Sixth Circuit holds that Michigan police officers are not in privity with the prosecuting authority for purposes of preclusive effect of a state court judgment where a state court suppresses a search and the state defendant then sues in federal court. Police went to the plaintiff’s house after arresting a DWI who said she was drinking at the plaintiff’s house and there were minors there. Police went to the house and got no answer at the front door. They went around to the back deck and looked in a back door and saw a young man with blood on his hands and clothes apparently passed out on the couch, and he did not respond to knocking or shining flashlights in his face. Officers got access to a car in the driveway and used the garage door opener to get in. Nothing was wrong with the people inside, but they were all minors charged with minor in possession. The court went to great lengths to examine the four Dunn factors to determine that a deck attached to a house with a hot tub in it was a part of the curtilage, something that should have been treated as a given. The officers conducted a knock and talk at the front door, reasonably believing somebody was at home. When there was no answer, they could go to the back door, even though it was part of the curtilage. Seeing the blood justified entry. “That reasonable belief was a sufficient basis for entering the Hardesty residence without a warrant or consent. Since the exigent circumstances exception to the warrant rule applied, the officers did not violate the Fourth Amendment when they entered the Hardesty home.” Hardesty v. Hamburg Twp., 461 F.3d 646 (6th Cir. September 1, 2006):
1. Curtilage
. . .
Since the back deck directly abuts the house, the first factor of proximity to the home clearly weighs in favor of finding the back deck to be within the home’s curtilage. The second factor is somewhat less clear. While there is no fence enclosing the Hardesty yard or property, there is a line of pine trees along the back of the property and the sides of the property appear to be bounded by trees as well. There is also a railing around the deck itself. The third factor weighs in favor of finding the back deck to be curtilage. There was a hot tub built into the deck and the Hardestys frequently kept a grill and table out on the porch as well. The Sixth Circuit has held the presence of pruned trees, a picnic table, and firepit to be sufficient to indicate that an area was “used for the activities and privacies of domestic life.” Widgren v. Maple Grove Township, 429 F.3d 575, 582 (6th Cir. 2005). The presence of space for gardening and hanging laundry out to dry has also been found to weigh in favor of finding an area to be curtilage. United States v. Jenkins, 124 F.3d 768, 773 (6th Cir. 1997). Like gardening and doing laundry, using a hot tub is an activity which is associated with the activities and privacies of domestic life. The fourth factor also weighs in favor of finding the back deck to be curtilage. The placement of the deck directly behind the house protects the deck from being visible to people passing by. See Jenkins, 124 F.3d at 773 (observing that the placement of the back yard behind the house naturally protected it from the view of passers by on the only public road adjoining the property). The testimony in the record that neighbors could see the back deck through the rows of pine trees along the back of the Hardestys’ yard does not undermine this conclusion. An area can be curtilage even where neighbors have a view of the area. See Daughenbaugh v. Tiffin, 150 F.3d 594, 600-01 (6th cir. 1998) (holding that a home’s backyard was curtilage in spite of evidence that neighbors could see at least a portion of the yard).
Consideration of the Dunn factors indicates that the Hardestys’ back deck is part of the home’s curtilage. This conclusion is further supported by the line of Sixth Circuit cases holding that the backyard of a home is part of the curtilage. Widgren, 429 F.3d at 582; Daughenbaugh, 150 F.3d at 601 (“The backyard and area immediately surrounding the home are really extensions of the dwelling itself.”); ….
2. Knock and Talk
. . .
We adopt an approach similar to those taken by our sister circuits and hold that the officers’ decision to proceed around the house to seek out a back door was within the scope of the knock and talk investigative technique already recognized in this circuit. Police officers are permitted to enter private property and approach the front door in order to ask questions or ask for consent to search the premises. But knocking at the front door will not always result in police officers being able to initiate the permitted conversation. The most obvious example is where nobody is at home. Even where someone is at home, knocking at the front door may go unheard. When the circumstances indicate that someone is home and knocking at the front door proves insufficient to initiate a conversation with the person sought, officers should not be categorically prevented from carrying out their investigative function. Therefore, we hold that where knocking at the front door is unsuccessful in spite of indications that someone is in or around the house, an officer may take reasonable steps to speak with the person being sought out even where such steps require an intrusion into the curtilage. In this case, there were indications that someone was present within the Hardesty home, knocking at the front door proved unsuccessful, proceeding around the house and onto the back deck was a reasonable step, and that step was directed towards initiating a conversation with the person or persons in the house. Therefore, the Hamburg officers’ entry into the curtilage in order to effectuate the knock and talk investigative technique did not violate Plaintiffs’ Fourth Amendment rights.
Defendant’s house was being searched by consent for a fugitive, and officers knew that defendant was a felon. Officers testified that they found a gun under the bed, but defendant said it was between the mattress and box springs. Since the credibility determination went to the officers, the search did not exceed the scope of consent. United States v. Flores, 193 Fed. Appx. 597 (6th Cir. August 29, 2006)* (unpublished).
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
