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Missouri Marijuana Grower Loses ‘Knock and Talk’ Search Appeal

June 28, 2019, 4:54 PM

A Missouri man convicted of conspiracy to grow marijuana lost his Fourth Amendment challenge to the police’s entry onto his property, a federal appeals court ruled June 28.

Two police officers came upon Charles White’s rural property while attempting to locate an address for an unrelated criminal investigation. As they got out of their car to talk to him, they noticed the smell of marijuana. They returned later that day with drug task force officers, and again noticed a strong smell of marijuana.

Nobody answered when they knocked, but the officers met another man, who said he was White’s tenant on an adjoining property. He admitted he had marijuana for personal use in his residence, and let the officers enter. The police obtained a warrant to search both properties and discovered hundreds of marijuana plants on the two properties.

The trial court was right to reject White’s motion to suppress evidence seized from his property, the U.S. Court of Appeals for the Eighth Circuit said.

The “knock-and-talk” exception to the Fourth Amendment’s warrant requirement is founded on the principle that people, including police officers, have an implied license to approach the entrance to a home, knock promptly, and wait briefly to be received.

White claimed that the police’s second entry onto his property went beyond this exception, because the officers went there to follow up on the odor of marijuana they had smelled earlier in the day.

But “the subjective intent of an officer cannot vitiate otherwise objectively reasonable conduct,” the appeals court held.

White also claimed that he was selectively prosecuted. He claimed that Obama-era Justice Department effectively granted impunity to marijuana growers in states where marijuana was legalized.

But the Justice Department didn’t allow marijuana-growing operations in certain states, as White suggested, the court said. The Obama administration simply set priorities for prosecutorial discretion that recognized state marijuana regulatory systems could mitigate threats to public health and safety. Even in states with legal weed, individuals who threatened federal priorities—like keeping the drug away from children—would still be subject to federal prosecution, the court added.

Moreover, White wasn’t engaging in the same or similar conduct as large-scale marijuana cultivators in 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,” the court said.

The majority opinion was written by Judge Jane Kelly and joined by Judge Raymond Gruender.

Judge Steven Grasz concurred, but wrote separately to express “serious doubts about whether the second warrantless entrance onto White’s property by law enforcement officers complied with the Fourth Amendment.”

The evidence indicates that the officers were not there just to speak with White, but to see if they could again smell marijuana, and there is no implicit license for people to do that, Grasz said.

The case is United States v. White, 8th Cir., No. 17-03097, 6/28/19.

To contact the reporter on this story: Brian Flood in Washington at bflood@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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