Mimesis Law
21 September 2019

Michigan Court of Appeals: What could be wrong with the 4 a.m. knock and talk

Dec. 11, 2015 (Mimesis Law) — The Michigan Court of Appeals, in a warm show of friendliness, has given the okay for any citizen or passerby to go ahead and knock on a door at any time of day or night. Please feel free to bring six or seven friends in unmarked vehicles, and don’t worry about being armed, that’s just the Michigander way to show that you care.

Now, they may be a little groggy. That’s why it’s important to give them a burst of energy through persistent, rhythmic knocking and screaming. Some people prefer a cup of coffee in the wee hours of the morning, but there’s nothing better than an impromptu drum circle on your front and back door.

You might be a little nervous, of course. Isn’t there a chance they’ll shoot me? Nonsense. First off, you’ll be wearing a tactical vest and shining a flashlight into their eyes as they open the door—the Midwestern equivalent of a warm hug in a fuzzy sweater.

Second, they’re almost certainly going to be disoriented by your demands that you be let into the house. They may even be a little worried that you keep nervously fiddling with the gun at your hip while you talk. The important thing is that you’re complying with community standards when you demand to be let into their home, the better to share Jehovah’s Witness literature, potato pancake recipes, and funny stories about deceased pets.

Don’t let the numbers fool you. The Court was careful to point out that:

The record does not demonstrate that the officers used their numerosity to demand entrance or to overcome the will of Frederick and Van Doorne. Rather, the fact that seven officers traveled to each home demonstrates no more than that the entire team, working together on the investigation, traveled together as the investigation continued into the early morning hours.

See? The seven officers in tactical gear weren’t trying to be intimidating. They were simply demonstrating teamwork.

Naturally, you’ll also be asking if they have any fun secrets you can explore. For instance, can they show you their marijuana butter, prescription pills, and firearms on short notice? In Michigan, every casual visitor gets to have a fun little show and tell as they walk through the door.

Now, some folks, like those fair-weather patriots over at the ACLU, might ask, “isn’t it a little intrusive for seven law enforcement officers to bang on your door at four in the morning to ask if they can search your home? Wasn’t the whole point of storming in under cover of night to disorient the occupants into compliance?”

Hell, those eggheaded anarchists might even point out the centuries-old common-law tradition of not performing searches at night if it can be helped. They might quote Justice Frankfurter:

“Searches of the dwelling house were the special object of this universal condemnation of official intrusion. Night-time search was the evil in its most obnoxious form.”

But the Court had a good response to that, too:

Nothing in the record indicates that the officers chose to proceed at this time of day in order to frighten or intimidate either man, or to otherwise use the time of day to their advantage.

It would only make sense to think that the police intended to intimidate the homeowners if you believed something crazy, like that human beings intend “the natural and probable consequences of their actions.

And the defendant’s argument is silly, the Michigan Court of Appeals says. The sort of officer conduct in this case (knocking for a few minutes outside a homeowners door at 4 in the morning) was totally different from the conduct the Supreme Court held unconstitutional in Jardines (which held that officers can’t bring drug dogs to conduct a sniff at a homeowner’s front door):

This implicit license [to knock and speak with occupants of a home] typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.”

This wasn’t at all like bringing a drug sniffing dog to the front door, the Court reasoned. Or like strolling around the property for an hour before knocking. Officers only break the implied license to knock and talk when they arrive for a purpose other than asking for consent, no matter how they go about asking for that consent.

Bear in mind, the Michigan Court of Appeals only addressed the Jardines issue at all because the Supreme Court of Michigan told them to, in lieu of granting a petition for cert. So there may be only a limited window to express your love for your neighbors in the dead of night.

Until then, Michiganders, if you wake up one foggy morning to find 20 armed Girl Scouts demanding exorbitant rates for their Thin Mints, rest assured, that’s no more than the sort of friendly visit that made Mayberry such a delight. No sudden movements, though. There may be a police badge on those sashes, and we all know how that ends up.

H/T The inimitable Fourth Amendment Blog.

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  • Eva
    13 December 2015 at 3:56 pm - Reply

    This kind of strategy just ampes up the potential of harm to the person answering the door unaware of whom is knocking and the cops who have decided use it.

    Why in the world are citizens allowing the people who have been sworn to protect us doing these kind of thingsit? Why does law enforcement believe that considering using that very strategy for apparently situations that really do not call for it going to make it better, make it safer for all concerned?