“Constructive entry” rejected in Michigan on the facts, acknowledging the rule elsewhere

Michigan rejects contructive entry from repeated requests by the police to enter. People v. Gillam, 479 Mich. 253, 734 N.W.2d 585 (2007):

At issue in this case is whether repeated requests by police officers for defendant to come out of his apartment constituted constructive entry into his home for Fourth Amendment purposes, thereby invalidating his arrest without a warrant and rendering subsequently obtained evidence inadmissible. We conclude that even if we were to adopt the constructive entry doctrine recognized by several federal circuit courts of appeals, defendant in this case would fail to establish that the police constructively entered his home in violation of his Fourth Amendment right to privacy. Accordingly, we reverse the judgment of the Court of Appeals that held to the contrary and remand this case to the trial court for further proceedings consistent with this opinion.

. . .

Hence, Payton prohibited only the actual physical entry by the police into a suspect’s home. Since Payton, however, the Sixth Circuit Court of Appeals has expanded the bar against actual physical entry to encompass situations involving constructive entry, which occurs when a suspect leaves his or her home in response to coercive police conduct. United States v Morgan, 743 F.2d 1158, 1166 (CA 6, 1984). The Third, Ninth, and Tenth circuit courts of appeals have likewise recognized the doctrine of constructive entry. Sharrar v Felsing, 128 F.3d 810, 819 (CA 3, 1997); United States v Al-Azzawy, 784 F.2d 890, 893 (CA 9, 1985); United States v Maez, 872 F.2d 1444, 1450 (CA 10, 1989).

However, several other federal circuit courts of appeals have declined to adopt the doctrine, and the United States Supreme Court has yet to address the issue. United States v Carrion, 809 F.2d 1120, 1128 (CA 5, 1987); United States v Berkowitz, 927 F.2d 1376, 1386 (CA 7, 1991); Knight v Jacobson, 300 F.3d 1272, 1277 (CA 11, 2002). Although state courts are bound by United States Supreme Court decisions construing federal law, they are not similarly bound by the decisions of the lower federal courts, and when there is a conflict of authority among the lower federal courts, this Court is free to follow the authority it deems the most appropriate. Abela v. GMC, 469 Mich. 603, 606; 677 N.W.2d 325 (2004). Indeed, even when there is no conflict among the lower federal courts, we are free to follow or reject their authority. Id. at 607.

. . .

[After distinguish cases:] Moreover, while defendant claims he was coerced into leaving his apartment by the repeated requests of the officers, he fails to indicate how a second request that he step out of the apartment is any more coercive than a single request. And, as noted in Thomas, an officer’s request that an individual step out of his house to speak with the officer is not coercive. Additionally, defendant failed to identify any specific statements of compulsion.

D.C. App. holds that a possible hand-to-hand transaction was ambiguous enough that it did not provide probable cause for a search. Shelton v. United States, 929 A.2d 420 (D.C. App. 2007):

Nonetheless, in the present case, even viewing the evidence of record in the light most favorable to the government, we are not satisfied that an adequate foundation was developed to show that Officer Prade could reasonably believe that there was a sufficient probability that criminal activity had occurred based on the activities he observed. Before ordering appellant’s arrest, Officer Prade saw: (1) appellant sitting in a car in a convenience store parking lot, (2) a pedestrian holding currency approach appellant’s driver’s side window and give that money to appellant, (3) the pedestrian receive back from appellant some kind of “small object,” and (4) both parties depart the scene. Although Officer Prade’s suspicions may indeed have been reasonably raised by the conduct he observed to justify a Terry stop, we cannot conclude that probable cause existed on the record before us.

Plaintiff’s arrest for not complying with an order to “get down” where he picked up a gun by the barrel and pushed it in the direction of an officer was justified, and summary judgment granted the officers. Kepley v. Lantz, 2007 U.S. Dist. LEXIS 51944 (N.D. Ohio July 18, 2007).*