United States v. Charles White (8th Cir. June 2019)
Fourth Amendment/Knock and Talk – An officer’s subjective intent in approaching a house is irrelevant in determining whether he exceeded the scope of a permissible knock-and-talk. Here, the officers had an implicit license to approach the house and ask questions.
In a marijuana farm case, the Court held that law enforcement did not exceed the scope of a permissible knock-and-talk when they returned to the defendant’s house with other narcotics officers after smelling marijuana at the property earlier in the day. Citing United States v. Jardines, the defendant argued that the officers’ purpose in investigating a marijuana offense made their second entry onto the property unlawful under the Fourth Amendment. The Court responded that an officer’s subjective intent in approaching a house is irrelevant to determining whether he exceeded the scope of a permissible knock-and-talk. Here, the officers had an implicit license to approach the house and ask questions, and the plain smell of the marijuana justified their prolonged presence.
The Court also rejected the defendant’s motion to dismiss the indictment, which was based on the “Cole Memo,” a policy statement from 2013, since rescinded, that directed federal law enforcement to de-prioritize marijuana prosecutions in states where marijuana is legal. The defendant had argued that this violated his equal protection rights since the memo resulted in “discriminatory application of federal law.” The Court responded that the defendant failed to make a selective prosecution claim, since the Cole Memo did not “single out” anyone, but merely set forth priorities for law enforcement. And regardless, the defendant was not similarly situated to individuals who benefitted from the Cole Memo since they were growing marijuana through a regulatory framework, and the defendant wasn’t. Neither was there a discriminatory motivation behind the allegedly unequal treatment,
Judge Grasz concurred to the majority’ holding on the defendant’s motion to dismiss but would have held that the second warrantless entry onto the defendant’s property exceeded the scope of a permissible knock-and-talk. He noted that Jardines explicitly held that a knock-and-talk is “limited not only to a particular area but also to a specific purpose.” Beyond the officer’s subjective intentions, their objective behavior, bringing narcotics agents to help them smell for marijuana, was comparable to the officers’ impermissible conduct in Jardines, which included bringing a drug-sniffing dog onto the defendant’s porch. However, Judge Grasz added that he likely would have affirmed denial of suppression anyway, since the subsequent warrant based on officer’s smelling marijuana on their first visit provided an independent source of the evidence.
Appeal from the Western District of Missouri
Opinion by Kelly, joined by Gruender
Concurring Opinion by Grasz