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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, UNPUBLISHED April 9, 2015

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

Defendant-Appellee.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

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

Defendant-Appellee.

Before: W ILDER , P.J., and S ERVITTO and S TEPHENS , JJ.

P ER C URIAM

.

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

On August 21, 2013, Michigan State Police Trooper Bradley Camp bell went to defendants’ residence to investigate a complaint made regarding abandoned animals on the property and lack of electricity at the home. As he approached the home, Campbell immediately smelled urine, feces, and dead animals. He knocked on the fron t door in an attempt to make

1 People v Green , unpublished order of the Court of Appeals, entered October 2, 2014 (Docket No. 323433); People v Green, unpublished order of the Court of Appeals, entered October 2, 2014 (Docket No. 323435).-2- contact with the residents, but r eceived no response. He testi fied that, based on a previous visit to the residence in November 2012, at which time he made contac t with the residents in a pole barn on the property, he thought t he residents might be there. As he walked down to the pole barn, which was about 80 yards from the house, he stepped over a single-wire electric fence that provided a barrier to confine horses. Campbell saw dead rabbit s in various stages of decomposition in cages outside the pole barn. He walked around the pole barn to the south side, where the barn door was completely open. As he approached the pole barn door, he saw a cage just inside that contained a d ead rabbit and a dead guinea pig.

After failing to locate anyone, Campbell made contact with def endants’ neighbor, Nathan Proper. Proper told Campbell that defendants’ children were su pposed to be taking care of the animals, but he had not seen anyone at the property in a few da ys. Proper stated that there was no electricity to the property and that he had been providing e lectricity for the fence and providing a water line for the an imals. At that point, Campbel l left the property and obtained a search warrant. Officers subsequently executed the search warr ant and seized 31 dogs, 6 guinea pigs, and between 100 and 200 rabb its. An expert in veterinary medicine testified that the dogs were universally underweight and infested with fleas, roundworm s, hookworms, whipworms, and tapeworms. He also found par asites in the guinea pigs. He testified that the magnitude of the parasite infestation is evi dence of the unsanitary conditio ns in the whole environment of defendants’ property, because sev eral of the parasites can only exist in a situation where there is recurring fecal contamination. H e explained that the situation warranted impound of the
animals.

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

Plaintiff now argues that the t rial court erred in granting de fendants’ motion to suppress the evidence found in and around the pole barn. In a suppressi on hearing, we review the trial

2 Although both sides argued below about the validity of the aff idavit supporting the search warrant, and defendants reiterate their argument in their brief on appeal, that issue is not pertinent here because the court found probable cause to suppor t the warrant. Defendants have not sought leave to appeal that d ecision. The court only suppr essed evidence ta ken from the pole barn on the basis of Trooper Ca mpbell’s conduct with respect to the pole barn before he obtained
the search warrant.-3- court’s ultimate decision de novo, but review the trial court’s findings of fact for clear error. People v Barbarich (On Remand) , 291 Mich App 468, 471; 807 NW2d 56 (2011) . “A finding is clearly erroneous when, although t here is evidence to support i t, the reviewing court is left with a
definite and firm conviction that a mistake has been made.” Id

.

Both the United States and Michigan Constitutions protect citi zens from unreasonable searches and seizures by the government. US Const, Am IV; Cons t 1963, art 1, § 11; Herring v
United States , 555 US 135, 136; 129 S Ct 695; 172 L Ed 2d 496 (2009); People v Slaughter , 489 Mich 302, 310-311; 803 NW2d 171 (2011). 3 However, in order to implicate these protections, the government must first commit a search, which is defined as an intrusion on a person’s reasonable or justifiable expectation of privacy. People v Taylor

, 253 Mich App 399, 404; 655 NW2d 291 (2002); see Katz v United States , 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967). Even where an area is protected, “[a] mere ‘technical trespass’ [does] not transform an otherwise reasonable investigation into an unreasonable search.” People v Houze , 425 Mich 82, 93; 387 NW2d 807 (1986); see also United States v Jones , 565 US ___, ___ n 5; 132 S Ct 945, 950-951; 181 L Ed 2d 911 (2012) (explaining that a “[t]respass alone doe s not qualify [as an unreasonable search], but there must be conjoined with that . . . an attempt to find something or to obtain information”).

This Court evaluates a search under the totality of the circum stances in determining
whether the intrusion violated both a person’s subjective (actu al) and objective (reasonable) expectation of privacy. Taylor , 253 Mich App at 404-405. Unless there is a valid exception t o the warrant requirement, any evidence obtained from a search or seizure performed without a warrant is suppressed. People v Dagwan , 269 Mich App 338, 342; 711 NW2d 386 (2005).

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

, a knock and talk procedure is:

[A] law enforcement tactic in which the police, who possess som e information that they believe warrants furt her investigation, but that is i nsufficient to constitute probable cause for a search warrant, approach the pe rson suspected of engaging in illegal activity at the person’s residence (even kn ock on the front door), identify themselves as po lice officers, and request cons ent to search for the suspected illegality or illicit items. [ Id. at 697.]

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

3 Unless there is a “compelling reason” to impose a different in terpretation, the Michigan Constitution is to be construed to provide the same protection as the Fourth Amendment to the
United States Constitution. Slaughter , 489 Mich at 311.-4- observed the dead animals in and around the pole barn and, ther efore, that he conducted an illegal search.

However, the proper inquiry is whether the area (pole barn) wa s within the curtilage of the home and therefore subject to a reasonable expectation of p rivacy. As a general rule, “the Fourth Amendment viciously protects one’s privacy interest in t he home[.]” Taylor , 253 Mich App at 406; see also Kyllo v United States , 533 US 27, 31; 121 S Ct 2038; 150 L Ed 2d 94 (2001) (internal quotation marks and citation omitted) (“At the very core of the Fourth Amendment stands the right of a man to retreat into his own hom e and there be free from unreasonable governmental intrusion.”). For purposes of the co nstitutional protection against unreasonable searches and seizures, the curtilage of the home i s considered part of the home itself. See Const 1963, art I, § 11; United States v Dunn , 480 US 294, 300; 107 S Ct 1134; 94 L Ed 2d 326 (1987); Oliver v United States , 466 US 170, 180; 104 S Ct 1735; 80 L Ed 2d 214 (1984).

A determination of whether an area constitutes part of the cur tilage is guided by a fourfactor test, as set forth by the Court in Dunn , 480 US at 301. The factors are “[1] the proximity
of the area claimed to be curtil age to the home, [2] whether th e area is included within an enclosure surrounding the home, [3] the nature of the uses to w hich the area is put, and [4] the steps taken by the resident to protect the area from observatio n by people passing by.” Id . The

Dunn Court counseled against a “mechan ical” application of these fac tors, but instead indicated that the factors are “useful . . . only to the degree that, in any given case, they bear upon the centrally relevant cons ideration—whether the area in question i s so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id

.

As clearly established in Dunn

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

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

, 480 US at 302.]-5- “It is especially significant,” the Court continued, “that the law enforcement officials possessed objective data indicating that the barn was not being used for intimate activities of the home.”

Id. Finally, the Court found that t he defendant “did little to pr otect the barn area from observation by those standi ng in the open fields.” Id. at 303. The Court explained that under the circumstances, the police did not commit an unreasonable search by circling the barn and peering inside it with flashlights. Id.

Application of the Dunn factors in the case at hand s upports a finding that the pole ba rn is not within the home’s curtilage. The distance between the pole barn and the residence in the present case is greater than the distance between the house and its respective structure in Dunn

, which was found to be outside the curtilage. The single-wire e lectric fence surrounding the area where the pole barn is located served as a barrier to confine h orses and was not demarcating the cartilage and was easily stepped over. The pole barn was also not in an area where the intimate daily activity of defenda nt’s life extended. See United States v Potts , 297 F2d 68, 69 (CA 6, 1961). The pole barn was surrounded by overgrown grass and con tained cages that housed rabbits and guinea pigs and that were piled with feces. Cages were also immediately outside the pole barn that contained dead animals. The barn itself was not used for family purposes. Moreover, “[a]n individual may not have a reasonable expectatio n of privacy, even in areas close to the principal residence, such as will allow them to be treat ed as the curtilage, when those areas are readily accessible and visible to the public.” 68 Am Jur 2 d, Searches and Seizures, § 69, p

184. The pole barn was visible to the public from the road.

In sum, we conclude that defendants’ pole barn did not constit ute part of the curtilage of the home. Because defendants did not have a reasonable expecta tion of privacy in regard to the pole barn, the search of defendants’ premises did not violate t heir Fourth Amendment rights because the conduct of the police in approaching the pole barn was not a search that implicated constitutional protections. The evidence consequently discover ed pursuant to a search warrant should not have been suppre ssed by the trial court.

Reversed and remanded. We do not retain jurisdiction.

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