W.D.Mich.: Police wandering rural property for an hour was invalid knock and talk

Officers came to defendant’s rural property to do a knock and talk and “lingered” for an hour wandering around. They obviously made a decision to search before they got there, and their actions were that of searching officers and the knock and talk was really just a pretext to wander defendant’s property. United States v. Ferguson, 2014 U.S. Dist. LEXIS 115486 (W.D. Mich. August 20, 2014):

The government contends that Ferguson voluntarily consented to showing the police detectives the growing marijuana in the garage and the processed marijuana in the home and the RV (Dkt 38 at 10). The government further argued at the motion hearing that the hour the police detectives spent at Defendants’ residence qualified as a permissible “knock and talk,” claiming that the officers were “not searching anything” during that first hour (7/24/14 Motion Hrg. Tr. at 33).

The government’s arguments lack merit.

As noted, a “knock and talk” is premised on the implicit license that permits a visitor to “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Jardines, 133 S. Ct. at 1415. Relevant here is the Supreme Court’s additional observation that “the background social norms that invite a visitor to the front door do not invite him there to conduct a search.” Id. at 1416. “It is not a Fourth Amendment search to approach the home in order to speak with the occupant, because all are invited to do that… But no one is impliedly invited to enter the protected premises of the home in order to do nothing but conduct a search.” Id. at 1416 n.4. In Jardines, for example, the officer’s entry into the curtilage violated the Fourth Amendment because his “behavior objectively reveal[ed] a purpose to conduct a search, which is not what anyone would think he had license to do.” Id. at 1417.

Here, too, the police detectives’ actions and inquiries objectively reveal a purpose to conduct a search to support or contradict the information they had received of an illegal marijuana grow. Although the government claims that the police detectives were “not searching” the buildings they entered during the hour they spent at Defendants’ residence, just “knocking and talking,” the Supreme Court instructs that if “‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, a ‘search’ within the original meaning of the Fourth Amendment has ‘undoubtedly occurred.'” Jardines, 133 S. Ct. at 1414 (quoting United States v. Jones, __ U.S. ___; 132 S. Ct. 945, 950 n.3 (2012)). The record in this case leaves the Court with no doubt that the detectives were “obtaining information” when they entered Defendants’ garage, RV and residence, areas where privacy expectations are the most heightened.