Marijuana case against jail officers may go to SCOTUS

Kent County corrections officers say pre-dawn 'knock and talks' violated rights

Michael Frederick, Todd VanDoorne
Left to right: Mug shots of Mike Frederick and Todd VanDoorne from the Kent County Correctional Facility. (March 21, 2014)

GRAND RAPIDS, Mich. (WOOD) — The Kent County case against two county corrections officers who were arrested and charged with possession of marijuana-infused butter will have to wait.

Friday, 17th Circuit Court Judge Dennis Leiber granted a stay in the case until the U.S. Supreme Court makes a ruling or declines to hear the case.

It has been more than three years since four Kent County corrections officers were arrested and charged with possession of marijuana-infused butter, and what initially looked like a cut-and-dry drug case is still working its way through the judicial system.

The two sides have been battling it out in courtrooms in Grand Rapids, Kent County and Lansing, and now that battle is moving to Washington D.C. as the prosecution asks the U.S. Supreme Court to consider the case.

Everyone involved says the issues raised in this case go far beyond whether the corrections officers were holding marijuana butter.

“We felt this was a big enough issue when you look at the implications for law enforcement statewide,” Kent County Prosecutor Chris Becker said, explaining why he appealed to the highest court in the land.

Tim Bernhardt (upper left), Mike Frederick (upper right), Todd VanDoorne (lower left), Brian Tennant (lower right)

Sgt. Tim Bernhardt and officers Brian Tennant, Mike Frederick and Todd VanDoorne were all fired after their arrests in March 2014. Bernhardt and Tennant both pleaded guilty to maintaining a drug house. Tenant was sentenced to probation, but Bernhardt took his own life before sentencing.

Frederick and VanDoorne appealed, saying that police showing up to their homes in the middle of the night was not constitutional.

“Clearly people were asleep. There’s no dispute over that by the prosecutor’s office or anyone else,” said Bruce Block, VanDoorne’s attorney.

Police did not get a warrant, but instead went to the homes in the pre-dawn hours for a so-called “knock and talk,” where investigators simply show up and ask for consent to come in and interview someone.

“Now, if the lights had been on, different story. If there was movement, maybe a different story,” Block said. “If you look at this case, there’s no great harm that was going to happen if they waited until the next morning.”

The Michigan Court of Appeals sided with police, saying the tactics used by police were legitimate. But last month, the Michigan Supreme Court in an unanimous decision said the late-night, warrantless questioning of the suspects violated the Fourth Amendment of the U.S. Constitution and that investigators who showed up at the houses were, in fact, trespassing.

“It’s shocking to see them use that kind of language,” Becker said. “If you’re trying to find a missing child, a missing person, and you’re knocking on somebody’s door, that’s a trespass.”

Block said the case is clear.

“If you really think the kid’s there, you can get warrants pretty quick nowadays,” he said. “If somebody walks on your land, they’re trespassing.”

Becker said the state Supreme Court ruling raises many questions.

“Does that mean I’m a trespasser if I go to somebody’s house at 3 in the morning and I knock on the door? According to the Supreme Court, I guess, yeah, that it is,” Becker said.

The ruling puts prosecutors’ case against the officers in jeopardy if none of the evidence gathered at the homes can be used in court.

“’Knock and talks’ are time sensitive — what is the hour that somebody could reasonably go to your house and expect you to be awake and willing to receive visitors?” Block said. “In this country, we’re going to have a sacred place where you can’t just do that unless you have a warrant or you have some type of legal authorization to do it.”

Becker said the state Supreme Court decision has led to confusion among law enforcement about what is acceptable during investigations.

“I got a call from the State Police in Cadillac saying, ‘What’re you guys doing with this decision? Are you going to appeal it?’ Because it impacts how they’re looking at what happened in Cadillac,” Becker said. “We’re hoping for clarification, if not, quite frankly, a reversal because we think there was an error in what the Supreme Court did.”

Block was admitted to the U.S. Supreme Court Bar with this case in mind.

“I’m not aware of any case that has specifically addressed the time of day quite as clearly as this one,” said Block, who added would have taken the case to the U.S. Supreme Court if the state court had come out against this client.

The High Court receives between 7,000 and 8,000 requests each term, referred to as petitions for a writ of certiorari. About 80 of those cases make it to oral arguments before the justices.

“I would probably characterize this as a Hail Mary,” Block said.

But the prosecutor has a different take.

“We wouldn’t do it if it was a long shot, a type of Hail Mary that we’re just doing this to see,” Becker said.

There is a lot that happens as a case makes its way to the U.S. Supreme Court — a process likely to last well into next year.