Order Michigan Supreme Court
Lansing, Michigan
November 28, 2005 Clifford W. Taylor,
Chief Justice
129192 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellant, Stephen J. Markman,
Justices
v SC: 129129
COA: 256878
Livingston CC: 04-014120-FH
DENISE LOUISE POWELL,
Defendant-Appellee.
_________________________________________/
On order of the Court, the application for leave to appeal the June 7, 2005
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals and
REMAND this case to that court for reconsideration and application of the four-factor
test for resolving curtilage questions detailed in United States v Dunn, 480 US 294, 301;
107 S Ct 1134; 94 L Ed 2d 326 (1987).
CORRIGAN, J., concurs and states as follows:
I concur in the order to remand. I write separately to highlight a problem with the
Court of Appeals analysis under review. I also write to point out a conflict between the
panel’s opinion and another unpublished Court of Appeals opinion, as well as a contrary
published federal district court case approving identical police behavior in Hamburg
Township.
In this case, the police received an anonymous tip that marijuana was being grown
at defendant’s house. An officer went to defendant’s house to see if she could obtain
consent to search for the marijuana under the “knock and talk” procedure, a constitutional
method for police to obtain consent to search. People v Frohriep, 247 Mich App 692,
701 (2001). When the officer knocked on the front door, no one answered. Because the
officer heard a dog barking inside the house, she walked around to the backyard to see if
anyone was home. Although the officer committed a technical trespass by entering
defendant’s backyard, “‘a mere “technical trespass” did not transform an otherwise
reasonable investigation into an unreasonable search.’” People v Houze, 425 Mich 82, 93
(1986) (Cavanagh, J.), quoting United States v Connor, 478 F2d 1320, 1323 (CA 7,
1973).
2
The officer entered the backyard by walking through the side yard next to
defendant’s garage. While no sidewalk or path led to the backyard, no fencing or
landscaping barred access. As the officer rounded the back corner of the house, she
immediately observed marijuana plants in the garden adjacent to the back porch deck.
This garden was not visible from the front of the house or the road. Police thereafter
arrested defendant for manufacturing marijuana.
The trial court denied defendant’s motion to suppress the marijuana after holding
an evidentiary hearing. The court found that, in light of the barking dog inside the house
and the lack of any indication that the officer should not enter the backyard, the officer
properly entered the backyard. The trial court found that the officer entered the backyard
not to search for the marijuana, but to find someone to talk to. An appellate court
reviews a trial court’s findings of fact at a suppression hearing for clear error. People v
Custer, 465 Mich 319, 325 (2001). Nothing in the record reflects that the court’s factual
findings were clearly erroneous.
The Court of Appeals nonetheless reversed, holding that in traversing the side yard
to round the corner of the house, the officer invaded a portion of the curtilage of
defendant’s house in which defendant had manifested a reasonable expectation of
privacy. The Court of Appeals found that the side yard area “was landscaped to
communicate privacy and showed no evidence of use inconsistent with the landscaping.”
This “finding” is not supported in the record. Indeed, it conflicts with the trial court’s
finding that defendant did not manifest a reasonable expectation of privacy in her
backyard because no fence, sign, or anything else existed indicating that access to the
backyard was prohibited. The Court of Appeals may not ignore a trial court’s factual
findings and substitute its own findings. People v Farrow, 461 Mich 202, 209 (1999).
The Court of Appeals opinion here also conflicted with People v Pemberton,
unpublished opinion per curiam of the Court of Appeals, issued April 3, 2003 (Docket
No. 238522). In Pemberton, supra, slip op at 1, the police went to the defendant’s home
to execute a “knock and talk” after receiving a tip that the defendant was growing
marijuana. When no one answered the door, the police went to the rear of the home to
see if anyone was outside. Id. While walking back to their car after finding no one in the
backyard, the officers saw a marijuana plant in a pot. Id. The Court of Appeals held that
the trial court did not clearly err in finding that (1) the officers acted reasonably when
they went into the defendant’s backyard to look for the defendant, and (2) the defendant
did not have a reasonable expectation of privacy in the rear of his home because the
public was not barred from the area and there were no signs instructing the public to stay
out. Id. at 2. Therefore, the Court of Appeals affirmed the trial court’s denial of the
defendant’s motion to suppress. Id. at 3.
The Court of Appeals opinion here also conflicted with a recent published federal
district court decision, Hardesty v Hamburg Twp, 352 F Supp 2d 823 (ED Mich,
3
2005). Hardesty considered similar facts involving the same police department.
In Hardesty, the federal district court held that the officers did not violate the defendants’
Fourth Amendment rights when they knocked on the front door and, receiving no answer,
went onto a deck in the rear of the house and looked through the window.
In Hardesty, the district court also discussed a Sixth Circuit case holding that
similar police action did not violate the defendant’s Fourth Amendment rights:
In United States v. Hopper, 58 Fed. Appx. 619, 2003 WL 152316 at
3-4 (6th Cir. 2003), the Sixth Circuit found that a raised deck behind the
appellant’s home was not entitled to any Fourth Amendment warrant
protection. In Hopper, police officers knocked on the appellant’s front door
and no one responded, then the officers went around to the back of the
house to knock on appellant’s back door. 58 Fed. Appx. 619, [WL] at 2.
When the officers went around back[,] the police officers observed
contraband under a raised deck behind the appellant’s home. 58 Fed.
Appx. 619, [WL] at 2-3. In Hopper, the appellant’s home, like the
Hardestys’ home, was not enclosed, furthermore, the appellant, similar to
the Hardestys, had not taken any special measures to protect the area from
observation. 58 Fed. Appx. 619, [WL] at 3. However, unlike the present
case, the appellant in Hopper had three “No Trespassing” signs. Id. 58
Fed. Appx. 619, [WL] at 2. [Hardesty, supra at 829.]
I hope that the panel assigned on remand will consider these problems.
KELLY, J., would deny leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
November 28, 2005 _________________________________________
l1122 Clerk