                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 06a0338p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                    X
                            Plaintiffs-Appellants, -
 JOSEPH CARLETON HARDESTY, et al.,
                                                     -
                                                     -
                                                     -
                                                         No. 05-1346
          v.
                                                     ,
                                                      >
 HAMBURG TOWNSHIP, et al.,                           -
                           Defendants-Appellees. -
                                                    N
                     Appeal from the United States District Court
                    for the Eastern District of Michigan at Detroit.
                     No. 03-72054—John Feikens, District Judge.
                                      Argued: June 8, 2006
                             Decided and Filed: September 1, 2006
                Before: MARTIN, NORRIS, and McKEAGUE, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: Peter J. Osetek, OSETEK & ASSOCIATES, Ann Arbor, Michigan, for Appellants.
Marcia L. Howe, JOHNSON, ROSATI, LaBARGE, ASELTYNE & FIELD, Farmington Hills,
Michigan, G. Gus Morris, KUPELIAN, ORMOND & MAGY, Southfield, Michigan, for Appellees.
ON BRIEF: Peter J. Osetek, OSETEK & ASSOCIATES, Ann Arbor, Michigan, for Appellants.
Marcia L. Howe, JOHNSON, ROSATI, LaBARGE, ASELTYNE & FIELD, Farmington Hills,
Michigan, G. Gus Morris, KUPELIAN, ORMOND & MAGY, Southfield, Michigan, for Appellees.
         McKEAGUE, J., delivered the opinion of the court, in which NORRIS, J., joined. MARTIN,
J. (pp. 9-11), delivered a separate dissenting opinion.
                                       _________________
                                           OPINION
                                       _________________
         McKEAGUE, Circuit Judge. Plaintiffs appeal the summary judgment for Defendants in this
civil rights action alleging violation of Plaintiffs’ Fourth Amendment right to be free from
unreasonable search and seizure. For the following reasons, we affirm the district court’s dismissal
of all claims, but on different grounds.
                                       I. BACKGROUND
       On May 27, 2001, at 2:11 a.m., Officer Bullock arrested Julie Taylor, a minor, for drunk
driving. Taylor told Bullock that she had been consuming alcohol with Joseph Hardesty at the

                                                 1
No. 05-1346               Hardesty, et al. v. Hamburg Township, et al.                                          Page 2


Hardestys’ home. Officer Sanderson went to the Hardesty residence and kept it under observation
to ensure no other intoxicated minors attempted to drive away. After Bullock completed booking
Taylor, he met Sanderson and Officer Garbarcik at the Hardesty home to investigate the situation.
Shortly before Bullock arrived, Sanderson and Garbarcik approached the    front door of the Hardesty
residence. They pounded on the front door, but received no response.1 The officers then contacted
Livingston County dispatch and dispatch telephoned the Hardestys’ home, but nobody answered.
The officers knew where Plaintiff Kenneth Hardesty worked and called his workplace but were
unable to get in touch with him. Sanderson and Garbarcik believed someone was home because they
had observed lights in the house go off as they approached the house. When there was no response
at the front door or to the phone calls, the officers went around to the back of the house to try to
contact the people inside. Bullock arrived on the scene in time to go around to the back of the house
with Sanderson and Garbarcik.
        The Hardestys have a deck on the back of their home. This deck has stairs leading up to it
from the yard, and there is an entrance into the home from the deck. There are no pathways leading
from the front yard or front door to the deck. The three officers went around the house and onto the
deck and looked through the windows and sliding glass door into the house. The officers testified
that they observed Ryan Adam Dean inside, lying on a couch, with blood on his hands and pants.
The officers attempted to wake Dean by shining flashlights in his face and pounding on the window.
The officers allege that Dean did not respond or even move and that he appeared to not be breathing.
The officers contacted Sergeant DeBottis and advised him of the situation. DeBottis told the officers
that they should enter the house to check on the well-being of Dean, but should do as little damage
as possible entering the house.
        The officers entered a car parked in the driveway and used a garage door opener, found
therein, to enter the home. Two officers from the Pinckney Police Department arrived on the scene
in time to enter the house with the Hamburg officers. All the officers entered the Hardesty residence
through the garage without the permission of the owners or a warrant.
        Inside the house, the officers found three males under the age of twenty-one–Plaintiff Joseph
Hardesty and his friends Ryan Dean and Tim Brewer. Ryan Dean was found lying on the couch and
did have blood on his hands, but was not in need of medical attention. The officers observed beer
cans, some empty and some half full, and could smell alcohol on all the minors. The Hamburg
officers administered a breath test on the minors and issued tickets for minor in possession of
alcohol. Brewer’s minor in possession case was dismissed after the state court ruled that the
officers’ entry into the Hardesty home was illegal. After that ruling, the charges against Joseph
Hardesty were dismissed as well.
        Joseph Hardesty and his father filed a § 1983 suit in federal district court against the five
officers who entered the Hardesty home, Sergeant Debottis who instructed the Hamburg officers to
enter the house, Hamburg Township, the Hamburg Police Chief, the Supervisor of Hamburg, two
Hamburg trustees, the village of Pinckney, and the Pinckney Police Chief. All of the Hardestys’
claims are based on the allegation that the officers’ warrantless search of the Hardesty residence was
unconstitutional. Plaintiffs and Defendants filed cross-motions for summary judgment. The district
court ruled that the state court decision regarding the legality of the search was not binding, the
officers’ actions were constitutional, and that even if they were not constitutional, qualified
immunity immunized the officers from suit. Consequently, the district court granted Defendants’
motions and dismissed all claims. Plaintiffs filed a timely appeal.



         1
          The officers also testified that they rang the doorbell, but Kenneth Hardesty testified that the residence does
not have a doorbell.
No. 05-1346            Hardesty, et al. v. Hamburg Township, et al.                               Page 3


                                            II. ANALYSIS
A.      Standard of Review
        This court reviews an order granting summary judgment de novo. Johnson v. Karnes, 398
F.3d 868, 873 (6th Cir. 2005); Daniels v. Woodside, 396 F.3d 730, 734 (6th Cir. 2005);
Valentine-Johnson v. Roche, 386 F.3d 800, 807 (6th Cir. 2004). Summary judgment is proper “if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); accord Johnson, 398 F.3d
at 873; Daniels, 396 F.3d at 734; Leadbetter v. Gilley, 385 F.3d 683, 689 (6th Cir. 2004). When
deciding a motion for summary judgment, the court must view the evidence and draw all reasonable
inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Johnson, 398 F.3d at 873; Daniels, 396 F.3d at 734; Valentine-Johnson, 386
F.3d at 807. Any direct evidence offered by the plaintiff in response to a summary judgment motion
must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004). Nevertheless,
the “mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine issue
of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original); accord Leadbetter, 385 F.3d at 689-90; Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir.
2003).
B.      Preclusive Effect of State Court Judgment
         Plaintiff Joseph Hardesty was charged with being a minor in possession of alcohol in state
court. The state court granted his motion to suppress and dismissed the charge on the basis that the
police officers’ entrance onto the back deck of the Hardesty home was a constitutionally
impermissible warrantless search. The state court reasoned that since the perceived medical
emergency was not observed by the officers until after they entered the curtilage of the home, i.e.,
the back deck, what they saw while they were impermissibly within the curtilage could not be used
to justify the entry into the home itself. The federal district court below held that it was not bound
by the state court decision on the legality of the search because neither the defendants nor Plaintiff
Kenneth Hardesty were parties to the state court litigation. On appeal, Joseph Hardesty argues that
at least he is entitled to preclude the defendants from taking a position contrary to the ruling of the
state court.
        Federal courts give the same preclusive effect to state court judgments as those judgments
would receive in the courts of the rendering state. Migra v. Warren City Sch. Dist. Bd. of Educ., 465
U.S. 75, 81 (1984). “Under Michigan law, issue preclusion applies when 1) there is identity of
parties across the proceedings, 2) there was a valid, final judgment in the first proceeding, 3) the
same issue was actually litigated and necessarily determined in the first proceeding, and 4) the party
against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the earlier
proceeding.” Darrah v. City of Oak Park, 255 F.3d 301, 311 (6th Cir. 2001) (citing People v.
Gates, 452 N.W.2d 627, 630-31 (Mich.)). The first element is met when the litigants were parties
to a prior action or were privy to parties to a prior action. Id. None of the defendants were parties
to the state court prosecution. Plaintiffs argue that Defendants were in privity with the State of
Michigan which prosecuted the minor-in-possession case. Plaintiffs cite a footnote in an Eighth
Circuit case which indicates this argument would be valid under North Dakota claim preclusion law.
See Patzner v. Burkett, 779 F.2d 1363, 1369 n.7 (8th Cir. 1985). However, the cases applying
Michigan law have all held that police officer defendants in a § 1983 case are not in privity with the
prosecution of a related criminal case and do not have a personal stake in the outcome of the
criminal case. See Von Herbert v. City of St. Clair Shores, 61 Fed. Appx. 133, 136 n.1 (6th Cir.
2003) (unpublished); Burda Brothers, Inc. v. Walsh, 22 Fed. Appx. 423, 430 (6th Cir. 2001)
No. 05-1346           Hardesty, et al. v. Hamburg Township, et al.                               Page 4


(unpublished); Kegler v. City of Livonia, 1999 WL 133110, at *2 n.2 (6th Cir. 1999) (unpublished);
Glass v. Abbo, 284 F. Supp. 2d 700, 705-06 (E.D. Mich. 2003). Therefore, collateral estoppel
cannot be used offensively to preclude the litigation of an issue addressed in an associated criminal
case. In light of this line of persuasive authority, the district court did not err in coming to the same
conclusion in this case.
C.      Hamburg Defendants
        Plaintiffs’ § 1983 case against the Hamburg Defendants is based on the contention that the
Hamburg officers violated the Fourth Amendment when they went onto the back deck of the
Hardesty home and entered the home without a search warrant. The Fourth Amendment provides
that individuals shall be free from warrantless unreasonable searches and seizures in their “persons,
houses, papers, and effects.” U.S. Const. Amend. IV. There are only a few exceptions to the rule
that the government must obtain a warrant supported by probable cause to intrude into a private
dwelling. Thompson v. Louisiana, 469 U.S. 17, 19-20 (1984). These exceptions to the Fourth
Amendment prohibition exist where the public interest requires there be a more flexible application
of the rule. Arkansas v. Sanders, 442 U.S. 753, 759, (1979). Two of these exceptions are voluntary
consent to search and exigent circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973);
Michigan v. Tyler, 436 U.S. 499, 509 (1978). Exigent circumstances include a Fourth Amendment
warrant exception where law enforcement faces a “need to protect or preserve life or avoid serious
injury.” Mincey v. Arizona, 437 U.S. 385, 392-93 (1978). The Supreme Court has extended Fourth
Amendment protections to the curtilage around a house. Oliver v. United States, 466 U.S. 170, 180
(1984). Curtilage is the land surrounding and associated with the home which “harbors the intimate
activity associated with the sanctity of a man’s home and the privacies of life.” United States v.
Dunn, 480 U.S. 294, 300 (1987) (internal quotation omitted).
        1.      Curtilage
        The only basis the Hamburg officers assert for entering the Hardesty home without consent
or a warrant was their observation of a young man lying on a couch with blood on his hands and
pants, apparently not breathing, and unresponsive to loud noises and bright lights. The officers did
not make this observation until they left the front door, went around to the back of the house, went
onto the back deck, and peered in the windows and door at the back of the house. Plaintiffs argue
that the officers’ presence on the back deck without a warrant or legitimate basis for a warrantless
search was a violation of the Fourth Amendment because the back deck is part of the home’s
curtilage. The district court held that the back deck of the Hardesty home is not part of the home’s
curtilage.
        The Supreme Court has set forth four factors to be used to determine whether an area is part
of a home’s curtilage. United States v. Dunn, 480 U.S. 294, 301 (1987). The four 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.
These factors are not to be applied mechanically, but are simply “useful analytical tools” to consider
the central question of “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.
        Since the back deck directly abuts the house, the first factor of proximity to the home clearly
weighs in favor of finding the back deck to be within the home’s curtilage. The second factor is
somewhat less clear. While there is no fence enclosing the Hardesty yard or property, there is a line
of pine trees along the back of the property and the sides of the property appear to be bounded by
trees as well. There is also a railing around the deck itself. The third factor weighs in favor of
finding the back deck to be curtilage. There was a hot tub built into the deck and the Hardestys
No. 05-1346           Hardesty, et al. v. Hamburg Township, et al.                              Page 5


frequently kept a grill and table out on the porch as well. The Sixth Circuit has held the presence
of pruned trees, a picnic table, and firepit to be sufficient to indicate that an area was “used for the
activities and privacies of domestic life.” Widgren v. Maple Grove Township, 429 F.3d 575, 582
(6th Cir. 2005). The presence of space for gardening and hanging laundry out to dry has also been
found to weigh in favor of finding an area to be curtilage. United States v. Jenkins 124 F.3d 768,
773 (6th Cir. 1997). Like gardening and doing laundry, using a hot tub is an activity which is
associated with the activities and privacies of domestic life. The fourth factor also weighs in favor
of finding the back deck to be curtilage. The placement of the deck directly behind the house
protects the deck from being visible to people passing by. See Jenkins, 124 F.3d at 773 (observing
that the placement of the back yard behind the house naturally protected it from the view of passers
by on the only public road adjoining the property). The testimony in the record that neighbors could
see the back deck through the rows of pine trees along the back of the Hardestys’ yard does not
undermine this conclusion. An area can be curtilage even where neighbors have a view of the area.
See Daughenbaugh v. Tiffin, 150 F.3d 594, 600-01 (6th cir. 1998) (holding that a home’s backyard
was curtilage in spite of evidence that neighbors could see at least a portion of the yard).
        Consideration of the Dunn factors indicates that the Hardestys’ back deck is part of the
home’s curtilage. This conclusion is further supported by the line of Sixth Circuit cases holding that
the backyard of a home is part of the curtilage. Widgren, 429 F.3d at 582; Daughenbaugh, 150 F.3d
at 601 (“The backyard and area immediately surrounding the home are really extensions of the
dwelling itself.”); Jenkins, 124 F.3d at 773. This is the case even where a yard is not surrounded
by a fence. See Widgren, 429 F.3d at 582. There is nothing about the Hardestys’ backyard which
distinguishes it from any of the backyards the Sixth Circuit has held to be curtilage. Since the case
law compels the conclusion that the Hardestys’ backyard is part of the home’s curtilage, the back
deck–which is located within the backyard and is even more closely associated with the activities
of the home–must logically be within the curtilage as well. The district court’s conclusion to the
contrary was error.
       2.      Knock and Talk
        Defendants argue that even if the back deck was part of the home’s curtilage, the Hamburg
officers did not violate the Fourth Amendment when they went onto the deck in order to knock at
the back door after nobody answered at the front door. Plaintiffs acknowledge that the officers were
permitted to go to the front door to knock for purposes of speaking with the occupants or asking for
consent to search the premises. See, e.g., United States v. Thomas, 430 F.3d 274, 277 (6th Cir.
2005); United States v. Chambers, 395 F.3d 563, 568 n.2 (6th Cir. 2005); Ewolski v. City of
Brunswick, 287 F.3d 492, 504-05 (6th Cir. 2002). However, Plaintiffs assert that this principle did
not authorize the officers to proceed to the back door.
        Defendants contend that the same legal principle which permits officers to employ the knock
and talk investigative technique at the front door also justifies the decision to go to the back door
under the circumstances of this case. Defendants point out that they had reason to believe someone
was home due to the presence of multiple cars in the driveway and the fact that an interior light had
been extinguished as the officers proceeded up the driveway. Therefore, they argue that when there
was no answer at the front door, they were permitted to go around to the back of the house to look
for another way of attempting to contact the individuals present in the house. This circuit has
recognized the legitimacy of the knock and talk investigative technique in general, but has not
previously had occasion to consider whether the principle may be extended beyond the front door
to an inquiry at the back door.
        The Third, Fourth, Eighth, and Ninth Circuits have all been faced with situations where
police officers knocked on a front door and, upon not receiving an answer, proceeded to the back
door. Estate of Smith v. Marasco, 318 F.3d 497, 520-21 (3d Cir. 2003); United States v. Bradshaw,
No. 05-1346           Hardesty, et al. v. Hamburg Township, et al.                             Page 6


490 F.2d 1097, 1100 (4th Cir. 1974); United States v. Anderson, 552 F.2d 1296, 1300 (8th Cir.
1977); United States v. Hammett, 236 F.3d 1054, 1060 (9th Cir. 2001). All of these circuits held that
a knock and talk can be extended to the back door or backyard under certain circumstances. The
Ninth Circuit has stated that “an officer may, in good faith, move away from the front door when
seeking to contact the occupants of a residence.” Hammett, 236 F.3d at 1060. The Fourth Circuit
has held that “the Fourth Amendment does not prohibit police, attempting to speak with a
homeowner, from entering the backyard when circumstances indicate they might find him there.”
Alvarez v. Montgomery County, 147 F.3d 354, 356 (4th Cir. 1998). The Third Circuit has held that
“[w]here officers are pursuing a lawful objective, unconnected to any search for the fruits and
instrumentalities of criminal activity, their entry into the curtilage after not receiving an answer at
the front door might be reasonable as entry into the curtilage may provide the only practicable way
of attempting to contact the resident.” Marasco, 318 F.3d at 520.
         We adopt an approach similar to those taken by our sister circuits and hold that the officers’
decision to proceed around the house to seek out a back door was within the scope of the knock and
talk investigative technique already recognized in this circuit. Police officers are permitted to enter
private property and approach the front door in order to ask questions or ask for consent to search
the premises. But knocking at the front door will not always result in police officers being able to
initiate the permitted conversation. The most obvious example is where nobody is at home. Even
where someone is at home, knocking at the front door may go unheard. When the circumstances
indicate that someone is home and knocking at the front door proves insufficient to initiate a
conversation with the person sought, officers should not be categorically prevented from carrying
out their investigative function. Therefore, we hold that where knocking at the front door is
unsuccessful in spite of indications that someone is in or around the house, an officer may take
reasonable steps to speak with the person being sought out even where such steps require an
intrusion into the curtilage. In this case, there were indications that someone was present within the
Hardesty home, knocking at the front door proved unsuccessful, proceeding around the house and
onto the back deck was a reasonable step, and that step was directed towards initiating a
conversation with the person or persons in the house. Therefore, the Hamburg officers’ entry into
the curtilage in order to effectuate the knock and talk investigative technique did not violate
Plaintiffs’ Fourth Amendment rights.
       3.      Medical Emergency
         The three officers who went to the back door all testified that once on the back deck they
observed a young man lying on a couch inside the house whose hands and pants were bloody and
who appeared to not be breathing. They all testified that they beat on the door and side of the house,
shined their flashlights in the young man’s eyes, and shouted, but nothing roused him. Plaintiffs
offered testimony that the only window along the back of the house from which the couch could be
seen was covered with closed draperies. Therefore, they argue that the officers could not have seen
what they claim through the closed draperies and are lying to create a justification for their
warrantless entry into the Hardesty home. The district court pointed out that even according to
Plaintiffs’ testimony it would have been possible for the officers to see whether a person was lying
on the couch through the closed drapes, even though they would not necessarily have been able to
tell that the person was a young man or been able to see blood on his hands and pants. The district
court then concluded that, in the context of this case, the presence of a person on a couch not
responding to lights shining in his eyes and loud shouting and banging was sufficient to give the
officers a reasonable belief that a medical emergency existed.
       The Supreme Court has recognized that the warrant requirement of the Fourth Amendment
does not necessarily apply to police responding to emergency situations. Mincey v. Arizona, 437
U.S. 385, 392 (1978) (observing that “[n]umerous state and federal cases have recognized that the
Fourth Amendment does not bar police officers from making warrantless entries and searches when
No. 05-1346           Hardesty, et al. v. Hamburg Township, et al.                              Page 7


they reasonably believe that a person within is in need of immediate aid”); see also Thacker v. City
of Columbus, 328 F.2d 244, 253 (6th Cir. 2003). Such a scenario falls within the exigent
circumstances exception to the warrant requirement. See United States v. Williams, 354 F.3d 497,
503 (6th Cir. 2003). The government bears the burden of proving that exigent circumstances such
as a medical emergency existed to justify a warrantless search. United States v. Bates, 84 F.3d 790,
794 (6th Cir. 1996).
        There were three officers who went to the back door of the Hardesty home, Officers Bullock,
Sanderson and Garbarcik. Bullock testified that once on the back deck they looked through the
sliding glass door and windows to see if they could see anyone inside the house. He stated that he
saw a very young man lying on the couch with blood on his hands and pants who appeared to not
be breathing. Bullock went on to describe how he and the other officers pounded on the window
and shined their lights in the young man’s face to see if he was okay, but received no response.
Bullock also testified that they saw empty beer cans and cartons in the house, including one or two
cans on the coffee table in front of the individual on the couch. Sanderson gave essentially the same
description of what he saw while looking through the window from the back deck and their efforts
to rouse the individual seen on the couch. Garbarcik also testified to the same essential elements
of what was seen in the house: empty beer cans and a non-responsive individual lying on a couch
with some blood on his hand and pants who appeared to not be breathing.
        Joseph Hardesty testified that earlier in the evening on the night in question he had closed
the drapes covering the windows in the back of the house and had not subsequently re-opened them.
Sanderson stated that there were no drapes or other window treatments covering the window when
he looked inside and saw the person on the couch. Bullock stated that he could see through the
window and did not recall any drapes or anything else covering the window. The foregoing
testimony demonstrates that there is a genuine issue of fact concerning whether drapes were
covering the window from which the couch could be viewed.
         Defendants do not dispute that there is an issue of fact about the drapes being open or closed.
Instead, they argue that this fact is not material because even if the drapes were closed they could
still have seen enough through the closed drapes to give them a reasonable belief that there was a
medical emergency. Kenneth Hardesty testified that even with the drapes closed “[y]ou would be
able to observe if you were within four or five foot of that window a individual on the couch. You
would not be able to tell if it was a man or a woman. You would just be able to see a form on the
couch.” (JA 225-26.) He went on to state that from that position a person could not really
distinguish colors or see fine movements. Therefore, the facts taken in the light most favorable to
Plaintiffs are that the drapes were closed, the officers could not see blood on the person lying on the
couch, the officers could not determine whether the person lying on the couch was breathing, but
the officers could see that there was an individual lying on the couch.
        Even taking the facts in the light most favorable to Plaintiffs, there was a basis for the
officers to reasonably believe a medical emergency existed. The reason for their visit to the
Hardesty residence was a report that minors were consuming alcohol there that night. Upon arriving
at the back door they saw a person lying on a couch who did not respond to loud knocking on the
door and window or bright lights shining in his face. Given the known dangers of excessive alcohol
consumption pointed out by the district court, under these circumstances the officers could have
reasonably believed that the individual on the couch was suffering from alcohol poisoning. That
reasonable belief was a sufficient basis for entering the Hardesty residence without a warrant or
consent. Since the exigent circumstances exception to the warrant rule applied, the officers did not
violate the Fourth Amendment when they entered the Hardesty home.
No. 05-1346           Hardesty, et al. v. Hamburg Township, et al.                              Page 8


D.      Pinckney Defendants
        Plaintiffs’ § 1983 case against the Pinckney Defendants is based on the contention that the
Pinckney officers violated the Fourth Amendment when they entered the Hardesty home without
a search warrant. The Pinckney officers arrived on the scene after the Hamburg officers had gone
to the back door, looked into the windows, and determined that they needed to enter the house in
order to see if medical assistance was required. The Pinckney officers entered the house with the
Hamburg officers based upon the information provided by the Hamburg officers that an individual
in the house appeared unconscious and bleeding. Reliance upon such information insulates the
Pinckney officers from civil liability in the event the information relied upon was defective. See
United States v. Hensley, 469 U.S. 221, 230 (1985); Whitely v. Warden, 401 U.S. 560, 568 (1971);
Feathers v. Aey, 319 F.3d 843, 851 (6th Cir. 2003). Therefore, even if the Hamburg officers had
violated the Fourth Amendment in the course of learning of the apparent emergency, the Pinckney
officers’ entry into the house based on that information would not subject the Pinckney officers to
§ 1983 liability. Consequently, there is a separate and independent basis for affirming the grant of
summary judgment in favor of the Pinckney Defendants.
                                        III. CONCLUSION
        The evidence taken in the light most favorable to Plaintiffs does not establish a constitutional
violation. Therefore, all Defendants are entitled to judgment as a matter of law in their favor. The
order of the district court dismissing all claims is AFFIRMED.
No. 05-1346           Hardesty, et al. v. Hamburg Township, et al.                             Page 9


                                        _________________
                                            DISSENT
                                        _________________
        BOYCE F. MARTIN, JR., Circuit Judge, dissenting. After careful consideration of the
issues in this case, I must respectfully dissent from the majority’s opinion. The district court’s
dismissal of the Hardestys’ claims at the summary judgment stage was in error and should be
reversed.
                                                  I.
        The majority opinion omits a few important facts regarding the timing of events on that
fateful night at the Hardesty house. Julie Taylor was arrested at 2:11 a.m. for drunk driving. Upon
learning that she had consumed the alcohol at the Hardesty residence, the police chose to not go to
the house and immediately enter but merely put the residence under observation. They observed the
house for over two hours, until, at approximately 4:30 a.m., the officers decided it was an
appropriate time to approach the house and ask the occupants some questions. After knocking on
the door and, according to the officers’ testimony, ringing a doorbell (which in fact does not exist),
the officers decided to walk around the house to see if they could rouse the occupants from the back
of the house.
        To be clear, the officers had no warrant to enter the house or search the premises. The
officers acknowledge that there were no exigent circumstances justifying a search apparent from
their visit to the front door. There was no indication that a crime was being committed inside the
house or that there was any activity inside the house. Finally, the officers approached at 4:30 a.m.
after observing the house for over two hours without any indication that a crime was being
committed in the house.
                                                  II.
        With these facts in mind, I will now address the review of the summary judgment in favor
of the defendants in this case. The section 1983 case stems from a Fourth Amendment violation
against the Hardestys when the officers entered the back of their home without a warrant or a
legitimate basis. Their claim relies on the recognition that their backyard and, specifically, the deck
of the house is part in parcel of the home and subject to Fourth Amendment protection. Areas that
lie beyond the physical walls of a home but which remain under its protection are referred to as
curtilage.
        “The curtilage concept originated at common law to extend to the area immediately
surrounding a dwelling house the same protection under the law of burglary as was afforded the
house itself.” United States v. Dunn, 480 U.S. 294, 300 (1987). Blackstone explained the rationale
behind curtilage as follows: “if the barn, stable, or warehouse, be parcel of the mansion-house, and
within the same common fence, though not under the same roof or contiguous, a burglary may be
committed therein; for the capital house protects and privileges all its branches and appurtenances,
if within the curtilage or homestall.” 4 W. Blackstone, Commentaries 225 (emphasis added). In
Dunn, the Supreme Court laid out a four factor test for defining curtilage: 1) proximity of the area
to the home, 2) whether the area is included within the enclosure which surrounds the home, 3) the
nature of the uses of the area, and 4) the steps taken by the resident to prevent the area from being
seen by people passing by. Dunn, 480 U.S. at 301. While I disagree with the majority in its
No. 05-1346               Hardesty, et al. v. Hamburg Township, et al.                                         Page 10


characterization of the second factor1, I agree with its eventual result, finding this area to be within
the curtilage of the home.
       Despite finding the backyard and deck of the Hardesty house to be within the curtilage of
the home, the majority holds that the officers’ actions were excused by the “knock and talk” rule.

         Courts have defined [knock and talk] as a noncustodial procedure [in which] the
         officer identifies himself and asks to talk to the home occupant and then eventually
         requests permission to search the residence. Courts generally have upheld this
         investigative procedure as a legitimate effort to obtain a suspect’s consent to search.
United States v. Chambers, 395 F.3d 563, 568 n.2 (6th Cir. 2005) (internal quotation marks and
citations omitted). This Court has also held that “[f]ederal courts have recognized the ‘knock and
talk’ strategy as a reasonable investigative tool when officers seek to gain an occupant’s consent to
search or when officers reasonably suspect criminal activity.” Ewolski v. City of Brunswick, 287
F.3d 492, 504-05 (6th Cir. 2002) (quoting United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001),
cert. denied, 534 U.S. 861 (2001)).
        The majority states that the Hardestys have acknowledged that the officers were within their
rights to approach the house. It is unclear from reading the Hardestys’ brief that such a concession
has been made. However, I would disagree with the majority opinion that the officers had a right
to approach the house. I read this Court’s precedent for the ‘knock and talk’ rule as requiring the
officers’ decision to knock and talk to be a reasonable one. In this case, the officers acted strangely
and without a reasonable explanation in waiting outside the house for over two hours then, at 4:30
a.m., approached the house to supposedly obtain consent for a search. I fail to see how, in this
instance, the knock and talk was used as a “reasonable investigative tool.”
        However, assuming that the original knock and talk was permissible, this does not
immediately mean that the officers had the right to further invade the privacy and sanctity of the
Hardesty home and walk into the backyard. The majority, creating new law for this Court, holds
that a knock and talk situation permits officers, upon receiving no response, to continue to the back
of the house to look for its occupants without a search warrant. This bold extension of the ‘knock
and talk’ rule essentially extinguishes the protections afforded to curtilage. “[T]he capital house
protects and privileges all its branches and appurtenances, if within the curtilage or homestall.” 4
Bl. Comm. at 225. A violation of the curtilage of the home is the same as violating the home itself.
See Dunn, 480 U.S. at 300. To allow officers effective access to the entire home merely based on
non-responsiveness to a knock at the front door flies in the face of the historic privilege extended
to curtilage. Could the officers have, upon receiving no response from a knock at the front door,
attempted to open that door and then enter the home unannounced? If we are truly to treat a home’s
curtilage in the same manner and same protections afforded to the home itself, then a curtilage
extension to the ‘knock and talk’ rule cannot be permitted under the Fourth Amendment.
        The majority hangs this extension of the ‘knock and talk’ rule on the circumstance where
“knocking at the front door is unsuccessful in spite of indications that someone is in or around the
house, an officer may take reasonable steps to speak with the person being sought out even where
such steps require an intrusion into the curtilage.” Maj. Opn. at 6. The majority believes this rule
is sufficient to protect a home from officers entering curtilage when no one is actually home.
Practically, however, this “safeguard” can not work. In this case, the Hardestys claim that the lights
which were turned on and off inside the home (which the officers relied on to indicate that someone

         1
          The presence of a line of trees surrounding the entire backyard, along with a railing encircling the deck, make
the second factor one which I believe strongly favors a finding that this area is curtilage.
No. 05-1346               Hardesty, et al. v. Hamburg Township, et al.                                         Page 11


was present) were on a timer. Beyond lights set on a timer, one could imagine a number of
“indications that someone was home” which are false indications. Security systems often turn on
and off the lights or turn on and off a radio or television to give potential burglars the illusion that
a home is occupied. Timed sprinkler systems or lighting systems make it seem that they are being
turned on by someone within the home. Televisions, radios, and alarm clocks accidentally left on
could give the impression that someone is present. Finally, voices from within the home could stem
from a phone answering system or a friendly parrot. While these examples range from the realistic
to the absurd, the reality is that to rely on “indications that someone is in 2or around the house” to
destroy the Fourth Amendment protections of a residence is unjustifiable.
        Even if the majority’s extended ‘knock and talk’ rule is an appropriate one, I must question
the decision in this case that the officers took “reasonable steps” when they entered the curtilage.
I, again, must point out the more than two hours officers spent merely observing the Hardesty home.
Then, at 4:30 a.m., the officers decided to approach, making their approach extremely remote in time
to when they observed indications that someone was within the house. The time spent by the
officers waiting outside the home was unreasonable. The time of the knock and talk, given the
potential offenses in question, was unreasonable. Finally, the decision to enter the curtilage was
unreasonable.
        While the majority does not mention this, I believe it is also relevant to consider exactly what
crimes the officers were investigating when these events took place. Julie Taylor, upon her arrest,
told the police that she had been drinking alcohol at the Hardesty home with Joseph Hardesty, a
minor. A first-time violation of Michigan’s Minor in Possession statute is a $100 fine and no jail
time. M.C.L. § 436.1703. The Minor in Possession statute covers both possession and consumption
of alcohol by a minor. Id. The “[F]ourth [A]mendment prohibits the police from making a
warrantless night entry of a person’s home in order to arrest him for violation of a nonjailable traffic
offense.” United States v. Morgan, 743 F.2d 1158, 1161 (6th Cir. 1984) (citing Welsch v.
Wisconsin, 466 U.S. 740, 748 n.10 (1984)). Yet here we have a warrantless entry of a person’s
home (treating the curtilage as equal to the home) at night to question the residents about an offense
that carries with it no jail time. This Court has held that the Fourth Amendment prohibits such
actions to make an arrest. Therefore, it is logical that the Fourth Amendment prohibits such actions
being taken to merely question the occupants.
        For these reasons, I would reverse the district court’s granting of summary judgment and
remand for further proceedings. Because I would reverse based on the officers’ violation of the
Fourth Amendment by entering the curtilage, I would find summary judgment     inappropriate whether
or not there were exigent circumstances to justifying entering the home.3
                                                           III.
         For these reasons, I respectfully dissent from the majority’s opinion.




         2
         I would be remiss to not mention the classic holiday film HOME ALONE (1990), in my discussion of how a
home might appear to be occupied. In the film an eight-year-old Macaulay Culkin is able to outwit passers-by,
convincing them that he is not home alone by using radios, televisions, lights, and cardboard cutouts.
         3
            I do wish to note, however, that the “blood on the hands” of the person lying on the couch was, in fact, scabs
on the knuckles of the young man who needed no medical attention after the officers entered the Hardesty home.
Because this case is at the summary judgment stage and, taking these facts in the light most favorable to the Hardestys,
it is hard to believe that the officers saw those scabs and believed it to constitute an exigent circumstance.
