Prosecutor appealing Kent County ‘knock and talk’ pot butter case to U.S. Supreme Court

Posted at 5:41 PM, Jul 14, 2017
and last updated 2017-07-14 17:41:11-04

KENT COUNTY, Mich. -- The Kent County Prosecutor's team is appealing the Michigan Supreme Court's unanimous ruling that 'knock and talks' are time sensitive, stemming from the cases against two former Kent County deputies who were medical marijuana patients found with pot butter.

Friday in Kent County Circuit Court, the prosecutor's team announced they will file an appeal to the U.S. Supreme Court by Aug. 30. They hope to further clarify whether knock and talks are time sensitive.

Kent County Circuit Judge Dennis Leiber granted the prosecutor a stay on the cases to allow the chance for them to prepare their appeal and the one percent chance that SCOTUS will hear it. Judge Leiber said at one point, "the case has had a tortured history," and it has.

Six weeks ago the Michigan Supreme Court ruled if police come to a home without a warrant wanting to talk, conducting a so-called knock and talk, they must come to a home during normal waking and solicitation hours. The justices unanimously ruled in favor of former Kent County deputies Todd Van Doorne and Michael Frederick, but remanded the issue of whether their consent to search was legitimate or coerced back to the Kent County Circuit Court.

The cases began March 18, 2014 at 4 a.m. then 5:30 a.m. when seven Kent Area Narcotics Enforcement Team officers went to the homes of the Kent County Deputies, with more than 20 years in the department at the time, on suspicion of pot butter without a warrant. Van Doorne and Frederick consented to their superiors, then officers searched and seized marijuana from the card-carrying patients.

Originally four law enforcement officials with more than 20 years' experience at the Kent County Correctional Facility faced drug charges including: Sgt. Tim Bernhardt, Brian Tennant, Van Doorne and Frederick, along with two medical marijuana caregivers, Timothy and Alyssa Scherzer. After pleading guilty to drug charges, Sgt. Bernhardt took his life.

Friday, Kent County Prosecutor Chris Becker told FOX 17 the ruling to limit knock and talks to normal waking hours negatively impacts police work. Van Doorne's Defense Attorney Bruce Block disagrees and calls the framework common sense.

“It’s really kind of I think a misnomer to say well police won’t be able to do their jobs; they’ll be able to do their jobs, but they’ll just have to follow rules," said Block.

"And our country is founded on rules and that’s what keeps us a free country in my opinion. You have to follow rules: you don’t wake up sleeping families in the middle of the night like happened here.”

Each term, the U.S. Supreme Court receives between about 7,000 to 8,000 petitions for a writ of certiorari and hears about 80, or one percent.

"The U.S. Supreme Court has repeatedly said a knock and talk is not subject to the Fourth Amendment; the Michigan Supreme Court came to a different conclusion," said James Benison, Kent County senior assistant prosecutor.

"I think that there’s a discrepancy there that needs to be resolved.”

Block says he sees no discrepancy between court circuits.

"If you look at nationwide precedent, over and over and over and over every case out there, every circuit that I’ve been able to find has said the time of day matters," said Block.

"The time of day matters, it is time sensitive, the knock and talk is limited.”

As far as cost to taxpayers, Becker tells FOX 17 despite these cases running since March 2014, outside of filing costs this work has not cost taxpayers any large-scale expense.

FOX 17 also spoke with Michigan State Police officials about how this affect their police work since the June 1 Michigan Supreme Court Ruling. Friday MSP Public Affairs Manager Shanon Banner said they are "in the process of finalizing a Legal Update that will provide guidance to law enforcement about this ruling. I expect it to be available next week."