                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 19, 2017
                Plaintiff-Appellee,

v                                                                  No. 322820
                                                                   Livingston Circuit Court
DENNIS KEITH TOWNE,                                                LC No. 12-020831-FH

                Defendant-Appellant.


                                         ON REMAND

Before: SERVITTO, P.J., and GADOLA and O’BRIEN, JJ.

PER CURIAM.

        Defendant, Dennis Keith Towne, pleaded guilty to manufacturing marijuana, MCL
333.7401(2)(d)(iii), and was sentenced to two days in jail, with credit for two days served, and
one year probation. We denied defendant’s application for leave to appeal,1 and defendant
thereafter applied for leave to appeal before our Supreme Court, which remanded this matter for
consideration as on leave granted.2 In that appeal, defendant challenged the circuit court’s order
denying his motion to suppress evidence on Fourth Amendment grounds. We rejected those
arguments and affirmed.3 After we issued our opinion, the Michigan Supreme Court issued its
opinion in People v Frederick, 500 Mich 228; 895 NW2d 541 (2017). Defendant appealed our
opinion to the Michigan Supreme Court, and in lieu of granting leave to appeal, the Supreme
Court vacated our opinion and remanded this case for reconsideration in light of Frederick.
People v Towne, ___ Mich ___; 902 NW2d 419 (2017). We conclude that Frederick does not
change our initial decision, and we again affirm.

                                       I. BACKGROUND


1
  People v Towne, unpublished order of the Court of Appeals, entered September 17, 2014
(Docket No. 322820).
2
    People v Towne, 497 Mich 1026; 863 NW2d 57 (2015).
3
 People v Towne, unpublished per curiam opinion of the Court of Appeals, issued March 10,
2016 (Docket No. 322820), vacated and remanded ___ Mich ___; 902 NW2d 419 (2017).


                                               -1-
As summarized in our previous opinion, the facts of this case are as follows:

        On December 15, 2011, Michigan State Police (MSP) Trooper Joseph
Allen Pendergraff went to defendant’s residence to execute an arrest warrant for
defendant’s son, Richard Keith Towne. While, according to defendant, Richard
did not live at the residence, Pendergraff had learned a variety of information,
including the fact that there was a vehicle at defendant’s residence that was
registered in Richard’s name, the fact that Richard received mail at the residence,
and other similar information, that led him to believe that Richard was, in fact,
residing at defendant’s residence on and before that date. Pendergraff,
accompanied by MSP Trooper Adam Henderson, approached the residence’s
front door, knocked, was greeted by defendant, and asked to search the residence
to find and arrest Richard. During Pendergraff’s and Henderson’s interactions
with defendant, MSP Troopers Matthew Keller and Michael Sura approached the
back of the residence in hopes of preventing Richard from escaping.

         As defendant opened the door, he did so “just enough to slide out and
then . . . closed the door immediately behind him” before greeting the troopers.
This odd behavior, coupled with the information described above, led Pendergraff
to believe that Richard was, indeed, in defendant’s residence. Pendergraff also
learned that a second vehicle at defendant’s residence was also registered in
Richard’s name during the conversation.          Eventually, Pendergraff asked
permission to enter defendant’s residence, and defendant denied that request. In
light of defendant’s odd behavior as well as the additional information described
above, Pendergraff believed that Richard was in the residence and that there was
probable cause to search the residence. Pendergraff and Sura then left the
residence to obtain a search warrant for Richard in defendant’s residence. Keller
and Henderson, however, remained near the residence to be available in the event
that Richard attempted to flee.

       Specifically, Henderson walked to and stood approximately “20 yards, 25
yards” from the residence, “ten twenty feet” from a pool located on defendant’s
property, and “[l]iterally right on the tree line” “almost in the forest” while
observing defendant’s residence.         After remaining in this location for
approximately 45 or 50 minutes, Henderson observed what he described as an
“overwhelming” and “extensive amount of smoke coming out of the chimney[.]”
He explained that the smoke smelled of an “extremely excess amount of freshly
burned marijuana.” Through the residence’s many uncovered windows, he also
observed the living room area of the residence “getting brighter and brighter”
“from a fire.” He testified that the fire “illuminated not only the whole [living]
room, but the kitchen portion, the hallway, it was extremely intense.” As the
rooms grew brighter Henderson continued, “more smoke came out of the
chimney” and “you could actually see sparks coming out of the chimney.”
According to Henderson, he had “never had a scent of marijuana be so
overwhelmingly strong” in his 13-year career.



                                        -2-
               Fearing that individuals in the residence were attempting to destroy
       evidence, i.e., burning marijuana, the troopers approached the back of the
       residence and, through the uncovered windows, saw defendant “literally
       shoveling . . . handfuls of marijuana from a plastic tote . . . onto the fire.”
       Henderson and Keller contacted Pendergraff, and all agreed that they should enter
       the residence to secure the evidence that was being destroyed. Henderson and
       Keller did so, first securing the residence to ensure that they were not ambushed
       by defendant, defendant’s wife, or Richard, and, second, securing the unburned
       marijuana. In light of these developments, Pendergraff instead sought and
       obtained a marijuana-related search warrant. The troopers executed the same and
       found “a total of 75 growing marijuana plants” and numerous “bags of marijuana”
       that “weighed 9.04 pounds.” Defendant was thereafter charged with one count of
       manufacturing marijuana. He moved both before the district court and circuit
       court to suppress the marijuana evidence and dismiss the case on Fourth
       Amendment grounds, but his motions were denied. Thereafter, he pleaded guilty,
       expressly preserving his Fourth Amendment challenge, and was sentenced as
       described above. This appeal followed. [Towne, unpub op at 1-2 (alterations in
       original).]

        On remand, we must address whether defendant’s challenges the circuit court’s order
denying his motions to suppress and dismiss on grounds that the evidence was obtained in
violation of the Fourth Amendment are meritorious in light of Frederick. We hold that they are
not.

                                     II. APPLICABLE LAW

                                  A. STANDARD OF REVIEW

        A circuit court’s factual findings at a suppression hearing are reviewed for clear error, but
its application of the underlying law and ultimate decision are reviewed de novo. People v
Slaughter, 489 Mich 302, 310; 803 NW2d 171 (2011).

                         B. FOURTH AMENDMENT PROTECTIONS

        “The Fourth Amendment protects people from unreasonable searches and seizures.”
People v Frohriep, 247 Mich App 692, 699; 637 NW2d 562 (2001); see US Const, Am IV;
Const 1963, art 1, § 11. A search occurs if the government intrudes upon an area where a person
has a “reasonable expectation of privacy.” United States v Jones, 565 US 400, 406; 132 S Ct
945; 181 L Ed 2d 911 (2012) (citation and quotation marks omitted); see also People v Whalen,
390 Mich 672, 677; 213 NW2d 116 (1973) (“Simply put, if an individual has a reasonable
expectation of privacy in the area searched, or the materials seized, a search has been
conducted.”). “The lawfulness of a search . . . depends on its reasonableness.” People v
Beuschlein, 245 Mich App 744, 749; 630 NW2d 921 (2001). As a general rule, searches
conducted with a warrant are reasonable, and warrantless searches are unreasonable. Id.
“Searches conducted without a warrant are per se unreasonable under the Fourth Amendment,
subject only to a few specifically established and well-delineated exceptions.” People v Davis,
442 Mich 1, 10; 497 NW2d 910 (1993) (citation and quotation marks omitted). “Each of these

                                                 -3-
exceptions, while not requiring a warrant, still requires reasonableness and probable cause.”
People v Brzezinski, 243 Mich App 431, 434; 622 NW2d 528 (2000). “Probable cause to search
exists when facts and circumstances warrant a reasonably prudent person to believe that a crime
has been committed and that the evidence sought will be found in a stated place.” Id. at 433.
The exception most pertinent for purposes of this appeal is the “plain view” exception.

        Law enforcement can seize items within plain view if (1) “the evidence is obviously
incriminatory” and (2) “the officer is lawfully in the position” where he or she views the
obviously incriminatory evidence. People v Galloway, 259 Mich App 634, 639; 675 NW2d 883
(2003). Despite the plain view exception’s name, physical view of incriminatory evidence is not
required; rather, an officer must merely be able to perceive the incriminatory evidence with one
of his or her senses. We allow officers to seize items that can be plainly smelled, People v
Kazmierczak, 461 Mich 411, 421-422; 605 NW2d 667 (2000), or plainly felt, People v
Champion, 452 Mich 92, 105; 549 NW2d 849 (1996). But, if the officer is not lawfully
positioned when perceiving the incriminatory evidence, the plain view exception does not apply.
Galloway, 259 Mich App at 639.

        When an officer is positioned outside of a residence but perceives incriminatory evidence
located inside of the residence, the legality of the officer’s position depends on whether the
officer invaded the residence’s “curtilage.” United States v Dunn, 480 US 294, 303-304; 107 S
Ct 1134; 94 L Ed 2d 326 (1987). If an officer intrudes onto a person’s curtilage, then his actions
can constitute a search, but if the officer does not intrude onto a person’s curtilage, and therefore
remains outside of the property or in the property’s “open fields,” then the intrusion “is not one
of those ‘unreasonable searches’ proscribed by the text of the Fourth Amendment.” Id. at 303-
304 (citation and quotation marks omitted).

        In distinguishing between a property’s curtilage and open fields, the “primary inquiry is
whether ‘the area harbors the intimate activity associated with the sanctity of . . . [the] home and
the privacies of life.’ ” People v Powell, 477 Mich 860, 861; 721 NW2d 180 (2006), quoting
Dunn, 480 US at 300 (alteration in Powell). For “ ‘most homes, the boundaries of the curtilage
will be clearly marked; and the conception defining the curtilage . . . is a familiar one easily
understood from our daily experience.’ ” Dunn, 480 US at 302, quoting Oliver v United States,
466 US 170, 182 n 12; 104 S Ct 1735; 80 L Ed 2d 214 (1984). When it is not, courts balance
four factors to differentiate between curtilage and an open field: (a) the proximity of the area at
issue to the home, (b) whether the area at issue is within an enclosure surrounding the home, (c)
the nature of the uses to which the area at issue is put, and (d) the steps taken by the resident to
protect the area at issue from the observation of others. Dunn, 480 US at 301-303; see also
Powell, 477 Mich at 861 (applying the four-factor Dunn test).

         If evidence is seized as the result of an unconstitutional search, the evidence may be
suppressed under the “exclusionary rule,” a “ ‘judicially created remedy designed to safeguard
against future violations of Fourth Amendment rights through the rule’s general deterrent
effect.’ ” People v Reese, 281 Mich App 290, 295; 761 NW2d 405 (2008), quoting Arizona v
Evans, 514 US 1, 10; 115 S Ct 1185; 131 L Ed 2d 34 (1995). For that reason, the exclusionary
rule applies only in “those instances where its remedial objectives are thought most efficaciously
served.” Reese, 281 Mich App at 295. (citation and internal quotation marks omitted). That is,
not all evidence is suppressed “simply because it would not have come to light but for the illegal

                                                -4-
actions of the police.” Id. (citation and internal quotation marks omitted). “[W]hether the
evidence must be suppressed depends on whether the evidence was discovered through
exploitation of that illegality” or by “sufficiently distinguishable” means. Id. at 295-296 (citation
and internal quotation marks omitted).

                                C. THE FREDERICK DECISION

        In Frederick, 500 Mich at 542, the Michigan Supreme Court considered the
constitutionality of two early morning searches of the defendants’ homes. The prosecution
argued that the police conduct was lawful as either a knock and talk or a consent search. Id. at
544. Addressing the prosecution’s knock and talk argument, the Court explained that “[t]he
proper scope of a knock and talk is determined by the ‘implied license’ that is granted to
‘solicitors, hawkers, and peddlers of all kinds.’ ” Id., quoting Florida v Jardines, 569 US 1, 8;
133 S Ct 1409; 185 L Ed 2d 495 (2013). The Frederick Court concluded that the scope of the
implied license to approach a house and knock is time-sensitive, and that there is no implied
license to knock at someone’s door in the middle of the night. Id. at 546. The Frederick Court,
in reliance on the United States Supreme Court’s reasoning in Jardines, reasoned that
information-gathering combined with a trespass on Fourth-Amendment-protected property
constituted a search triggering Fourth Amendment protections. Id. at 545-546. Based on this
reasoning, the Frederick Court held that the officers’ conduct in that case implicated the Fourth
Amendment because (1) they exceeded the scope of their implied license and, therefore, were
trespassing when they approached the defendants’ homes at 4:00 a.m. and 5:30 a.m. and (2) they
were seeking information about marijuana butter they believed the defendants possessed. Id. at
546-547. And because the police did not have warrants and no other exception to the warrant
requirement applied, the Court held that the officers’ approaches violated the Fourth
Amendment. Id. at 548. The Court, nonetheless, remanded for the trial court to determine
whether the subsequent consent was attenuated from the illegality. Id. at 549.

                                       III. APPLICATION

        Defendant first challenges on appeal Sura’s and Keller’s actions: walking to the back of
the residence during the knock and talk. Defendant argues that, because Sura and Keller violated
his Fourth Amendment rights, evidence of the marijuana should be suppressed.

       We previously held that Sura’s and Keller’s action did not lead to the recovery of any
evidence, and, thus, the exclusionary rule was inapplicable. We reasoned as follows:

       While it is true that, after Sura and Pendergraff left the residence, Keller
       eventually detected the odor of marijuana, smelling marijuana from his patrol
       vehicle in front of the residence 45 or 50 minutes later, that had absolutely
       nothing to do with his walking to the back of defendant’s residence allegedly in
       violation of defendant’s constitutional rights. Stated differently, we simply
       cannot conclude that, but for Sura and Keller walking to the back of defendant’s
       residence during the knock and talk, the marijuana would not have been obtained.
       [Reese, 281 Mich App] at 295. Rather, the marijuana was ultimately uncovered
       by “sufficiently distinguishable” means and, therefore, need not be suppressed.
       Id. (citation and internal quotation marks omitted). [Towne, unpub op at 4.]

                                                -5-
This determination in our original opinion involved the causal relationship between Sura’s and
Keller’s actions and the discovery of evidence, which was not at issue in Frederick. The
Frederick Court did not discuss the discovery of evidence through “sufficiently distinguishable”
means. Thus, Frederick has no effect on this part of our opinion. Accordingly, for the reasons
stated in our previous opinion, we conclude that Sura’s and Keller’s actions did not require
suppression of the evidence.

        Defendant’s second challenge is whether Henderson’s actions, i.e., observing defendant’s
house from the tree line, violated defendant’s Fourth Amendment rights. Defendant’s argument
rests solely on his erroneous assumption that Henderson was in the curtilage of his residence,
which, as will be explained, he was not. From the tree line, Henderson observed an
“overwhelming” and “extensive” amount of smoke coming from the chimney that smelled like
an “extremely excess amount of freshly burned marijuana,” and he could see the living room
“getting brighter and brighter” “from a fire.” Based on this information, Henderson and Keller
clearly had probable cause, Brzezinski, 243 Mich App at 433-434 and the issue we are faced with
is whether the requisites for application of the plain view exception existed.

        As stated, law enforcement may seize evidence that is in plain view if (1) “the evidence is
obviously incriminatory” and (2) “the officer is lawfully in the position” where he or she views
the obviously incriminatory evidence. Galloway, 259 Mich App at 639. At issue here is whether
Henderson was “lawfully in the position” when he smelled the “overwhelming” and “extensive”
amounts of marijuana smoke leaving the residence’s chimney. The legality of Henderson’s
position depends on whether he was in the curtilage of defendant’s residence. See Dunn, 480 US
at 303-304. We previously concluded that Henderson was not in the curtilage of defendant’s
residence, reasoning as follows:

       The record includes quite a bit of detail about defendant’s property. It reflects
       that his residence sits in the middle of a wooded five-acre parcel. The residence
       itself is not enclosed by any type of manmade boundary. Instead, natural trees, as
       well as a handful of planted trees, surround the residence. Thus, we find it helpful
       to balance the four factors set forth in Dunn: (1) the proximity of Henderson’s
       location to the residence, (2) whether Henderson’s location was within an
       enclosure surrounding the residence, (3) the nature of the uses to which
       Henderson’s location is put, and (4) the steps taken by defendant to protect
       Henderson’s location from observation by people passing by. 480 US at 301-303.
       Doing so, we conclude that Henderson did not invade the curtilage of defendant’s
       residence.

               Henderson’s preliminary examination testimony reflects that he walked
       along the south and east sides of defendant’s residence. Defendant claimed to
       have planted trees for privacy purposes in or near these areas. While defendant
       and his wife also testified that their pool, deck, fire pit, and river were located
       somewhat near the path that Henderson may have taken or the location that he
       stood in, Henderson testified that a significant distance, between ten and 20 feet,
       existed between him and these manmade structures. Henderson further testified
       that he was 20 to 25 yards from the residence itself. While this distance may not
       have exceeded the distances discussed in other cases, see Oliver, 466 US at 182;

                                                -6-
       see also Dunn, 480 US at 301-303, there is no bright-line distance required.
       Henderson specifically testified that he was “right on the tree line,” “almost in the
       forest,” and next to 100-foot-tall trees. This is consistent with the circuit court’s
       finding that the officers were “on the edge, outer edge of the property.” While
       defendant’s wife attempted to refute such a conclusion, the record is clear in that
       neither she nor defendant actually saw where Henderson was located.
       Furthermore, she essentially described Henderson as being “within feet” or near
       areas that she labeled as private, not actually in the private areas. Powell, 477
       Mich at 861. Thus, her testimony also supports a conclusion that Henderson was
       in an open field, albeit perhaps somewhat near what may be considered curtilage.
       Furthermore, to the extent Henderson’s testimony about his location was in
       conflict with defendant’s or defendant’s wife’s, we defer to the circuit court’s
       credibility determination resolving those conflicts. People v Sexton (After
       Remand), 461 Mich 746, 752; 609 NW2d 822 (2000). Thus . . . we conclude that
       Henderson did not invade the curtilage of defendant’s residence[.] [Towne, unpub
       op at 5-6.]

Frederick did not address the meaning or scope of curtilage, and, therefore, we find that it has no
effect on our previous determination. Therefore, for the same reasons as provided in our
previous opinion, we conclude that Henderson was not within the curtilage of defendant’s
residence.

        However, it is clear that Henderson was trespassing on defendant’s property when he
smelled the marijuana. As explained in Frederick, information-gathering combined with a
trespass on Fourth-Amendment-protected property constitutes a search triggering Fourth
Amendment protections. Frederick, 500 Mich at 545-546. Because we conclude that Henderson
was not trespassing on Fourth-Amendment-protected property, we hold that defendant’s Fourth
Amendment rights were not violated.

        In reaching this conclusion, we find a footnote from Frederick instructive. In footnote
three, after explaining that the United States Supreme Court in Jardines concluded that officers
who used a trained police dog to explore curtilage around a home to find incriminating evidence
had “trespassed on Fourth-Amendment-protected property,”4 the Frederick Court provided as
follows:

       The Jardines Court distinguished between trespasses that implicate the Fourth
       Amendment and those that do not. For instance, police may trespass and search
       in open fields without violating the Fourth Amendment because “an open field . . .
       is not one of those protected areas enumerated in the Fourth Amendment.” Jones,
       565 US at 411; 132 S Ct 945; citing Oliver v United States, 466 US 170, 177; 104


4
  In Jardines and Frederick, it was clear that the officers were in the curtilage of the defendants’
residences, so that issue was not addressed. The issue in both cases was whether the officers
were trespassing or whether they were complying with the scope of the implied license to enter a
person’s property for limited purposes that all members of the public enjoy.


                                                -7-
       S Ct 1735; 80 L Ed 2d 214 (1984). But because the curtilage is part of the home,
       Oliver, 466 US at 180; 104 S Ct 1735, and homes are protected by the Fourth
       Amendment, trespassing on the curtilage implicates Fourth Amendment
       protections. [Frederick, 500 Mich at 236 n 3].

Although Henderson was trespassing on defendant’s property, he was in the open fields outside
of the curtilage of defendant’s residence, and, therefore, defendant’s Fourth Amendment rights
were not implicated. See id. Accordingly, because we conclude that Henderson did not invade
the curtilage of defendant’s residence, the plain view exception applies, and defendant’s Fourth
Amendment rights were not violated.5

       Affirmed.

                                                            /s/ Deborah A. Servitto
                                                            /s/ Michael F. Gadola
                                                            /s/ Colleen A. O'Brien




5
  Defendant also argues that his Fourth Amendment rights were violated because Henderson
walked across his property’s curtilage before taking up his position at the tree line. As
previously stated, Henderson’s preliminary examination testimony reflects that he walked along
the south and east sides of defendant’s residence. To the extent that Henderson may have
traversed across the curtilage of defendant’s home, we find the following excerpt from Frederick
instructive:
       A police officer walking through a neighborhood who takes a shortcut across the
       corner of a homeowner’s lawn has trespassed. Yet that officer has not violated
       the Fourth Amendment because, without some information-gathering, no search
       has occurred. [Frederick, 500 Mich at240.]
Based on this excerpt, it is clear that if Henderson invaded the curtilage of defendant’s residence
when walking to his position outside of the curtilage from where he smelled the marijuana, there
was no information-gathering at that time. Therefore, defendant’s Fourth Amendment rights
were not implicated.


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