PEOPLE OF MI V JERRY JOSEPH BOLDUC
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
August 24, 2004
9:20 a.m.
Plaintiff-Appellant,
v
No. 244970
Genesee Circuit Court
LC No. 01-071102-AR
JERRY JOSEPH BOLDUC,
Defendant-Appellee.
Official Reported Version
Before: Hoekstra, P.J., and O'Connell and Donofrio, JJ.
O'CONNELL, J. (dissenting).
I respectfully dissent. For a Fourth Amendment violation to occur, defendant must be
either physically or constructively seized.1 No seizure occurred here, because defendant felt free
to break off his contact with the police and ask them to leave his home—in fact he initially did
so. The majority concludes that a three to four minute conversation with defendant concerning a
bulge of money in defendant's pocket2 amounted to a seizure of defendant's person. I disagree. I
would reverse the lower court's decision.
Because defendant allowed the police into his home and initially offered to participate in
their investigation, defendant was not seized. People v Shankle, 227 Mich App 690, 693; 577
NW2d 471 (1998). Nor did the officers conduct a search of the premises during their initial visit,
so the Fourth Amendment's prohibition against unreasonable searches and seizures simply does
1
I agree with the majority that police officers may not use the "knock and talk" procedure to
bulldog a confession out of someone who merely complies with a request to speak with officers
in his home. However, I disagree with the majority that the facts of this case reflect such an
improper effort by police.
2
The bulge in defendant's pocket was $6,500 in cash. Much of the officers' discussion with
defendant concerned defendant's spurious explanation for carrying $6,500 in cash in his pocket.
In my opinion, any reasonable police officer would grow suspicious and pursue this avenue of
questioning when following up on a tip that the defendant was dealing narcotics.
-1-
not apply to the primary issue in this case. Id. Moreover, the majority overlooks the essential
touchstone for whether the police or prosecutor may use information or consent a suspect
provides in a knock and talk scenario—voluntariness. A suspect who voluntarily offers
information in response to police questioning is not, by definition, knuckling under to coercive
police tactics. It stands to reason that police may properly use any information garnered from a
consensual dialogue such as the one the police chief initiated in this case.3 Id.
The record lacks any evidence that police officers refused to leave defendant's home or
otherwise threatened to remain there until defendant provided a confession. In fact, the police
immediately left the home at defendant's request when he offered to take them to his car
dealership. The police chief merely asked one more question after defendant asked the officers
to leave and began ushering them to the door, and I can find no legal authority for the
proposition that an officer must cease all questioning while leaving a lawfully entered home.4 I
agree that a scenario in which an officer persistently questions a suspect while obstinately
refusing to leave the suspect's home could qualify as trespassing, an unreasonable seizure of the
home, and a coercive tactic worthy of the suppression sanction. MCL 750.552; US Const, Am
IV; Wong Sun v United States, 371 US 471, 485-486; 83 S Ct 407; 9 L Ed 2d 441 (1963).
However, none of these classifications applies to this case.
Rather than stand mute or reassert his desire for the officers' departure, defendant
voluntarily, albeit dishonestly, answered the one last question the police chief posed. After
defendant began the charade of going to his dealership, he did not express any desire to simply
return to his house and end his participation with the investigation. In fact, unlike the typical
"knock and talk" scenario, the officers left the home without obtaining defendant's consent to
search the house or any valuable information that might lead to a warrant. Swingle & Zoellner,
"Knock and talk" consent searches: If called by a panther, don't anther, 55 J Mo B 25, 26
(1999). Instead, they only gained defendant's consent to further participate in the investigation,
which eventually garnered them a voluntary confession. In short, defendant failed to bear his
burden of presenting any evidence that the police coerced his confession, or anything else, from
him. Rather, defendant's invitation to enter the home, his response to the chief 's question, his
agreement to accompany the officers to his dealership, and, most importantly, his confession to
3
I note that defendant never asked the police officers to stop asking him questions; he only asked
them to leave.
4
The majority's conclusion to the contrary amounts to placing a gag order on officers as soon as
a homeowner asks them to leave. The relationship between an effort to eject the officers and
their interjection of more questions is tenuous at best. Again, if the officers had refused to leave
until they received information or had exerted any other form of coercion, those additional facts
would certainly affect my finding that defendant acted voluntarily. However, the timing and
other circumstances surrounding this incident exonerate the officers of wrongdoing, so the
district court erred when it imposed the heavy sanction of suppression. People v Goldston, 470
Mich 523; 682 NW2d 479 (2004).
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the crime charged,5 were all unforced and voluntary actions.6 Because the majority finds
otherwise by reading nonexistent facts into this scant record, I must dissent.
/s/ Peter D. O'Connell
5
While not essential to my disposition of the case because I would find defendant's responses to
the chief voluntary, I must also note that the confession in this case is not "fruit of the poisonous
tree." The circumstances between defendant's confession and the chief 's questioning in the
house were separated by an extended period. Any pressure defendant felt to cooperate because
he could not remove the officers from his home ended when he lured them away from the house.
Under these circumstances, the link between the original confrontation and the confession was
too attenuated to require suppression. Wong Sun, supra at 487-488.
6
I also agree with the majority that defendant probably felt pressure to comply with the officers'
requests, but I believe that pressure stemmed from the knowledge that he had hidden several
pounds of marijuana a short distance from where the officers stood. While this anxiety over
being caught in his wrongdoing undoubtedly clouded defendant's judgment and compelled him
to account for his funds and lead the officers away from the house, the source of this compulsion
was a pricked conscience, not the state. Therefore, I am convinced that the majority imputes
defendant's impulses to the wrong source, and errs in the process.
-3-
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