                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 9, 2015
              Plaintiff-Appellant,

v                                                                  No. 323433
                                                                   Iosco Circuit Court
CLYDE RICHARD GREEN,                                               LC No. 13-008088-FH

              Defendant-Appellee.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellant,

v                                                                  No. 323435
                                                                   Iosco Circuit Court
SANDRA JUNE GREEN,                                                 LC No. 13-008087-FH

              Defendant-Appellee.


Before: WILDER, P.J., and SERVITTO and STEPHENS, JJ.

PER CURIAM.

         In these consolidated interlocutory appeals, the prosecution appeals by leave granted an
order of the trial court granting in part defendants’ motion to suppress evidence based on an
illegal search of the premises in issue.1 We reverse and remand.

       On August 21, 2013, Michigan State Police Trooper Bradley Campbell went to
defendants’ residence to investigate a complaint made regarding abandoned animals on the
property and lack of electricity at the home. As he approached the home, Campbell immediately
smelled urine, feces, and dead animals. He knocked on the front door in an attempt to make


1
 People v Green, unpublished order of the Court of Appeals, entered October 2, 2014 (Docket
No. 323433); People v Green, unpublished order of the Court of Appeals, entered October 2,
2014 (Docket No. 323435).


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contact with the residents, but received no response. He testified that, based on a previous visit
to the residence in November 2012, at which time he made contact with the residents in a pole
barn on the property, he thought the residents might be there. As he walked down to the pole
barn, which was about 80 yards from the house, he stepped over a single-wire electric fence that
provided a barrier to confine horses. Campbell saw dead rabbits in various stages of
decomposition in cages outside the pole barn. He walked around the pole barn to the south side,
where the barn door was completely open. As he approached the pole barn door, he saw a cage
just inside that contained a dead rabbit and a dead guinea pig.

        After failing to locate anyone, Campbell made contact with defendants’ neighbor, Nathan
Proper. Proper told Campbell that defendants’ children were supposed to be taking care of the
animals, but he had not seen anyone at the property in a few days. Proper stated that there was
no electricity to the property and that he had been providing electricity for the fence and
providing a water line for the animals. At that point, Campbell left the property and obtained a
search warrant. Officers subsequently executed the search warrant and seized 31 dogs, 6 guinea
pigs, and between 100 and 200 rabbits. An expert in veterinary medicine testified that the dogs
were universally underweight and infested with fleas, roundworms, hookworms, whipworms,
and tapeworms. He also found parasites in the guinea pigs. He testified that the magnitude of
the parasite infestation is evidence of the unsanitary conditions in the whole environment of
defendants’ property, because several of the parasites can only exist in a situation where there is
recurring fecal contamination. He explained that the situation warranted impound of the
animals.

        Defendants moved to suppress all evidence obtained during Campbell’s visit to the home,
as well as all evidence subsequently derived from the execution of the search warrant. As
relevant to the issue on appeal, defendants asserted that the search warrant was issued on the
basis of facts unlawfully obtained by Campbell.2 Defendants argued that Campbell was
trespassing on the property and that he went to the pole barn solely on a “fishing expedition”
because he knew that no one was there. After hearing testimony on the issue, the trial court
denied the motion to suppress evidence obtained from the search of the house pursuant to the
search warrant, but granted the motion to suppress evidence found in and around the pole barn.
The court concluded that Campbell had “no reason” to go to the pole barn. The court
commented that Campbell “[c]ould have yelled and asked for somebody” instead of going out to
the pole barn.

       Plaintiff now argues that the trial court erred in granting defendants’ motion to suppress
the evidence found in and around the pole barn. In a suppression hearing, we review the trial



2
  Although both sides argued below about the validity of the affidavit supporting the search
warrant, and defendants reiterate their argument in their brief on appeal, that issue is not
pertinent here because the court found probable cause to support the warrant. Defendants have
not sought leave to appeal that decision. The court only suppressed evidence taken from the pole
barn on the basis of Trooper Campbell’s conduct with respect to the pole barn before he obtained
the search warrant.


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court’s ultimate decision de novo, but review the trial court’s findings of fact for clear error.
People v Barbarich (On Remand), 291 Mich App 468, 471; 807 NW2d 56 (2011). “A finding is
clearly erroneous when, although there is evidence to support it, the reviewing court is left with a
definite and firm conviction that a mistake has been made.” Id.

       Both the United States and Michigan Constitutions protect citizens from unreasonable
searches and seizures by the government. US Const, Am IV; Const 1963, art 1, § 11; Herring v
United States, 555 US 135, 136; 129 S Ct 695; 172 L Ed 2d 496 (2009); People v Slaughter, 489
Mich 302, 310-311; 803 NW2d 171 (2011).3 However, in order to implicate these protections,
the government must first commit a search, which is defined as an intrusion on a person’s
reasonable or justifiable expectation of privacy. People v Taylor, 253 Mich App 399, 404; 655
NW2d 291 (2002); see Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967).
Even where an area is protected, “[a] mere ‘technical trespass’ [does] not transform an otherwise
reasonable investigation into an unreasonable search.” People v Houze, 425 Mich 82, 93; 387
NW2d 807 (1986); see also United States v Jones, 565 US ___, ___ n 5; 132 S Ct 945, 950-951;
181 L Ed 2d 911 (2012) (explaining that a “[t]respass alone does not qualify [as an unreasonable
search], but there must be conjoined with that . . . an attempt to find something or to obtain
information”).

       This Court evaluates a search under the totality of the circumstances in determining
whether the intrusion violated both a person’s subjective (actual) and objective (reasonable)
expectation of privacy. Taylor, 253 Mich App at 404-405. Unless there is a valid exception to
the warrant requirement, any evidence obtained from a search or seizure performed without a
warrant is suppressed. People v Dagwan, 269 Mich App 338, 342; 711 NW2d 386 (2005).

       Here, the parties disputed the validity of Trooper Campbell’s initial approach of the pole
barn in attempting to locate defendants. Plaintiff contends that Campbell attempted to locate
defendants pursuant to a “knock and talk” procedure, which has been accepted as constitutionally
valid by this Court under People v Frohriep, 247 Mich App 692, 697; 637 NW2d 562 (2001).
As established in Frohriep, a knock and talk procedure is:

       [A] law enforcement tactic in which the police, who possess some information
       that they believe warrants further investigation, but that is insufficient to
       constitute probable cause for a search warrant, approach the person suspected of
       engaging in illegal activity at the person’s residence (even knock on the front
       door), identify themselves as police officers, and request consent to search for the
       suspected illegality or illicit items. [Id. at 697.]

The trial court found that Campbell exceeded the scope of the initial knock and talk procedure by
continuing to search for defendants at the pole barn, because the pole barn was too distant from
the house. It therefore concluded that Campbell was not lawfully on the premises when he


3
 Unless there is a “compelling reason” to impose a different interpretation, the Michigan
Constitution is to be construed to provide the same protection as the Fourth Amendment to the
United States Constitution. Slaughter, 489 Mich at 311.


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observed the dead animals in and around the pole barn and, therefore, that he conducted an
illegal search.

        However, the proper inquiry is whether the area (pole barn) was within the curtilage of
the home and therefore subject to a reasonable expectation of privacy. As a general rule, “the
Fourth Amendment viciously protects one’s privacy interest in the home[.]” Taylor, 253 Mich
App at 406; see also Kyllo v United States, 533 US 27, 31; 121 S Ct 2038; 150 L Ed 2d 94
(2001) (internal quotation marks and citation omitted) (“At the very core of the Fourth
Amendment stands the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion.”). For purposes of the constitutional protection against
unreasonable searches and seizures, the curtilage of the home is considered part of the home
itself. See Const 1963, art I, § 11; United States v Dunn, 480 US 294, 300; 107 S Ct 1134; 94 L
Ed 2d 326 (1987); Oliver v United States, 466 US 170, 180; 104 S Ct 1735; 80 L Ed 2d 214
(1984).

         A determination of whether an area constitutes part of the curtilage is guided by a four-
factor test, as set forth by the Court in Dunn, 480 US at 301. The factors are “[1] the proximity
of the area claimed to be curtilage to the home, [2] whether the area is included within an
enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the
steps taken by the resident to protect the area from observation by people passing by.” Id. The
Dunn Court counseled against a “mechanical” application of these factors, but instead indicated
that the factors are “useful . . . only to the degree that, in any given case, they bear upon the
centrally relevant consideration—whether the area in question is so intimately tied to the home
itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id.

        As clearly established in Dunn, people do not enjoy a reasonable expectation of privacy
in areas outside the curtilage, which is the “area around the home to which the activity of home
life extends.” Dunn, 480 US at 302-304. Dunn concluded that large fields not contained within
an immediate fence surrounding the defendant’s residence and a detached barn located 50 to 60
yards from the suspect’s home were not within the curtilage of the home. Id. at 304. “Standing
in isolation,” the Court concluded, “this substantial distance supports no inference that the barn
should be treated as an adjunct of the house.” Id. at 302. The Court also found it:

       significant that respondent’s barn did not lie within the area surrounding the house
       that was enclosed by a fence. We noted in Oliver [v United States, 466 US 170;
       104 S Ct 1735; 80 L Ed 2d 214 (1984)], that “for most homes, the boundaries of
       the curtilage will be clearly marked; and the conception defining the curtilage—as
       the area around the home to which the activity of home life extends—is a familiar
       one easily understood from our daily experience.” 466 U.S., at 182, n. 12, 104
       S.Ct., at 1743, n. 12. Viewing the physical layout of respondent’s ranch in its
       entirety, . . . it is plain that the fence surrounding the residence serves to demark a
       specific area of land immediately adjacent to the house that is readily identifiable
       as part and parcel of the house. Conversely, the barn—the front portion itself
       enclosed by a fence—and the area immediately surrounding it, stands out as a
       distinct portion of respondent’s ranch, quite separate from the residence. [Dunn,
       480 US at 302.]


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“It is especially significant,” the Court continued, “that the law enforcement officials possessed
objective data indicating that the barn was not being used for intimate activities of the home.”
Id. Finally, the Court found that the defendant “did little to protect the barn area from
observation by those standing in the open fields.” Id. at 303. The Court explained that under the
circumstances, the police did not commit an unreasonable search by circling the barn and peering
inside it with flashlights. Id.

        Application of the Dunn factors in the case at hand supports a finding that the pole barn is
not within the home’s curtilage. The distance between the pole barn and the residence in the
present case is greater than the distance between the house and its respective structure in Dunn,
which was found to be outside the curtilage. The single-wire electric fence surrounding the area
where the pole barn is located served as a barrier to confine horses and was not demarcating the
cartilage and was easily stepped over. The pole barn was also not in an area where the intimate
daily activity of defendant’s life extended. See United States v Potts, 297 F2d 68, 69 (CA 6,
1961). The pole barn was surrounded by overgrown grass and contained cages that housed
rabbits and guinea pigs and that were piled with feces. Cages were also immediately outside the
pole barn that contained dead animals. The barn itself was not used for family purposes.
Moreover, “[a]n individual may not have a reasonable expectation of privacy, even in areas close
to the principal residence, such as will allow them to be treated as the curtilage, when those areas
are readily accessible and visible to the public.” 68 Am Jur 2d, Searches and Seizures, § 69, p
184. The pole barn was visible to the public from the road.

        In sum, we conclude that defendants’ pole barn did not constitute part of the curtilage of
the home. Because defendants did not have a reasonable expectation of privacy in regard to the
pole barn, the search of defendants’ premises did not violate their Fourth Amendment rights
because the conduct of the police in approaching the pole barn was not a search that implicated
constitutional protections. The evidence consequently discovered pursuant to a search warrant
should not have been suppressed by the trial court.

       Reversed and remanded. We do not retain jurisdiction.

                                                             /s/ Kurtis T. Wilder
                                                             /s/ Deborah A. Servitto
                                                             /s/ Cynthia Diane Stephens




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