PEOPLE OF MI V LARRY EUGENE FROHRIEP
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
October 12, 2001
9:00 a.m.
Plaintiff-Appellee,
v
No. 223755
St. Joseph Circuit Court
LC No. 96-008412-FH
LARRY EUGENE FROHRIEP,
Defendant-Appellant.
Updated Copy
December 21, 2001
Before: Collins, P.J., and Hoekstra and Gage, JJ.
HOEKSTRA, J.
After a bench trial, the trial court convicted defendant of possession with intent to deliver
marijuana, MCL 333.7401(2)(d)(iii), and sentenced him to serve six months in jail.1 On appeal
as of right, defendant challenges the constitutionality of the police technique and of the search
that yielded the evidence used to convict him. Defendant argues that the "knock and talk"
procedure that the police employed is unconstitutional, and even if it is not, the search was
unreasonable because defendant did not give consent. We affirm.
Before trial, the trial court heard defendant's motion to suppress the evidence that the
police seized after approaching defendant on his property and asking to "look around." At the
suppression hearing, the police officers involved in the investigation and defendant testified.2
The officers' testimony revealed that they had information that defendant may have had
controlled substances on his property. Because the information was not sufficient to obtain a
search warrant, they opted to employ a knock and talk procedure. The officers described the
procedure as one where they go to a suspect's residence, engage the individual in a conversation,
and attempt to obtain consent to conduct a search.
In this case, the officers went to defendant's residence and two of them encountered
defendant in an open area near a pole barn. The two officers identified themselves, told
1
The trial court stayed defendant's sentence pending this appeal.
2
One of the officers testified by the admission by stipulation of his preliminary examination
testimony.
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defendant that they had information that defendant might have controlled substances on his
property, and requested permission to conduct a search. Exactly how the officer phrased the
request and what level of consent defendant gave were disputed at the hearing. However, it was
not disputed that after this initial encounter the officers entered the pole barn and one officer
looked around while the other officer remained with defendant to obtain some additional
background information. A few minutes later, the officer looking around the pole barn yelled,
"Bingo." Defendant and the other officers went to where that officer was searching and saw that
he had located in a freezer what appeared to be several pounds of marijuana. Defendant stated
that the marijuana was for his personal use. Next, one of the officers said to defendant that he
wanted to look in a trailer. Defendant indicated that it was locked and he would have to get the
key. After defendant retrieved the key, the officer entered the trailer and discovered scales.
Defendant indicated that the scales were used for weighing marijuana. At that point, defendant
said something to the effect of "Wait, wait, just a minute," and the officers stopped the search.
Then, one of the officers drafted a written consent to search form and presented it to defendant,
but he refused to sign it. Thereafter, the officers obtained a search warrant on the basis of what
they had observed before defendant stopped the search.
Months after the hearing, the trial court issued a lengthy written opinion denying
defendant's motion to suppress. The trial court declined defendant's invitation to hold that the
knock and talk procedure that the police used was unconstitutional. Further, the trial court held
that defendant had consented to the search as conducted by the police officers. In its ruling, the
trial court made extensive findings regarding the disputed factual issues. The trial court found
that defendant's consent was voluntary, not coerced, that defendant placed no limitation on the
scope of the search, and that the knock and talk procedure was neither abusive per se nor
inherently unconstitutional. Thereafter, defendant waived his right to a jury trial. Following a
bench trial, defendant was convicted of possession with intent to deliver marijuana.
On appeal, defendant first challenges the trial court's ruling that the knock and talk
procedure that the police used in this case is constitutional. Initially, we note that defendant does
not specify whether his challenge to the constitutionality of the knock and talk procedure is under
the Michigan Constitution or the United States Constitution. However, this lack of information
does not affect our analysis. "Both the United States and the Michigan Constitutions guarantee
the right against unreasonable searches and seizures." People v Snider, 239 Mich App 393, 406;
608 NW2d 502 (2000), citing US Const, Am IV, Const 1963, art 1, § 11, and In re Forfeiture of
$176,598, 443 Mich 261, 264-265; 505 NW2d 201 (1993); see also People v Kazmierczak, 461
Mich 411, 417; 605 NW2d 667 (2000). Absent a compelling reason to impose a different
interpretation, the Michigan Constitution is construed to provide the same protection as that
secured by the Fourth Amendment. People v Levine, 461 Mich 172, 178; 600 NW2d 622 (1999).
We review constitutional questions de novo. People v Conat, 238 Mich App 134, 144; 605
NW2d 49 (1999).
Defendant frames his argument challenging the constitutionality of the knock and talk
procedure by comparing this investigative tool to other areas of search and seizure law and by
making policy arguments, all with a view toward undermining the reasonableness of allowing the
police to utilize this technique. In particular, defendant argues that the special sanctity of the
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home and the lack of established procedures renders any knock and talk investigation
unreasonable. We find these arguments unpersuasive because none of them addresses the use of
this investigative procedure within a proper constitutional framework.3
Generally, the knock and talk procedure is a law enforcement tactic in which the police,
who possess some information that they believe warrants further investigation, but that is
insufficient to constitute probable cause for a search warrant, approach the person suspected of
engaging in illegal activity at the person's residence (even knock on the front door), identify
themselves as police officers, and request consent to search for the suspected illegality or illicit
items. See, e.g., United States v Hardeman, 36 F Supp 2d 770, 777 (ED Mich, 1999); State v
Smith, 346 NC 794, 796; 488 SE2d 210 (1997); United States v Zertuche-Tobias, 953 F Supp
803, 829 (SD Tex, 1996). From our research, it appears that Michigan appellate courts have not
addressed the constitutionality of police use of the knock and talk procedure.
We decline defendant's request to hold that the knock and talk procedure is
unconstitutional because defendant points to no binding precedent, nor have we found any,
prohibiting the police from going to a residence and engaging in a conversation with a person.
See People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000); more specifically, see State
v Ferrier; 136 Wash 2d 103, 109-110; 960 P2d 927 (1998); Zertuche-Tobias, supra. We
conclude that in the context of knock and talk the mere fact that the officers initiated contact with
a citizen does not implicate constitutional protections. It is unreasonable to think that simply
because one is at home that they are free from having the police come to their house and initiate a
conversation. The fact that the motive for the contact is an attempt to secure permission to
conduct a search does not change that reasoning. We find nothing within a constitutional
framework that would preclude the police from setting the process in motion by initiating contact
and, consequently, we hold that the knock and talk tactic employed by the police in this case is
constitutional.4
That is not to say, however, that the knock and talk procedure is without constitutional
implications. Anytime the police initiate a procedure, whether by search warrant or otherwise,
the particular circumstances are subject to judicial review to ensure compliance with general
constitutional protections. Accordingly, what happens within the context of a knock and talk
contact and any resulting search is certainly subject to judicial review. For example, a person's
Fourth Amendment right to be free of unreasonable searches and seizures may be implicated
where a person, under particular circumstances, does not feel free to leave or where consent to
3
Contrary to defendant's suggestion, we do not find the investigative knock and talk procedure
sufficiently similar to the care-taking function of an inventory search to make a viable
comparison.
4
We note that when utilizing the knock and talk procedure, the police are "merely asking for
permission to search a person's home, recognizing and risking that a refusal would not only alert
the suspect that he is being watched but would quite likely leave the police empty handed."
Swingle & Zoellner, "Knock and talk" consent searches: If called by a panther, don't anther, 55
J Mo B 25 (1999).
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search is coerced. Thus, whenever the procedure is utilized, ordinary rules that govern police
conduct must be applied to the circumstances of the particular case. Consequently, we review
the circumstances of this case against general protections guaranteed by the constitution.
The Fourth Amendment protects people from unreasonable searches and seizures.5
People v Faucett, 442 Mich 153, 157-158; 499 NW2d 764 (1993). Stated another way, "[t]he
lawfulness of a search or seizure depends on its reasonableness." Snider, supra at 406. Our
Supreme Court has explained that "[t]he reasonableness of a Fourth Amendment seizure balances
the governmental interest that justifies the intrusion against an individual's right to be free of
arbitrary police interference." Faucett, supra at 158.
In order for any police procedure to have constitutional search and seizure implications, a
search or seizure must have taken place. US Const, Am IV; Const 1963, art 1, § 11; United
States v Mendenhall, 446 US 544, 554; 100 S Ct 1870; 64 L Ed 2d 497 (1980) (opinion of
Stewart, J.); see also Florida v Royer, 460 US 491, 498; 103 S Ct 1319; 75 L Ed 2d 229 (1983)
(plurality opinion). As the Sixth Circuit Court of Appeals explained, "[t]he safeguards of the
Constitution, with respect to police/citizen contact, will vest only after the citizen has been
seized." United States v Richardson, 949 F2d 851, 855 (CA 6, 1991). The Sixth Circuit Court of
Appeals agreed that "'voluntary cooperation of a citizen in response to non-coercive questioning
[raises no constitutional issues.]'" Id., quoting United States v Morgan, 936 F2d 1561, 1566 (CA
10, 1991).
In Terry v Ohio, 392 US 1, 19, n 16; 88 S Ct 1868; 20 L Ed 2d 889 (1968), the United
States Supreme Court stated:
Obviously, not all personal intercourse between policemen and citizens
involves "seizures" of persons. Only when the officer, by means of physical force
or show of authority, has in some way restrained the liberty of a citizen may we
conclude that a "seizure" has occurred.
Accord Florida v Bostick, 501 US 429, 434; 111 S Ct 2382; 115 L Ed 2d 389 (1991);
Mendenhall, supra at 551-557. In INS v Delgado, 466 US 210, 215; 104 S Ct 1758; 80 L Ed 2d
247 (1984), the United States Supreme Court adopted the test for what constitutes a seizure that
Justice Stewart articulated in Mendenhall, supra at 554, that being "if, in view of all the
circumstances surrounding the incident, a reasonable person would have believed that he was not
5
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probably cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized.
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free to leave."6 Accord Florida v Rodriguez, 469 US 1; 105 S Ct 308; 83 L Ed 2d 165 (1984);
People v Sasson, 178 Mich App 257, 260-262; 443 NW2d 394 (1989); People v Daniels, 160
Mich App 614, 617-620; 408 NW2d 398 (1987).
Here, the knock and talk procedure that the police utilized involved police officers
initiating an ordinary citizen contact. The police action, i.e., approaching defendant as he was
standing in his yard, did not amount to a seizure of defendant. The police simply identified
themselves, told defendant they had been informed that he had controlled substances on his
property, and asked defendant's permission to "look around." There is no indication that
defendant was not free to end the encounter. Indeed, the testimony at the suppression hearing
does not support the notion that defendant felt threatened or coerced. Thus, the initial contact
with defendant did not have any constitutional implications on the basis of a seizure because
there is no indication that any seizure of defendant occurred. Although we can envision a
situation where the police conduct when executing the knock and talk procedure indicates an
unreasonable seizure or results in an unreasonable search, the facts in the present record do not
suggest such a situation.
Next, defendant argues that the trial court erred in concluding that defendant gave consent
to search his pole barn.7 In particular, defendant claims that his reasonable expectation did not
encompass the type and location of search that the police carried out, that he was not given an
opportunity to revoke his consent, and that to the extent he gave consent it was coerced.
We review a trial court's findings of fact for clear error, giving deference to the trial
court's resolution of factual issues. People v Farrow, 461 Mich 202, 208-209; 600 NW2d 634
(1999), quoting People v Burrell, 417 Mich 439, 448-449; 339 NW2d 403 (1983). "A finding of
fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a
definite and firm conviction that a mistake has been made." People v Swirles (After Remand),
218 Mich App 133, 136; 553 NW2d 357 (1996). We overstep our review function if we
substitute our judgment for that of the trial court and make independent findings. Farrow, supra
at 209. However, we review de novo the trial court's ultimate decision on a motion to suppress.
People v Williams, 240 Mich App 316, 319; 614 NW2d 647 (2000).
With regard to consent, this Court has explained:
6
Specifically, the United States Supreme Court, quoting Mendenhall, supra at 554, stated:
What has evolved from our cases is a determination that an initially
consensual encounter between a police officer and a citizen can be transformed
into a seizure or detention within the meaning of the Fourth Amendment, "if, in
view of all the circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave." [Delgado, supra at 215.]
7
It is undisputed that the police were conducting a search without a warrant when they found the
marijuana that defendant sought to suppress.
-5-
While warrants are generally required before the police may conduct
searches, Fourth Amendment rights are waivable and a defendant may always
consent to a search of himself or his premises. [People v] Goforth, [222 Mich
App 306,] 309[; 564 NW2d 526 (1997)]. A trial court must review the totality of
the circumstances to decide if the consent to search was valid. Id. The trial
court's decision regarding the validity of the consent to search is reviewed by this
Court under a standard of clear error. Id. at 310.
The consent exception to the warrant requirement allows a search and
seizure when consent is unequivocal, specific, and freely and intelligently given.
People v Kaigler, 368 Mich 281, 294; 118 NW2d 406 (1962); People v Malone,
180 Mich App 347, 355; 447 NW2d 157 (1989); see generally Schneckloth v
Bustamonte, 412 US 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973). The validity of
the consent depends on the totality of the circumstances. Goforth, supra at 309.
[People v Marsack, 231 Mich App 364, 378; 586 NW2d 234 (1998).]
Also, consent may be limited in scope and may be revoked. People v Powell, 199 Mich App
492, 496-499; 502 NW2d 353 (1993). "'The standard for measuring the scope of a suspect's
consent under the Fourth Amendment is that of 'objective' reasonableness—what would the
typical reasonable person have understood by the exchange between the officer and the suspect.'"
Mancik v Racing Comm'r, 236 Mich App 423, 430; 600 NW2d 423 (1999), quoting Florida v
Jimeno, 500 US 248, 251; 111 S Ct 1801; 114 L Ed 2d 297 (1991).
Here, the trial court addressed and resolved against defendant the issues he raises on
appeal regarding the nature and extent of consent. The trial court found that defendant "both by
his words and his actions explicitly and implicitly consented" to the search that the police
conducted. Further, the trial court concluded that "[t]here was nothing in the description of the
incident by any witness including defendant that [the] officers were coercive or demanding." The
trial court also addressed whether defendant consented to the type and location of the search that
the officers conducted. The trial court found that defendant placed no limitation on the scope of
the search and that under the circumstances presented in this case, a "typical reasonable person"
would understand that the police intended to search for controlled substances on defendant's
premises in any place that the controlled substances might be found. Having examined the
record in the present case, we find no clear error in the trial court's findings. Farrow, supra.
Finally, defendant raises for the first time on appeal his claim that the officers prevented
him from having the opportunity to revoke his consent, and thus it is unpreserved. People v
Grant, 445 Mich 535, 546; 520 NW2d 123 (1994); People v Stacy, 193 Mich App 19, 28; 484
NW2d 675 (1992). Having reviewed the record and the circumstances on which defendant
relies, we find defendant's claim without merit. Defendant has not established outcomedeterminative plain error. People v Carines, 460 Mich 750, 763-764, 774; 597 NW2d 130
(1999).
Affirmed.
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/s/ Joel P. Hoekstra
/s/ Jeffrey G. Collins
/s/ Hilda R. Gage
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