                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 December 2, 2014
              Plaintiff-Appellee,

v                                                                No. 314337
                                                                 St. Joseph Circuit Court
MICHAEL ANDREW RADANDT,                                          LC No. 12-017690-FH

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                No. 314431
                                                                 St. Joseph Circuit Court
MASON ALAN FULLER,                                               LC No. 11-017611-FH

              Defendant-Appellant.


Before: SHAPIRO, P.J., and WHITBECK and STEPHENS, JJ.

PER CURIAM.

        Both defendants entered conditional guilty pleas to one count of manufacturing between
20 and 200 marijuana plants, MCL 333.7401(2)(d)(ii), after the trial court denied their joint
motion to suppress evidence allegedly obtained in violation of the Fourth Amendment. This
Court denied their applications for leave to appeal. People v Radandt, unpublished order of the
Court of Appeals, entered March 14, 2013 (Docket No. 314337); People v Fuller, unpublished
order of the Court of Appeals, entered March 14, 2013 (Docket No. 314431). On remand from
our Supreme Court, we now consider, as on leave granted, whether the police officers in this
case unlawfully expanded the scope of a “knock and talk” procedure and, if a constitutional
violation occurred, whether the good-faith exception to the exclusionary rule applies. People v
Radandt, 495 Mich 920; 843 NW2d 166 (2014); People v Fuller, 495 Mich 920; 843 NW2d 167
(2014). Because we hold that the officers did not unlawfully expand the scope of the knock and
talk procedure, we do not address the applicability of the good-faith exception to the
exclusionary rule. The trial court’s order denying defendants’ motion to suppress is affirmed.


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                                       I. BACKGROUND

        St. Joseph County Sheriff’s Deputies Michael McCoy and Jeremiah Abnet testified at the
suppression hearing that in late August 2011, they received an anonymous tip that marijuana was
being grown at defendants’ home. In response to the tip, McCoy and Abnet went to the home to
attempt to speak with its residents using a “knock and talk” procedure. See People v Frohriep,
247 Mich App 692, 697; 637 NW2d 562 (2001). The officers’ stated intention was to make
contact with the residents in order to evaluate the tip. When the officers arrived, they found what
appeared to be a vacant house. The officers circled the entire house and knocked on doors in an
attempt to make contact with the residents, but were unsuccessful. While on the property, the
officers observed black plastic sheeting covering the upstairs windows in the rear of the home.
They also noticed a smoldering burn pit by a barn on the property that indicated either someone
was present at the home or had recently been there. McCoy testified that the black plastic
sheeting was indicative of a marijuana grow operation, but acknowledged that it was not by itself
sufficient to prove criminal activity. The officers also observed holes in the ground from which
it appeared plants had been pulled. McCoy testified that, based on his experience, the holes were
similar to those left when marijuana plants are pulled from the ground, but he acknowledged that
without the anonymous tip he would have no basis for making that conclusion. After circling the
property, the officers spoke with neighbors, who granted them permission to walk “trails” on
their property that abutted defendants’ property. From those trails, the officers observed
defendants’ backyard, but saw no further evidence of a marijuana grow operation. Finding
nothing that caused them to believe a crime was being committed, the officers left the property.
They did not request a search warrant at this time or do anything else to follow up on the tip.

        In December 2011, McCoy and Abnet received a second anonymous tip, containing
substantially similar information about an alleged marijuana grow operation at defendants’
property, and decided to return to the property in an attempt to make contact with the residents.
Again, the officers’ stated intent was to conduct a knock and talk procedure, so as to possibly
gain permission to search the premises in order to evaluate the tip. When the officers arrived this
time, there were two vehicles parked in the driveway, the door to a nearby barn was open, there
was a light on in the barn, power tools were scattered near the barn, and there was a dog running
loose on the property. The officers parked their vehicle in the driveway and proceeded toward
the home. They bypassed the door nearest the front (west) of the home, which entered only into
an enclosed porch, and instead knocked on a “middle” door just to the east of that first door.
Upon receiving no answer, the officers proceeded east along a “worn foot path” to the rear of the
home, where they knocked on a sliding glass door. While standing at the glass door, the officers
heard music and what sounded like two voices, and the officers observed the same black plastic
sheeting they had encountered during their previous visit. They also saw a vent fan in a second
story window. Finally, McCoy smelled the odor of marijuana. The plastic sheeting and vent fan
were only visible from the rear of the home. Further, the smell of marijuana could only be
detected from the rear of the home. After getting no response to their knocks, the officers left
and obtained a search warrant. They subsequently executed the search warrant, whereupon they
discovered approximately 45 marijuana plants and marijuana grow equipment.

        Defendants moved to suppress all evidence obtained during the officers’ visit to the
home, as well as all evidence subsequently derived from the execution of the search warrant, on
the basis that the officers impermissibly expanded the scope of a knock and talk procedure when

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they entered the backyard of the property. Defendants argued that the officers were not merely
conducting a knock and talk, but were clearly using the knock and talk as a subterfuge for
investigating the property for evidence of criminal activity. After hearing testimony on the issue,
the trial court denied defendants’ motion to suppress. The trial court made several factual
findings before denying suppression. In particular the court found that the officers stated
intention to “knock and talk” was credible, stating “I don’t think it was a subterfuge”. The court
also found that the side door was the ordinary entry door and that the officers followed a well-
worn path to the rear of the home observing an open door, tools and a loose dog. The court
found that it was in this effort that the officers heard voices and honestly thought that they would
encounter people to whom they could talk. It was then that the officers smelled the drugs
wafting from inside the home and left to request a warrant. The trial court reasoned that the
officers acted reasonably by proceeding into the backyard after they observed signs that the
residents were present either in or around the house but received no response to their knocks
nearer to the front curtilage of the house. The trial court noted that there was no fence blocking
entry into the backyard, and no signs indicating an intent to keep the public out. Further, the
officers followed an observable path to the rear door in an attempt to make contact with the
residents, and they had no reason to suspect that they would find evidence of criminal activity
while back there.

                                  II. MOTION TO SUPPRESS

        Defendants argue that the trial court erred in denying their motion to suppress. We
disagree. In a suppression hearing, we review the trial court’s ultimate decision de novo, but
review the trial court’s findings of fact for clear error. People v Brown, 297 Mich App 670, 674;
825 NW2d 91 (2012) (quotation and citation omitted). “A finding of fact is clearly erroneous if,
after a review of the entire record, an appellate court is left with a definite and firm conviction
that a mistake has been made.” People v Swirles (On Remand), 218 Mich App 133, 136; 553
NW2d 357 (1996).

        Both the United States and the Michigan Constitutions guarantee the right against
unreasonable searches and seizures. People v Champion, 452 Mich 92, 97; 549 NW2d 849
(1996); US Const Am IV; Const 1963, art 1, § 11. Generally, a search and seizure conducted
without a warrant is per se unreasonable unless it falls within a specific, well-defined exception
to the warrant requirement. Champion, 452 Mich at 98. One such exception is the plain view
exception. People v Galloway, 259 Mich App 634, 639; 675 NW2d 883 (2003). That exception
allows police officers to seize items in plain view “if the officer is lawfully in the position to
have that view and the evidence is obviously incriminatory.” Id. (citation omitted). By
extension, the plain smell doctrine provides that the plain smell of contraband may provide
probable cause for a search. People v Kazmierczak, 461 Mich 411, 426-427; 605 NW2d 667
(2000).

       On the record before us, we conclude that the trial court’s factual findings were supported
by the evidence and were not clearly erroneous. The officers entered upon defendants’ property
in December 2011 for the legitimate purpose of conducting a knock and talk; that is, to speak
with defendants about the tip they received. Frohriep, 247 Mich App at 697-698. The officers’
decision to move to the rear of the home, after receiving no response at the first direct entrance to


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the home, was reasonable in light of the various observable signs that the residents were present
either in or around the home.

        Defendants argue that the backyard constituted part of the curtilage of the home, such
that the officers’ entry was impermissible. While not untenable, such a claim lacks merit given
the fact that there was an observable path leading from the main entry to the rear sliding glass
door and the fact that defendants took no steps to protect the area from the public, such as putting
up a fence or “no trespassing” signs. See People v Powell, 477 Mich 860, 861; 721 NW2d 180
(2006), citing United States v Dunn, 480 US 294, 301; 107 S Ct 1134; 94 L Ed 2d 326 (1987).
Regardless, “[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). Thus, where officers are engaged in a knock and talk investigative procedure, they are
not categorically excluded from entering the curtilage if circumstances make it reasonable to
conclude that they might encounter the person being sought. See Hardesty v Hamburg Twp, 461
F 3d 646, 654 (CA 6, 2006). Such was the case here. Because the officers were lawfully present
in the backyard as part of an effort to make contact with defendants, the evidence they
discovered—including the plastic sheeting, vent fan, and smell of marijuana—could lawfully be
used in support of a search warrant.

        Finally, defendants argue that even if the officers’ conduct in December 2011 was
reasonable, their conduct in August 2011 was not, and therefore that initial visit impermissibly
tainted the subsequent visit. We need not address the propriety of the officers’ actions in August
2011, as both officers testified that they observed nothing on the premises on that occasion that
would establish probable cause or reasonable suspicion to believe that criminal activity was
afoot. To the contrary, the officers’ lawful observations in December 2011 were independently
sufficient to establish probable cause for a search warrant.

        In sum, the officers did not violate defendant’s constitutional rights when they observed
and smelled signs of criminal activity while present in defendants’ backyard in December 2011.
The trial court did not clearly err in finding that the officers had a legitimate reason for entering
the backyard, and it correctly denied defendants’ motion to suppress.

       Affirmed.

                                                              /s/ William C. Whitbeck
                                                              /s/ Cynthia Diane Stephens




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