas sufficient entering basis for the Har- Therefore, constitutional violation. all De- desty residence without warrant or con- fendants are entitled to judgment as a sent. exigent Since the circumstances ex- matter of law in their The order of favor.. ception to the applied, warrant rule the district court dismissing all claims is officers did not violate the Fourth Amend- AFFIRMED. ment when they entered the Hardesty home. MARTIN, JR., F. BOYCE Circuit Judge, dissenting. Pinckney D. Defendants § Plaintiffs’ After against 1983 case careful consideration of the issues Pinckney Defendants case, is based on the con- in this I respectfully must dissent *11 1983 ease a case. section stems from majority’s opinion. The district
from the
against
Hardestys’ claims
Amendment violation
of the
Fourth
dismissal
court’s
was in
summary judgment stage
Hardestys when the officers entered
at the
be reversed.
and should
error
home without a warrant or a
back of their
on the
legitimate basis. Their claim relies
I.
and,
recognition
backyard
specif-
that
n
impor-
a
opinion omits
few
majority
ically,
part
the deck of the house is
timing of events
regarding the
tant facts
subject
parcel of the home and
to Fourth
night at
fateful
on
protection. Areas that lie be-
Amendment
2:11
arrested at
Taylor
Julie
was
house.
a
yond the
walls of
home but
physical
driving. Upon learning
for drunk
a.m.
re-
protection
under its
are
which remain
the alcohol at the
had consumed
that she
curtilage.
to as
ferred
residence, the
chose to not
police
originated at
curtilage concept
“The
immediately
enter
to the house and
go
to extend to the area immedi-
common law
under observa-
merely put the residence
ately surrounding
dwelling
house the
for
the house
over
They
tion.
observed
of burglary
under the law
protection
same
hours, until,
approximately
at
4:30
two
afforded the house itself.” United
as was
a.m.,
appro-
it was an
decided
Dunn,
294, 300, 107
States v.
ask
the house and
approach
time
priate
(1987).
Black-
S.Ct.
1134. While I II. fac- characterization of second in its result, find- its eventual agree tor I mind, I will now With these facts curtilage to be within the ing this area summary judg- address the review home. in this ment in favor the defendants strongly surrounding finding I believe favors presence which of a line of trees 1. The railing backyard, along with a en- the entire this area is deck, circling factor one second make *12 658 However, backyard
Despite finding
assuming
original
and deck
that
the
does,
permissible,
to be within the
knock and talk was
house
this
immediately
mean
curtilage
majority
that the officers had
of the
holds
right
to further
privacy
invade the
and
that the officers’ actions were excused
sanctity
home and walk
the “knock and talk” rule.
backyard.
majority,
into the
The
creating
and
as
[knock
talk]
Courts have defined
Court,
law
new
for this
holds that a knock
procedure
[in which]
noncustodial
officers,
talk
permits
upon
and
situation
himself and
to talk
officer identifies
asks
response,
no
receiving
to continue to the
occupant
to the home
and then eventual*-
back of the
occupants
house to look for its
ly requests permission to search the res-
without a search warrant. This bold ex-
generally
upheld
idence. Courts
have
tension of the ‘knock and talk’ rule essen-
investigative procedure
legiti-
this
aas
tially extinguishes
protections
afforded
suspect’s
mate effort to obtain
consent
to curtilage.
capital
protects
“[T]he
to search.
privileges
and
all its
appur-
branches and
Chambers,
United States
tenances, if within the curtilage or home-
(6th Cir.2005) (internal
2
568 n.
quotation
Comm,
4 Bl.
stall.”
at
A
225.
violation of
omitted).
marks and citations
This Court
curtilage
of the home is the same as
“[fjederal
has also
held
courts have
Dunn,
violating the home itself. See
480
recognized
‘knock
strategy
and talk’
as
at
U.S.
S.Ct. 1134. To allow
investigative
a reasonable
tool when offi officers effective access to the entire home
gain
cers seek
an occupant’s
consent to merely based on non-responsiveness to a
search or
reasonably suspect
when officers
knock at the
front door flies
the face of
criminal activity.”
City
Ewolski v.
the historic privilege extended
Brunswick,
knock and talk to be a one. In reasonable may take steps speak reasonable case, this strangely officers acted person being sought out even where without a explanation reasonable in wait- such steps require an intrusion into the ing outside the house for over hours two curtilage.” Maj. Opn. 654. The majority then, a.m., approached at 4:30 the house to this rule protect believes is sufficient to supposedly obtain consent for a I search. home from entering curtilage how, instance, fail to see in this the knock actually when no one is Practically, home. and talk however, was used as a “reasonable investi- this “safeguard” can not work. gative tool.” case, In this Hardestys claim that the majority not mention does While on and off inside turned
lights which *13 (which to is also relevant to consider this, relied on I believe it the officers home in- present) were crimes the officers were exactly was what indicate that someone timer, a lights set on Beyond place. events took on a timer. when these vestigating of “indications imagine arrest, a number Taylor, one could told the upon her Julie are false home” which that someone drinking had alcohol police that she been systems turn Security often indications. Joseph home with Har- at the a on and off lights or turn off the on and A violation of desty, a minor. first-time give potential bur- to radio or television in is a Michigan’s Minor Possession statute occupied. a that home is glars the illusion jail no time. M.C.L. fine and $100 sys- lighting systems or sprinkler Timed § in stat- The Minor Possession 436.1703. they are it that make seem tems consump- possession ute both covers the home. by on someone turned by a minor. Id. tion of alcohol radios, Televisions, clocks acci- and alarm [Ajmendment “[Fjourth prohibits po- give impression dentally on could left entry making night a warrantless lice from Finally, present. voices is that someone him home in order arrest person’s of a a home could stem from within the nonjailable of- of a traffic for violation friendly par- or a system phone answering Morgan, United States fense.” range from examples rot. While these (6th Cir.1984) (citing absurd, reality is that realistic to Wisconsin, n. U.S. Welsh is in or that someone rely on “indications (1984)). 80 L.Ed.2d destroy the Fourth around the house” to entry Yet here we have warrantless protections of residence Amendment (treating curtilage as home person’s unjustifiable.2 home) question the night equal to the ‘knock majority’s extended Even if the an offense that carries about residents one, I must appropriate rule an and talk’ This has held jail it time. Court no in this case question the decision prohibits such the Fourth Amendment steps” when officers took “reasonable Therefore, isit an arrest. actions to make I, must again, point entered pro- Amendment the Fourth logical spent than two hours officers out the more merely being taken to such actions hibits observing home. merely occupants. question the a.m., Then, decided at 4:30 the officers reasons, I would reverse For these extreme- making approach approach, summary judg- granting of district court’s they observed ly in time to when remote proceedings. remand further ment and was within indications that someone on I would reverse based Because by the officers spent The time house. of the Fourth Amend- violation was unreason- waiting home outside I curtilage, would by entering the ment talk, knock and time of the able. inappropriate summary judgment find question, offenses given potential exigent circum- or not there were to whether Finally, the decision was unreasonable. entering the home.3 justifying stances to unreasonable. curtilage was enter the radios, televisions, lights, and card- using the classic 2. to mention I would remiss cutouts. board (1990), my holiday ALONE film HOME might appear to be of how home discussion note, however, that the “blood 3. do wish I eight-year-old Ma- occupied. In the film person lying on the hands” passers-by, caulay is able outwit Culkin fact, was, the knuckles scabs on couch convincing is not home alone them that he atten- young no medical man who needed III. reasons, respectfully I
For these dissent majority’s opinion.
from the *14 GLENN, Plaintiff-Appellant,
Wanda (Metropolitan
METLIFE Life Insur Company) Long
ance Term Dis
ability Sears, Plan for Associates of Company,
Roebuck and Defendants-
Appellees.
No. 05-3918. of Appeals,
United States Court Circuit.
Sixth
Argued: April 2006. Sept.
Decided and Filed: 2006. tion after entered hard to believe that the officers saw those summary home. Because this case exigent scabs and it believed to constitute an and, judgment stage taking these facts in the circumstance. light Hardestys, most favorable to the it is