*1 PEOPLE v BOLDUC 2, 2004, Lаnsing. August Docket No. 244970. Submitted June Decided 24, 2004, appeal sought. at 9:20 A.M. Leave to Jerry charged posses- J. Bolduc in the 68th District Court with 333.7401(2)(d)(iii). marijuana, sion with intent to deliver MCL court, J., McAra, charge The district D. Michael dismissed the after finding police’s procedure that the use of the “knock and talk” coercive, resulted unlawful seizure of the defendant and required suppression of evidence of the defendant’s self-
incriminating marijuana statements he turned over to the police. Court, J., Hayman, The Genesee Circuit Archie L. affirmed charge. Appeals, Fitzgerald, PJ., the dismissal of the The Court of (Gage, J., dissenting), appeal J. denied leave to for lack COOPER, 241103.) (Docket grounds presented of merit in the No. Supreme Cоurt, granting leave, in lieu of remanded the case to the Appeals granted. Court of for consideration as on leave Appeals
The Court of held: procedure The knock and talk ais law enforcement tactic in police, possess which the who some information that believe investigation, warrants further but that is insufficient to consti- probable warrant, tute approach person cause for a search suspected engaging illegal activity person’s residence, at the identify officers, police request themselves as consent to suspected illegality search Although for the or illicit items. procedure knock and per se, talk is not unconstitutional рrocedure subject against to constitutional restraints unlawful Const, IV; seizures. § US Am Const art 11. The test for procedure whether the use of the knock and talk results in an whether, unlawful surrounding seizure is in view of all the circumstances, person would have believed he was not free to questions decline to answer and terminate the encounter with the police. case, voluntarily police In this the defendant admitted the into door, his home after the knocked on the but the defendant requests by and, by denied to search his home both physical communication, verbal and asked the to leave his Bolduc leave, however, prolonged police, but did not home. The large by embarking questioning on a line of about encounter new up pants pocket, be bulge which turned in the defendant’s $6,500 was an indirect offer of force in cash. This conduct suggesting the defendant would not be allowed to exercise *2 Moreover, right because the defendant was to end the encounter. retreat, reasonably opportunity he and had no other to his home the encounter. This that he was not free to terminate believed suppression inherently the defendant to coercive seizure entitled self-incriminating marijuana, and the and the statements of his illegal an seizure. evidence was the fruit of Affirmed. J., reverse the district court’s dissented would O’Connell, charge. case do not reflect an The facts of this dismissal by police
improper a confession from the defen- effort to extract majority using procedure. and talk The dant after knock incorrectly concludes that a three to four minute conversation pocket illegal bulge in amounted to about the the defendant’s prohi- person. The Fourth Amendment seizure of the simply against unlawful searches and seizures does bition police voluntarily apply admitted the into his when the defendant investigation, initially participate in their home and offered to request police refusal to their to honored the defendant’s Furthermore, voluntarily made search his home. the defendant self-incriminating marijuana to statements and turned over thе police. refused to The record does not show that the or that threatened to remain until leave the defendant’s home Rather, immediately left with the defen- he confessed. go verify the dant when he volunteered to with them to source home, money. later, Sometime outside the defendant’s voluntarily self-incriminating made the statements and then re- marijuana police. to the On turned to his home to turn over facts, these there was no coercion. Cox, General, L. Attorney Casey,
Michael A. Thomas General, Busch, Prosecuting Arthur A. Attor- Solicitor Kuebler, Schlinker, Donald A. and John C. Assis- ney, Prosecuting Attorneys, people. tant for the Isaac) for (by Roger Law G. Isaac G. Roger Office appеal. the defendant on HOEKSTRA, EJ., DONOFRIO, Before: and O’CONNELL and JJ. by PJ. This case is before us order of our
HOEKSTRA,
Court, which,
in lieu of
leave
Supreme
granting
remanded the case to this Court for
appeal,
consider-
Bolduc,
ation
on
granted. People
leave
I. FACTS2 AND PROCEDURAL HISTORY examination, prosecution pre- At the preliminary witness,3 officer, only Captain sented one Compeau, Approxi- Michael who testified as follows. mately he and another officer two weeks before defendant, initiated the knock and talk encounter with Compeau tip storing received that defendant was marijuana during at his residence. On several occasions weeks, intervening conducted surveillance of defendant, anything never that supported but observed incident, tip. Aрril On date of the 16, 2001, officers, Compeau, along with four other went to approximately defendant’s residence at 7:00 P.M. conduct the knock and talk procedure. residence,
At Compeau and one other officer the front approached door defendant admit- door, ted them into his residence. Just inside the front three to four minute encounter place took between officers, defendant and the Compeau with apparently all doing talking Compeau of the for the two officers. defendant, initially upset by informed who was presence officers, but soon calmed down matter, Because no trial has occurred this our recitation of facts is *4 preliminary trаnscript. taken from the examination pertinent portions prosecution The also read into the record laboratory report on the evidence obtained from defendant. Mich APP 430 they that were officers “gentlemanly],” became marijuana that tip and that had received Although at his defendant did not stored residence. he no” to deny having marijuana, Compeau’s “said ques- the home. request permission for search When asked them to regarding tioned whether defendant did, leave, certainly yes.” “He Compeau responded, that Compeau put “[defendant] further related his me, I touch and up, [sic] hands and said don’t—don’t talking money.” the time about the that’s we started Compeau сoncerning initiated conversation money after defendant denied the officers consent to orally them to leave both and search instructed gesture Compeau’s person. topic directed at defendant money Compeau arose when asked about the large bulge pocket. Compeau defendant’s rear While bulge, could articulate when he first observed the he may stated he have noticed it when he was con- ducting pat-down search of defendant’s person myself” around the waist area for “to weapons protect safety.” and because good police procedure “[fit’s However, Compeau nothing also stated that from the surveillance, tip, his or defendant’s conduct at his gave residence defen- Compeau suspect reason dant would be armed with a weapon. Compeau causing
When asked defendant what was large bulge rear defendant pocket, responded his $6,500 day that he had sold a car that for and he offered to take Compeau verify to his car lot to the sale. and, Defendant rode to the car Compeau lot with once there, verify defendant was that he a car unable sold day. Eventually, having admitted mari- residence, juana and took the officers back to his where freezer, opened marijuana retrieved nine bags that weighed pounds, gave 3.7 them to the police. *5 People v Bolduc 435 Opinion Court Defendant voluntarily went to the station with Compeau while other officers remained at thorough house conduct a more search. at the While station, being and without advised of his Miranda4 rights, defendant gave tape-recorded statement5 and signed later a consent to search form.6 Defendant charged possession was with with intent 333.7401(2) (d)(iii). marijuana, to deliver MCL At the preliminary examination, the district court dismissed the charge, finding that defendant’s self-incriminating statements and the marijuana were obtained after police officers improperly failed to leave defendant’s Specifically, house. the district court found that defen- dant denied permission to sеarch and directed the orally officers both and by gesture Thereafter, to leave. by continuing to question defendant about the large bulge his rear pocket, Compeau’s conduct inher- ently coercive he using because was an “indirect offer of indicating force” and leaving was not until “I get the I Thus, information want.” the district court entered an order of dismissal of the charge against defendant.
The prosecution appealed the district court’s order of
dismissal
court,
to the circuit
which affirmed the dis-
trict court’s order. The prosecution then filed with this
Court a delayed application for
appeal
leave to
circuit court’s order. This Court
prosecu-
denied the
tion’s application “for lack of merit
in the grounds
presented.”
Bolduc,
unpublished order of the
(Docket
Court of Appeals,
entered June
2002
No.
Arizona,
1602;
Miranda v
384 US
86 S Ct
L Ed 2d
fingerprinted
giving
Defendant was
at the
station before
tape-recorded statement.
6 Compeau
during
incident,
testified that
this entire
defendant was not
under arrest.
Opinion
Court
241103).
appeal
leave to
sought
then
prosecution
stated,
in lieu of
As previously
Court.
Supreme
issued an
Supreme
our
Court
appeal,
leave to
granting
for consider-
the case to this Court
remanding
order
II. STANDARD OF REVIEW
we stated the standard of
supra
In Frohriep,
ruling
a trial court’s
on a
considering
review when
*6
suppress
evidence:
motion
error,
findings
a trial court’s
of fact for clear
We review
factual
giving
to the trial court’s resolution of
deference
208-209;
Farrow,
202,
People
461 Mich
600 NW2d
issues.
v
Burrell,
439,
(1999),
448-
quoting People
634
417 Mich
(1983).
449;
finding
clearly
“A
of fact is
Both US
and
searches
unreasonable
right against
guarantee
326, 330;
McArthur, 531 US
Illinois v
also
seizures.9 See
(2001);
946;
L Ed 2d 838
148
121 S Ct
(2000).
605 NW2d
Kazmierczak, 461 Mich
699-700,
explained:
we
supra
In Frohriep,
from unreason
protects people
Amendment
The Fourth
Faucett, 442 Mich
People v
and seizures.
able searches
way, “[t]he
another
157-158;
Stated
499 NW2d
depends on its reasonable
or seizure
of a search
lawfulness
393,]
[ 608
Snider,
[239
[People v]
ness.”
(2000)].
explained that
Supreme
has
Our
Court
NW2d
Fourth Amendment
seizure
of a
“[t]he reasonableness
justifies the intru
governmental
interest that
balances
arbitrary
right
free of
against
to be
an individual’s
sion
Faucett, supra at 158.
police interference.”
provides:
States Constitution
Amendment of the United
The Fourth
houses,
persons,
right
people
in their
to be secure
seizures,
effects, against
papers,
searches
unreasonable
issue,
violated,
upon probable
but
no
shall
shall not be
and Warrants
affirmation,
describing
cause,
particularly
supported Oath or
searched,
things
persons
hе seized.
place
and the
or
to he
provides:
Michigan Constitution
11 of article 1 of the
Section
*7
houses,
every person
papers
possessions
person,
of
The
and seizures. No
from unreasonable searches
shall be secure
any person
things
any place
shall
or to seize
or
to search
warrant
cause, sup-
them,
probable
describing
nor without
issue without
provisions
by
of this section shall
ported
affirmation. The
oath or
proceeding
any
criminal
bar from evidence
not he construed to
any
danger-
firearm, bomb, explosive
drug,
other
any
or
narcotic
any
curtilage
by peace
of
weapon,
a
officer outside
ous
seized
dwelling house in this state.
9
against
Michigan’s
prohibition
unreasonable searches
constitutional
protection
provide
as that
the same
is to he construed
and seizures
Constitution,
of the United States
the Fourth Amendment
secured
interpretation. People
impose
v
compelling
a different
reason to
absent
(2004).
392, 396;
Green,
App
363
677 NW2d
260 Mich
438
430
any police procedure
In order for
to have constitutional
implications,
search and
a
or
seizure
search
seizure must
Const,
place.
IV;
1963,
1,
have taken
US
Am
Const
art
11;
Mendenhall,
544, 554;
§ United
v
States
446 US
100 S
(1980)
1870;
2d
(opinion
Stewart, J.);
Ct
64 L Ed
497
of
Royer,
491, 498;
1319;
see also Florida
460
103
v
US
S Ct
(1983) (plurality opinion).
“Obviously, personal not all police- between intercourse men and persons. Only citizens involves ‘seizures’ of when officer,by physical authority, means force or show of way has in liberty some restrained the may of citizen we conclude that a ‘seizure’ has occurred”. Bostick, 434;
Accord Florida 501 2382; v US 111 S Ct (1991); Mendenhall, L115 Ed 2d supra 389 at 551-557. stated, Generally the test for what constitutes a whether, seizurе “in is view all the circumstances surrounding incident, person reasonable would have believed was not free leave.” INS v Delgado, 210, 215; 1758; US L S Ct 80 Ed 2d (1984), Mendenhall, quoting at 554 supra (Stewart, J.); Michigan Chesternut, 567, 573; 486 US 108 S Ct L (1988); 100 Ed 2d 565 Sasson, 257, 260-262; Mich App NW2d How- ever, in where person situations would have no desire leave, such where person seated bus, on a this test is not an accurate measure of the coercive *8 439 People Bolduc v op Opinion the Court a Rather, such “[i]n police.10 encounter with of an effect a reason- whether is inquiry situation, appropriate the officers’ to decline feel free would person able Bo- the encounter.” terminate otherwise or requests stated, have “We Court The Bostick stick, at 436. supra into whether, taking the crucial test that said before the en- surrounding circumstances all of the account ‘have communicated would counter, the conduct liberty at he was not person to a reasonable ” go about business.’ police presence ignore Chesternut, also at see supra 437, quoting Id. at L Ed 2d 1843; 155 626; 123 S Ct Texas, US v Kaupp 236, 242- Bloxson, App (2003); Court summa- The Bostick 244; 517 NW2d rized: that, to determine in order to the rule We adhere seizure, particular constitutes encounter
whether surrounding all the circumstances must consider court conduct would whether to determine encounter person person that to a reasonable communicated have requests or otherwisе the officers’ not free to decline applies to encounters That rule the encounter. terminate lobby, it airport city or in an place on a street take [Bostick, supra at on a bus. equally to encounters applies 439-440.] at place took talk encounter
Here, the knock and
special
garners
home
home,
person’s
and a
“
very
‘At the
core’
law.
consideration
a man to
right
Amendment
‘stands
Fourth
from
there
free
be
his own home
retreat
into
”
Kyllo United
intrusion.’
governmental
unreasonable
2d 94
2038; 150 L Ed
27, 31; 121 Ct
States,
S
533 US
10 Bostick,
Supreme Court stated
supra
the United States
‘free to
focusing
Bostick was
on whether
erred “in
the state corut
were intended
principle that those words
rather than on
leave’
capture.”
(2001), quoting
States,
Silverman v
United
365 US
*9
“
511;
(1961).
679;
81 S Ct
IV ANALYSIS On appeal, prosecution claims that “the [c]ircuit [c]ourt erred in affirming the [district [c]ourt’s order of dismissal.” In essence, prosecution’s position is that the district clearly court erred in finding that Com peau’s questioning of defendant concerning bulge in his pocket after defendant directed the officers to leave was inherently and, coercive therefore, constituted an illegal seizure of person. defendant’s We disagree.
Compeau’s testimony at the preliminary examina- tion established that two officers confronted defendant v Bolduc officеrs, themselves residence, identified informed defendant home while inside storing he was reason to believe they had permis- by denying responded Defendant marijuana. orally both requesting, and by sion to search ordered Compeau premises. leave the gesture, that gestured him defendant touch when to not defendant officers to get effort to him, an apparently toward however, officers leave, than home. Rather leave his in defendant’s bulge large to a their attention turned it. The explain rear and asked pocket down defen- patted Compeau also reveals evidence had no reason Compeau though even weapons dant for weapon. armed with thаt defendant was suspect the district say that evidence, we cannot this Given *10 circumstances, as that the finding in clearly erred court to leave and instead the failed police existed when they bulging a explain defendant to asking by persisted to leave By failing inherently coercive. were pocket, so, the police to do requested home when in control of the they that were suggested officers of defendant’s exercise accept not and would situation at the activity from further them right preclude home. “by officer when a
Further, a occurs “seizure” in authority, of has force or show physical means of Frohriep, a citizen.” liberty of way restrained some 20 n see also at quoting Terry, supra at supra 68-69; 649 NW2d Lewis, App 251 Mich “ (2002) the Fourth Amend under is ‘seized’ (person the person’s restrained a officer has ment when freedom”). in moment pivotal At the individual either could case, i.e., the when point present chose defy request, that requested or leave as not Compeau admonished the latter course. inquiry a new line of pursued then him and to touch 263 Mich Opinion of Court that message with defendant. What does send? The concluded, so, rightly district court we think that this was an offer of indicating “indirect force” “I going away were not until the information I get A person subject want.” who is the of that tactic in his in own home has no recourse. As is settled well self-defense, context of placе of the law there is no in See, retreat to when one is his own home. e.g., People Riddle, 116, 120-121, 134-135; NW2d (2002).11 a encounter, person Unlike in street such as defendant does have the option testing not whether he actually by is confined the police simply walking away. go Where was defendant to avoid the intrusion of the police his own At that upon property? point, defendant had everything done that was reasonably
11 Riddle, 134-135, supra Supreme explained: at our Court universally accepted It is is retreat factor in
determining killing necessary whether defensive when it dwelling: occurred in the accused’s “Regardless any general theory practi- as far to retreat justify turning upon cable taking before one can his assailant and self-defense, imposes duty upon life the law no to retreat one who, bringing difficulty, free from fault on a is attacked at or in dwelling theory Upon his or her own or home. that a man’s castle, right protect house is his that he has a it and those attack, within practically it from intrusion or the rule is universal person dwelling may is when a attacked in his own stand bay apparently and turn on and kill his this assailant if necessary protect great to save his own life or to himself from bodily 2d, 167, [Emphasis p [40 § harm. Am Jur 636.]” omitted.] *11 “ arising The rule has defended been as ‘an from instinctive feeling sacred, improper require that a is home and that it is to ” pursuit man to submit to from to his room room in own house.’ (1974) People Godsey, App 316, 319; NW2d 801 (citations omitted). Moreover, very person’s in a real sense a dwelling place primary refuge. person is his of aWhere is in his “castle,” simply place [Emphasis there is no to retreat. in safer original.] v Bolduc Opinion the Court police that the message convey the him to for possible his despite And in his home. welcome longer no were until are here was that we in return efforts, message the all answered you until have is not go, to which decide we not be ought home in his own A person questions. our being action without by police in that situation placed the circumstances judgment, In our seized. considered in defen person that a reasonable doubt here leave no frеe that he was not have believed would position dant’s the moreover, because home, and his go about home, that person action his police presence from his remove them ability to lacked the essentially surrounding the circumstances Considering all home. encounter, the fact that especially talk the knock and not leave home and did in defendant’s were the the gesture, request defendant’s despite to a reasonable have communicated conduct would the free to decline was not person person the encounter. terminate or otherwise requests officers’ liberty ignore not at was Clearly, defendant Bostick, supra. about his business. go prеsence conclude circumstances we under these Consequently, despite persistence officers’ in defen resulted terminate the encounter efforts to constitutional in violation of his being dant seized rights. here. The re- does not end
However, analysis our inherently coercive is whether maining question defen- seized entitles defendant was context which incriminating state- having relief of dant to the Defendant’s en- suppressed. marijuana ments and fact, by compromised relief titlement exhib- out, that defendant correctly points prosecution con- question Compeau’s to answer ited no reluctance verify quickly offered pocket, in his cerning bulge lot, to his car Compeau by taking his answer *12 444 263 430 Mich Opinion the of Court and made formally placed incriminating under arrest his lot, police voluntarily to the at the car statements police returned with the and turned over to the the Thus, in marijuana actually his freezer. the events that incriminated defendant at a time place point took in later was much than the events that transpired his during and, the and talk home initial knock encounter part, Moreover, at a different location. all the incriminat- ing period events occurred when during there was no any indication of a formal or subsequent arrest coercive police. Nevertheless, conduct by we conclude that suppression defendant is entitled to the his inсrimi- of nating marijuana. statements and the Defendant’s con- by duct of apparent cooperation answering ques- tion and offering to his car accompany Compeau to lot was the product the seizure of person his resulted from the the police depart failure of from residence, and ultimately led to the retrieval of the marijuana and making self-incriminating statements. Because this evidence from ensued improper failing officers’ conduct to leave when requested, they properly suppressed were as the fruit illegal seizure when the police officers failed requested to leave the house as by defendant. Wong States, 407; Sun United 371 US 83 S Ct (1963) L Ed 2d (suppression unlawfully оb- required tained evidence when unlawful seizure sufficiently purged); attenuated or v Cart- People (1997) wright, 550, 557-558; NW2d (remedy for violation of the Fourth right Amendment against unreasonable searches and is suppres- seizures evidence). sion of the unlawfully obtained V CONCLUSION sum, while the police are free to employ knock and talk procedure, supra, no Frohriep, they right have Bolduc Dissenting Opinion O’Connell, J. consent, some in a home without absent to remain justification. person A legal particularized other when the for of the Fourth Amendment purposes seized house follow- person’s fail to leave promptly so, legal do absent person’s request ing person’s to remain without basis for *13 order affirm circuit court’s Accordingly, we consent. case. of this affirming the district court’s dismissal Affirmed.
DONOFRIO, J., concurred. respectfully I dissent. For (dissenting).
O’CONNELL,
J.
occur, defendant
a Fourth Amendment violation to
No
constructively
either
or
seized.1
physically
must be
felt free
here,
occurred
because defendant
to
seizure
them
police
off his contact
and ask
to
break
with
initially
majority
The
his home—in fact he
did so.
leave
that a three to four minute conversation with
concludes
of
in
concerning
bulge money
defendant
a
I
person.
amounted
a
of defendant’s
pocket2
to
seizure
I would
the lower court’s decision.
disagree.
reverse
police
into his home
Because defendant allowed
investigation,
in
initially
participate
offered to
their
Shankle,
227 was not
defendant
seized.
police
may
agree
majority
use the “knock
I
with the
that
officers
not
merely
procedure
bulldog
to
talk”
a confession out of someone who
However,
request
speak
officers
I
complies
with
in his home.
with
disagree
majority
reflect such an
with the
the facts
this case
by police.
improper effort
$6,500
bulge
pocket
in cash. Much of the
in defendant’s
was
The
spurious ex
concerned defendant’s
officers’ discussion with defendant
pocket. my opinion, any
carrying $6,500
planation
cash in his
for
in
grow suspicious
pursue
this avenue of
officer
reasonable
would
tip
dealing
following up
questioning
on а
the defendant
when
narcotics.
App
Opinion by
Dissenting
O’Connell,
J.
690, 693;
did the
officers conduct a search
visit,
prohibition
initial
so the Fourth Amendment’s
against
simply
unreasonable
searches and seizures
in
apply
primary
to the
case. Id.
does
issue
this
Moreover, the
touch-
majority overlooks
essential
may
whether
prosecutor
stone for
or
use
information or
knock
suspect provides
consent
A suspect
and talk scenario—voluntariness.
vol-
who
untarily
police ques-
offers information in
response
not, by definition, knuckling
tioning
under to coer-
cive
tactics. It stands to
police may
reason
use
properly
any
garnered
information
from a consen-
dialogue
sual
such
one thе police
chief initiated
case.3 Id.
this
any
record lacks
evidence that
officers
to leave
or
refused
defendant’s home
threat-
otherwise
ened
remain
until
provided
there
a con-
In fact,
fession.
police immediately
left the home at
defendant’s request when he offered to take
them his
*14
car dealership.
merely
The
chief
asked one more
after
question
defendant asked the officers to leave and
began ushering
door,
them to the
I can
legal
find no
authority for the
that an officer
proposition
must cease
all questioning
leaving
lawfully
while
a
home.4
entered
I agree that a
scenario which an officer persistently
stop asking
I
note
defendant never asked the
officers to
questions;
only
him
he
them
asked
to leave.
majority’s
contrary
placing
gag
The
to the
conclusion
amounts to
a
order on officers as
soon as
homeowner asks them to leave. The
relationship
eject
interjection
between an
to
effort
the officers and their
questions
Again,
of more
is tenuous
best.
if the officers had refused to
any
leave until
received information or had exerted
form of
other
coercion,
certainly
my finding
those additional
would
facts
affect
However,
voluntarily.
timing
acted
defendant
the
and other circum
surrounding
wrongdoing,
stances
this incident exonerate the officers of
imposed
heavy
so the district court erred when it
the
sanction of
suppression. People Goldston,
being caught wrongdoing undoubtedly judg in his clouded defendant’s compelled ment and him to account for his funds and lead officers away house, compulsion pricked from the source this awas conscience, Therefore, majority the state. I am convinced imputes impulses source, wrong to the and errs in the process.