                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-3097
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                  Charles F. White

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                    Appeal from United States District Court
                for the Western District of Missouri - Springfield
                                 ____________

                          Submitted: November 15, 2018
                              Filed: June 28, 2019
                                 ____________

Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
                          ____________

KELLY, Circuit Judge.

      In May 2012, Charles F. White and his co-defendant Anthony L. Bearden were
charged with one count of manufacturing marijuana in violation of federal law. A
superseding indictment charged additional counts in 2013, and pursuant to a
conditional plea agreement, White pleaded guilty in 2017 to one count of conspiracy
to manufacture 1,000 or more marijuana plants, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A). The district court1 sentenced White to the statutory
minimum of 10 years’ imprisonment. He now appeals the district court’s2 denial of
his motion to suppress and its3 denial of his motion to dismiss the indictment on equal
protection grounds.

                                           I

                                           A

       Our decision in Bearden’s appeal, United States v. Bearden, 780 F.3d 887 (8th
Cir. 2015), provides the necessary background for this case, which we recite in
abridged form here. Officer Billy Simpson and Detective Ken Minica of the Polk
County Sheriff’s Department first encountered White’s property in rural Missouri
when they were attempting to locate an address for an unrelated criminal investiga-
tion. Unable to do so, the officers sought to contact local residents for assistance and
came upon White’s property. The officers drove down its long driveway, which is
lined with dense woods and loops around a house, and continued to the south side of
the house until they reached what they believed was the front. They exited their



      1
      The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.
      2
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri, now deceased, adopting the report and recommendations of the
Honorable James C. England, United States Magistrate Judge for the Western District
of Missouri.
      3
       The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri, adopting the report and recommendations of the Honorable Matt
J. Whitworth, then United States Magistrate Judge for the Western District of
Missouri, now Chief Magistrate Judge for the Western District of Missouri.


                                          -2-
vehicle and immediately smelled a strong odor of green marijuana. After briefly
speaking with White about the unrelated criminal investigation, the officers left.

      Later in the day and accompanied by COMET4 Drug Task Officers, Detective
Simpson and Officer Minica returned to White’s property. Two officers drove
through White’s driveway until they reached what they believed was the front door.
The officers knocked on the door in an attempt to contact White, but no one
answered. During this second visit, the odor of marijuana was even stronger than it
had been earlier in the day. After no one answered the door, the officers decided to
apply for a warrant to search White’s property, and three officers remained there to
secure the area while awaiting the warrant. The officers did not search anything
while they waited.

      The officers who stayed behind then encountered Bearden, who told them that
he rented the adjoining property from White. When questioned, Bearden stated that
he had “personal use marijuana” in his residence and allowed the officers to enter his
property. There, the officers again smelled a strong odor of green marijuana. Based
on these observations and interactions with Bearden, officers sought a warrant to
search Bearden’s property as well. Both warrants were issued, and officers found
hundreds of marijuana plants growing inside the shop building on White’s property
and inside the shed on Bearden’s property.

                                          B

       White and Bearden were indicted. They each filed motions to suppress,
alleging violations of the Fourth Amendment. After the magistrate judge held a joint


        4
            COMET refers to the Combined Ozarks Multijurisdictional Enforcement
Team.


                                         -3-
evidentiary hearing, both motions were denied in a single order. Shortly thereafter,
in October 2013, Bearden conditionally pleaded guilty to one count of conspiracy to
manufacture 1,000 or more marijuana plants and to one count of possession of a
firearm in furtherance of a drug-trafficking offense. White continued to litigate
several motions before the district court, including the motion to dismiss the
indictment that he challenges in this appeal.

       While White’s case continued its way through the district court, Bearden
appealed. Among other things, he challenged the denial of his motion to suppress
evidence seized from White’s property. We affirmed, rejecting Bearden’s contention
that the officers violated his Fourth Amendment rights both times they “drove up
White’s driveway and entered his curtilage without a warrant or a showing of exigent
circumstances.” Bearden, 780 F.3d at 893. We accepted the government’s
concession that the officers entered White’s curtilage and reached several conclusions
relevant to the instant appeal.

        First, we held that the officers’ initial visit to White’s property was constitu-
tionally permissible because “no Fourth Amendment search occurs when police
officers who enter private property restrict their movements to those areas generally
made accessible to visitors—such as driveways, walkways, or similar passageways.”
Id. at 894 (quoting United States v. Wells, 648 F.3d 671, 679 (8th Cir. 2011)). The
Fourth Amendment did not prohibit the officers from entering White’s curtilage to
“obtain assistance in locating an address” while “investigating criminal activity
wholly unrelated to White or Bearden.” Id. Second, we rejected Bearden’s
contention that the officers’ return visit was constitutionally infirm. We held that the
officers’ second entry into the curtilage did not constitute a search, but was rather a




                                          -4-
“knock-and-talk” permitted by the Fourth Amendment.5 We explained that “[o]nce
Officer Simpson and Detective Minica discovered evidence of criminal activity,
based on the strong odor of marijuana, they were permitted to return to the property
for a ‘legitimate law enforcement objective.’” Bearden, 780 F.3d at 894 (quoting
United States v. Robbins, 682 F.3d 1111, 1115 (8th Cir. 2012)).

      Against this backdrop, White now appeals.

                                          II

       White first challenges the district court’s denial of his motion to suppress. He
does not challenge the officers’ first entry onto his property, but, relying on Florida
v. Jardines, 569 U.S. 1 (2013), he asserts that their second entry violated his Fourth
Amendment rights. According to White, the second entry “went beyond” a “knock-
and-talk” because, he claims, the officers wanted to follow up on the odor of green
marijuana they had smelled earlier in the day. In Bearden, we unequivocally held that
the officers’ second entry onto White’s curtilage constituted a permissible knock-and-
talk, but the defendant there did not raise a Jardines-based challenge. But even after
further consideration of the motion to suppress in light of Jardines, we again conclude
that the result is the same.

      “On appeal from the denial of a motion to suppress, we review the district
court’s factual findings for clear error and its conclusions of law de novo.” Bearden,
780 F.3d at 892. “We affirm unless the denial of the motion is unsupported by
substantial evidence, based on an erroneous interpretation of the law, or, based on the



      5
        “A ‘knock and talk’ is an investigatory technique in which law enforcement
officers approach the door of a dwelling seeking voluntary conversation and consent
to search.” United States v. Crisolis-Gonzalez, 742 F.3d 830, 833 n.2 (8th Cir. 2014).


                                         -5-
entire record, it is clear that a mistake was made.” Id. (quoting United States v.
Douglas, 744 F.3d 1065, 1068 (8th Cir. 2014)).

        The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures . . . .”
U.S. Const. amend. IV. This guarantee extends not only to a residence, but also to
the residence’s curtilage. Bearden, 780 F.3d at 893. Under the property-based
approach to the Fourth Amendment that the Supreme Court utilized in Jardines,
“[w]hen the Government obtains information by physically intruding on persons,
houses, papers, or effects, a ‘search’ within the original meaning of the Fourth
Amendment has undoubtedly occurred.” 569 U.S. at 5 (cleaned up). “Such conduct
thus is presumptively unreasonable absent a warrant.” Collins v. Virginia, 138 S. Ct.
1663, 1670 (2018).

       But consistent with the Fourth Amendment, the knock-and-talk exception to
the warrant requirement permits “a police officer not armed with a warrant [to]
approach a home and knock.” Jardines, 569 U.S. at 8. This so-called knock-and-talk
exception to the warrant requirement is founded on the “implicit license” all of us,
including law enforcement officers, enjoy to “approach the home by the front path,
knock promptly, wait briefly to be received, and then (absent invitation to linger
longer) leave.” Id. When officers objectively exceed the scope of this license, the
knock-and-talk exception cannot justify their warrantless intrusion of the curtilage.
That is why the officers in Jardines could not rely on the knock-and-talk exception:
they did not approach the home to knock and speak with its occupants, and “they had
no invitation to ‘introduc[e] a trained police dog to explore the area around the home
in hopes of discovering incriminating evidence.’” United States v. Hopkins, 824 F.3d
726, 731 (8th Cir. 2016) (alteration in original) (quoting Jardines, 569 U.S. at 9).
“[T]heir behavior objectively reveal[ed] a purpose to conduct a search, which is not
what anyone would think he had license to do.” Jardines, 569 U.S. at 10.



                                          -6-
      This case is different. The officers’ conduct does not “objectively reveal[] a
purpose to conduct a search.” Id. As White concedes, and as the district court found,
the officers entered his curtilage and knocked on his door. In fact, White cites
testimony from each of the officers that they returned to his property to “establish
contact with [him] again” and to “attempt to make contact with the property owner.”
As we explained in Bearden, and as Jardines reaffirms, this conduct falls squarely
within the scope of the knock-and-talk exception to the warrant requirement.

       Nevertheless, White asserts that the officers’ motivation for engaging in the
knock-and-talk, that is, following up on the odor of green marijuana detected on the
first entry, renders the second entry impermissible under Jardines. As an initial
matter, we note that the subjective intent of an officer cannot vitiate otherwise
objectively reasonable conduct. See Jardines, 569 U.S. at 10 (“[A] stop or search that
is objectively reasonable is not vitiated by the fact that the officer’s real reason for
making the stop or search has nothing to do with the validating reason.”). Even after
Jardines, the relevant inquiry is whether the officers’ conduct on the second entry is
objectively reasonable. See id. (“Here, however, the question before the court is
precisely whether the officer’s conduct was an objectively reasonable search.”). And
Jardines also explained that the mere purpose of discovering information does not,
standing alone, render conduct unreasonable under the Fourth Amendment. “[I]t is
not a Fourth Amendment search to approach the home in order to speak with the
occupant, because all are invited to do that. The mere ‘purpose of discovering
information’ in the course of engaging in that permitted conduct does not cause it to
violate the Fourth Amendment.” Id. at 9 n.4 (citation omitted). So to the extent that
White argues that the officers’ “purpose of discovering information” about possible
illegal activity renders the second entry impermissible, that purpose, without more,
cannot be enough to support his conclusion.




                                          -7-
       So the question then falls back to whether the officers’ conduct in this case was
“permitted conduct,” that is, whether the officers had an implicit license to do what
they did: approach White’s door and knock. That is so because so long as that
conduct falls in the category of “permitted,” the officers’ gathering of information “in
the course of engaging in” that conduct is also permissible. Id. More specifically, in
this case, if the officers were lawfully on the curtilage by virtue of the knock-and-talk
license, their plain smell of marijuana cannot constitute a search. 1 Wayne R.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.2(a) (5th ed.
2012) (“Just as what an officer sees where he is lawfully present is a nonsearch plain
view, what he learns by reliance upon his other senses while so located is likewise no
search and thus per se lawful.”); see also Jardines, 569 U.S. at 15 n.2 (Kagan, J.,
concurring) (“[A] human sniff is not a search, we can all agree.”).

       Jardines explains that whether the officers had an implicit license to enter a
constitutionally-protected area in turn depends upon the purpose for which they
entered. 569 U.S. at 10. But in Jardines, the objective behavior of the officers—not
their subjective intent—showed that their purpose was to conduct a search. Id.
Walking up to the front porch to conduct a search (with a drug-sniffing dog) was
clearly outside the implicit knock-and-talk license. Here, by contrast, the officers
approached the home, knocked promptly, and waited to be received. See id. at 8.
These facts are not in dispute. Accordingly, the officers’ second entry was a
permissible knock-and-talk.6



      6
        Contrary to the concurrence’s suggestion, we do not use the plain smell
doctrine to “validate” the officers’ second visit. We validate the second visit by
evaluating the officers’ objective conduct, which, as explained, comports with the
knock-and-talk exception to the warrant requirement. And once lawfully on the
curtilage by virtue of the knock-and-talk license, under the plain smell doctrine, the
officers’ subsequent detection of marijuana does not constitute a search.


                                          -8-
       The concurrence would hold that, under Jardines, the second entry violated
White’s Fourth Amendment rights because additional officers drove to his home and
they all had the subjective intent of gathering information in the course of conducting
a knock-and-talk. As an initial matter, we fail to see why the number or type of
officers in this case would render the second entry impermissible. But more
significantly, Jardines did not hold that the scope of a license is dependent on the
officers’ subjective intent. To the contrary, it reiterated long-standing precedent
holding that conduct “that is objectively reasonable” will not be deemed unlawful
simply because it may have, subjectively, been motivated by impermissible or
pretextual reasons, such as racial harassment. 569 U.S. at 10; Morgan v. Fairfield
Cty., 903 F.3d 553, 563 (6th Cir. 2018) (“[Under Jardines, t]he subjective intent of
officers is irrelevant if a search is otherwise objectively reasonable, but subjective
intent cannot make reasonable an otherwise unreasonable intrusion onto a constitu-
tionally protected area.”), cert. denied, 139 S. Ct. 1377 (2019). Under Jardines, the
standard remains an objective one. White points to nothing in the record that reveals
that the officers engaged in objectively unreasonable conduct in approaching his door
to knock the second time. Cf. Morgan, 903 F.3d at 563 (rejecting officers’ contention
that their conduct fell within knock-and-talk exception where they surrounded a
house and positioned themselves in the backyard); United States v. Maxi, 886 F.3d
1318, 1326–27 (11th Cir.) (holding that officers exceeded scope of knock-and-talk
license where “ten officers surrounded the building at night, one with his gun
drawn”), cert. denied, 139 S. Ct. 351 (2018). As we held in Bearden, the district court
properly denied White’s motion to suppress.7


      7
        The concurrence also suggests that our holding “seem[s] to legitimize roving
government search patrols approaching peoples’ homes or entering their curtilages
under the guise of ‘knock and talk.’” It does no such thing. Our holding is limited
to the facts of this case. As explained, the undisputed evidence shows that on the
second entry, the officers in fact conducted a knock-and-talk: they approached
White’s door, knocked, and waited to be received.


                                         -9-
                                           III

       The second issue that White challenges on appeal is the district court’s denial
of his motion to dismiss the indictment. Before the district court, White argued that
the policy statements that then-Deputy Attorney General James Cole issued to U.S.
Attorneys in August 2013 and February 2014 (collectively, the Cole Memos) about
the federal enforcement priorities for marijuana-related conduct resulted in
discriminatory application of federal law. Specifically, he argued that pursuant to the
Cole Memos, the federal government prosecuted him while granting impunity to
those engaged in similar conduct in areas where marijuana is legal under state law,
violating his rights under the Equal Protection Clause.8 The district court rejected this
argument, finding that White had failed to show the necessary elements of a selective
prosecution claim. On a selective prosecution claim like the one White raises here,
“we review the district court’s legal conclusions de novo and its factual findings for
clear error.” United States v. Chappell, 779 F.3d 872, 879 (8th Cir. 2015) (explaining
the proper standard of appellate review on vindictive prosecution claims); see also
United States v. Peterson, 652 F.3d 979, 980–81 (8th Cir. 2011) (per curiam).

       We conclude that the district court properly denied White’s motion. Subject
to constitutional constraints, “[i]n our criminal justice system, the Government retains
‘broad discretion’ as to whom to prosecute.” Wayte v. United States, 470 U.S. 598,
607 (1985) (quoting United States v. Goodwin, 457 U.S. 368, 380 n.11 (1982)). “One
of these constraints, imposed by the equal protection component of the Due Process
Clause of the Fifth Amendment, is that the decision whether to prosecute may not be
based on ‘an unjustifiable standard such as race, religion, or other arbitrary classifica-


      8
        We note that the Cole Memos have since been rescinded and also that the first
of the Cole Memos was issued after White’s first indictment. Neither party briefed
the effect of the date of issuance on this appeal, so we do not discuss the issue here.


                                          -10-
tion.’”9 United States v. Armstrong, 517 U.S. 456, 464 (1996) (citation omitted)
(quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)). The Supreme Court has analyzed
selective prosecution claims by “draw[ing] on ‘ordinary equal protection standards,’”
requiring a claimant to “demonstrate that the federal prosecutorial policy ‘had a
discriminatory effect and that it was motivated by a discriminatory purpose.’” Id. at
465 (quoting Wayte, 470 U.S. at 608)).

       We have interpreted this standard as requiring a selective prosecution claimant
to show “1) that he has been singled out for prosecution while others similarly
situated have not been prosecuted for similar conduct and 2) that the government’s
action in thus singling him out was based on an impermissible motive such as race,
religion, or the exercise of constitutional rights.” United States v. Parham, 16 F.3d
844, 846 (8th Cir. 1994). This “standard is a demanding one,” Armstrong, 517 U.S.
at 463, and one that White has failed to meet.

       We agree with the district court that White has not satisfied the first prong.
White relies solely on the Cole Memos to show that he has been singled out for
prosecution, but the Cole Memos do not “single out” anyone. The Cole Memos do
not “affirmatively . . . allow marijuana-growing operations in certain states,” as White
suggests. Rather, they merely set forth eight priorities to guide federal prosecutorial
discretion based on the “expectation that states and local governments that have

      9
        White styles his claim as one under the Fourteenth Amendment, but we note
that it is properly brought under the Fifth Amendment because it implicates the
federal government. See Cruz v. Hauck, 404 U.S. 59, 62 n.10 (1971) (Douglas, J.,
concurring) (“Although no explicit equal protection clause is directed by the
Constitution against the Federal Government the concept of equal protection of the
laws is incorporated into the Due Process Clause of the Fifth Amendment.”). In any
event, “[the] approach to Fifth Amendment equal protection claims has always been
precisely the same as to equal protection claims under the Fourteenth Amendment.”
Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975).


                                         -11-
enacted laws authorizing marijuana-related conduct will implement strong and
effective regulatory and enforcement systems that will address the threat those state
laws could pose to public safety, public health, and other law enforcement interests.”
Memorandum from James M. Cole, Deputy Att’y Gen., U.S. Dep’t of Justice, to All
U.S. Att’ys, at 2 (Aug. 29, 2013), https://www.justice.gov/iso/opa/resources/
3052013829132756857467.pdf. These enforcement priorities include “[p]reventing
the distribution of marijuana to minors,” “[p]reventing revenue from the sale of
marijuana from going to criminal enterprises, gangs, and cartels,” and “[p]reventing
violence and the use of firearms in the cultivation and distribution of marijuana.” Id.
at 1–2. The Cole Memos are “intended solely as a guide to the exercise of investiga-
tive and prosecutorial discretion,” and “do[] not alter in any way the [Department of
Justice]’s authority to enforce . . . federal laws relating to marijuana, regardless of
state law.” Id. at 4 (emphasis added). Indeed, the Cole Memos stress that “[e]ven in
jurisdictions with strong and effective regulatory systems,” individuals who threaten
federal priorities will still be subject to federal prosecution. Id. By their terms, then,
the Cole Memos do not create a policy by which residents of states where marijuana
has been legalized are affirmatively treated differently from those of states where it
has not.

       White also fails to meet the first prong because he has not shown that he
engaged in “similar conduct” as individuals that he alleges have not been prosecuted.
See United States v. Smith, 231 F.3d 800, 810 (11th Cir. 2000) (defining “a
‘similarly situated’ person for selective prosecution purposes as one who engaged in
the same type of conduct, which means that the comparator committed the same basic
crime in substantially the same manner as the defendant—so that any prosecution of
that individual would have the same deterrence value and would be related in the
same way to the Government’s enforcement priorities and enforcement plan”). White
argues that the Cole Memos “allow[] other residents of the United States to engage
in the same or similar conduct”—presumably large-scale marijuana cultiva-



                                          -12-
tion—without facing federal prosecution. But White misses the point. He is not
engaging in the same or similar conduct as residents of states that have legalized
marijuana because residents of those states are subject to strict regulatory and
enforcement systems to which White simply is not subject.10 Because White is not
complying with the regulations that legal cultivators in other states comply with, he
is not engaging in the same or similar conduct. And White has not shown, or even
alleged, that a resident of a state that has legalized marijuana would not be prosecuted
for cultivating it in the same manner that White cultivated it, that is, without
compliance with the state regulatory system. Accordingly, we conclude that the
district court did not clearly err in finding that White had failed to meet the first prong
of a selective prosecution claim.

         Similarly, the district court did not clearly err in finding that White failed to
show that a constitutionally impermissible motive such “racial or religious bias or the
. . . exercise of a constitutional right” played a role in his prosecution. United States
v. Leathers, 354 F.3d 955, 963 (8th Cir. 2004); see also Peterson, 652 F.3d at 981
(selective prosecution claim failed where defendant did not show that race or gender
played a role in the government’s charging decisions). The Cole Memos explain that
in considering federal prosecutions under the Controlled Substances Act, the
“primary question” should be “whether marijuana-related conduct implicates one or
more of [the eight] enforcement priorities” specified in the memorandums.
Memorandum from James M. Cole, Deputy Att’y Gen., U.S. Dep’t of Justice, to All
U.S. Att’ys, at 1–2 (Feb. 14, 2014). We cannot find, and White does not point to, any
impermissible motive in the enforcement priorities highlighted in the Cole Memos.
See Wayte, 470 U.S. at 607 (“Such factors as . . . the Government’s enforcement

      10
         Before the district court, White argued that the so-called Right to Farm
Amendment to the Missouri Constitution legalized cultivation of marijuana in
Missouri. But the Missouri Supreme Court has since rejected that argument. See
State v. Shanklin, 534 S.W.3d 240, 242–43 (Mo. banc 2017).


                                           -13-
priorities[] and the case’s relationship to the Government’s overall enforcement plan
are not readily susceptible to the kind of analysis the courts are competent to
undertake.”).

      For all the aforementioned reasons, the judgment of the district court is
affirmed.

GRASZ, Circuit Judge, concurring in part and concurring in the judgment.

       I agree the district court properly denied White’s motion to dismiss his
indictment on equal protection grounds and I join Section III of the court’s opinion.
I write separately because I have serious doubts about whether the second warrantless
entrance onto White’s property by law enforcement officers complied with the Fourth
Amendment under the standard the Supreme Court articulated in Florida v. Jardines,
569 U.S. 1 (2013).

       In Jardines, the Court concluded there was no implied license for a law
enforcement officer to “introduc[e] a trained police dog to explore the area around the
home in hopes of discovering incriminating evidence . . . [because t]here is no
customary invitation to do that.” Id. at 9. The Court explained that “[t]he scope of
a license—express or implied—is limited not only to a particular area but also to a
specific purpose. . . . Here, the background social norms that invite a visitor to the
front door do not invite him there to conduct a search.” Id. Importantly, the Court
rejected the argument that the purpose of an entrance into a home’s curtilage cannot
be considered due to the Court’s precedents holding that “the subjective intent of the
officer is irrelevant.” Id. at 10. It is true that “a stop or search that is objectively
reasonable is not vitiated by the fact that the officer’s real reason for making the stop
or search has nothing to do with the validating reason.” Id. But in Jardines, whether
the search was objectively reasonable “depend[ed] upon whether the officers had an



                                          -14-
implied license to enter the porch, which in turn depend[ed] upon the purpose for
which they entered.” Id. The Court concluded the officers’ “behavior objectively
reveal[ed] a purpose to conduct a search, which is not what anyone would think he
had license to do.” Id.

       My concern with the court’s opinion is that while it acknowledges Jardines,
its analysis fails, in my view, to apply Jardines’ holding. Under Jardines, we must
examine whether the officers acted within the scope of the implied license to enter
White’s curtilage, that is, whether they remained within the scope of what “any
private citizen might do.” Id. at 8 (quoting Kentucky v. King, 563 U.S. 452, 469
(2011)). The scope of this implied license “is limited not only to a particular area but
also to a specific purpose.” Id. at 9.

        The officers’ admitted purpose, together with how this purpose was manifested
in their objective behavior, is key to applying Jardines. Officer Simpson testified in
the suppression hearing that after running into drug task force officers at another
location, he “advised them of what we had smelled and what we had noticed while
making contact with Charles White earlier that day. And upon that discussion with
the task force officers, we decided [to] try to establish contact with Mr. White again
. . . and see if we could continue to smell what I had smelled earlier that day.” The
officers’ return to White’s residence with the drug task force officers, together with
Officer Simpson’s candid statement about their purpose, objectively revealed that
their purpose was not just to speak with White, but to confirm the smell of green
marijuana on White’s property. In Jardines, the Court held there was no implied
license to go onto a front porch with a drug dog for the purpose of sniffing out
evidence of drugs. I would conclude that neither was there an implied license for the
officers to return to White’s curtilage with a team of drug task force members for the
purpose of sniffing out evidence of drugs. This second visit to confirm the smell of
green marijuana lies in stark contrast to the first visit, which the record unequivocally



                                          -15-
shows was done for the purpose of speaking with White in search of information
about an unrelated investigation.

       To be clear, while the subjective intent to search for evidence, standing alone,
does not implicate Jardines, the officers’ objective behavior does. The officers did
not simply exercise the license the public had to approach White’s home to “knock
and talk.” Rather, they returned to White’s home a second time accompanied by
COMET Drug Task Force officers who had agreed to travel to White’s residence to
help smell for marijuana. Surely, as in Jardines, there “is no customary invitation to
do that.” Jardines, 569 U.S. at 9. To conclude otherwise would seem to legitimize
roving government search patrols approaching peoples’ homes or entering their
curtilages under the guise of “knock and talk.” If the Constitutional right to be secure
from unreasonable government searches of one’s home is to be effectuated, surely
such patrols cannot be rationalized as being licensed by the “habits of the country.”

       I find unconvincing the court’s invocation of the plain smell doctrine to
validate the second visit. Under the plain view doctrine, “[a]n officer does not violate
the Fourth Amendment by viewing [or smelling] evidence from a position he lawfully
occupies, remembering it, and using it later” to obtain a search warrant. United States
v. Morgan, 842 F.3d 1070, 1075 (8th Cir. 2016). But before applying the plain view
doctrine we must first answer the threshold question of whether the officers were
lawfully present on White’s curtilage. And answering that question requires looking
at the purpose of the entrance. As discussed above, the record shows the objectively
demonstrated purpose here was not simply to speak with White, but for the officers
(joined now by drug task force members) to “see if [they] could continue to smell
what [they] had smelled earlier that day.” In short, the officers’ behavior objectively
manifested an intent to conduct a warrantless search of White’s property rather than
conduct a permissible “knock and talk.”




                                         -16-
        While I respectfully disagree with the court’s analysis, I do concur in its
judgment affirming the district court’s denial of White’s suppression motion because
the denial was likely proper under the independent source doctrine. The officers’
statements in the search warrant affidavit regarding smelling green marijuana on their
first visit to White’s home — a visit that White rightly does not contend violated the
Fourth Amendment — was sufficient to create probable cause to support the search
warrant.11
                         ______________________________




      11
        The record also supports the conclusion that the other requirement for the
application of the independent source doctrine in this context is met: the officers
would have sought the search warrant even if they had not gone onto White’s
property a second time. See United States v. Swope, 542 F.3d 609, 613–14 (8th Cir.
2008). However, if the court were to resolve this case under the independent source
doctrine, it may be necessary to remand the case on a limited basis for the district
court to make a factual finding to that effect in the first instance. See United States
v. Rodriguez, 834 F.3d 937, 942–43 (8th Cir. 2016).


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