People v. Catania

Levin, J.

(concurring). Donald Catania was convicted of possession with intent to deliver cocaine 1 *469 and of possession with intent to deliver marijuana, 2 as a second felony offender. 3

The Court of Appeals reversed, stating that there had been a warrantless search of Catania’s home and that he had not consented to the search. While I agree with that analysis of the Court of Appeals, I join in the reinstatement of Catania’s conviction because the information that formed the basis for Catania’s conviction was not obtained as a result of the search, but rather was imparted by Catania to the undercover agent as a result of misplaced confidence in her.

i

The Berrien County Metro Narcotics Squad directed JoAnn Ward, an eighteen-year old law enforcement student, to knock on the door of Catania’s home. When Catania answered the door, Ward feigned that she was experiencing car trouble and asked to use the telephone. After she had made a bogus call, Ward and Catania sat at the kitchen table. Ward then initiated a discussion about "partying”; she told Catania that she was on her way to a party and told him the location of the party. Catania suggested to Ward that they smoke a "joint” of marijuana. Catania walked over to the kitchen counter where there was a tray with a plastic baggie containing suspected marijuana, a "roach clip,” and some cigarette rolling papers. Catania proceeded to roll a cigarette of suspected marijuana which he and Ward then smoked.

After they had smoked the cigarette, Ward asked if she could obtain a couple of "joints” for the road. Catania told her that he didn’t have enough. Ward then asked Catania if he knew *470 whether there was any "coke” around. Catania replied, "What do you think you fell into here?” Ward and Catania discussed the possibility of meeting at a bar later that night. She spent approximately one-half hour in Catania’s residence.

On the basis of the information that Ward had obtained, a police officer swore out an affidavit for a search warrant stating that Catania had given Ward a rolled marijuana cigarette, that Ward saw a quantity of marijuana from which Catania rolled the marijuana cigarette and suspected there was marijuana in his home. The return, following the execution of the search warrant issued on that affidavit, included a baggie of marijuana. One of the officers who executed that search warrant swore out an affidavit for a search warrant stating that he "saw in the bedroom in the place to be searched a bale of suspected marijuana weighing between 50 and 100 lbs, I also saw a set of scales, commonly used for weighing out marijuana, I also saw a plastic baggie containing a white powdery substance suspected to be cocaine; there also was what appeared to be ledger books and a quantity of paper U.S. currency.” The return, following the execution of that search warrant, included one bale of marijuana and one plastic baggie containing cocaine.

ii

I agree with the Court of Appeals that Donald Catania had a reasonable expectation of privacy in his home. I also agree that he did not consent to allowing a police agent to search his home when he admitted Ward on a ruse.

The decisions of the United States Supreme *471 Court on consensual searches are not in point. 4 In the law of torts, consent to an intentional interference with person or property is invalid if "the consenting person was mistaken about the nature and quality of the invasion intended by the conduct.” 5 If a person were to give another a box of candy knowing that it is poisoned, and that the other person is unaware that it is poisoned, the person providing the candy is subject to liability because the other person did not consent to the kind of invasion which the person providing the candy intended. 6

Judicial decisions elaborating on the common-law elements of burglary indicate that the deceptive means used to obtain consent to enter Cata *472 nia’s house should render the consent invalid. At common law, the crime of burglary consisted of, among other elements, breaking and entering. 7 Entry gained by fraud was deemed to be a constructive breaking. 8 In LeMott’s Case (1650), see commentary 84 Eng Rep 1073, 1074 (1650), thieves intending to rob a house found the door locked and pretended they went to the house to speak with the owner. A servant then opened the door and they entered and robbed the owner, "and this being in the night time, this was adjudged burglary, and the persons hanged; for their intention being to rob, and getting the door open by a false pretence this was in fraudem legis, and so they were guilty of burglary . . . .” 9 Similarly, in Ann Hawkin’s Case, 10 a thief was indicted for burglary after she robbed a house which she had induced a boy to open by promising him a pot of ale. The court said that the thief obtained entry by fraud. Subsequent case law has extended this principle rather generally to cases in which entrance has been gained by means of some trick or artifice. 11

Although Ward’s activities did not constitute common-law burglary, because she did not intend to commit a felony, her entry into Catania’s home was, because she gained entry by misrepresenting her purpose in seeking entry, a breaking at common law.

hi

In Lewis v United States, 385 US 206 ; 87 S Ct 424 ; 17 L Ed 2d 312 (1966), reh den 386 US 939 *473 (1967), a federal narcotics agent, by misrepresenting his identity and stating his willingness to purchase narcotics, was invited into defendant’s home where on two occasions a narcotics sale was consummated, the agent during neither of his visits seeing, hearing, or taking anything not contemplated by the defendant as a necessary part of his illegal business. The narcotics were introduced in evidence, over defendant’s objection, at his trial. The United States Supreme Court held that the Fourth Amendment was not violated and hence the narcotics were admissible in evidence:

In the instant case, on the other hand, the petitioner invited the undercover agent to his home for the specific purpose of executing a felonious sale of narcotics. Petitioner’s only concern was whether the agent was a willing purchaser who could pay the agreed price. Indeed, in order to convince the agent that his patronage at petitioner’s home was desired, petitioner told him that, if he became a regular customer there, he would in the future receive an extra bag of marihuana at no additional cost; and in fact petitioner did hand over an extra bag at a second sale which was consummated at the same place and in precisely the same manner. During neither of his visits to petitioner’s home did the agent see, hear, or take anything that was not contemplated, and in fact intended, by petitioner as a necessary part of his illegal business. . . .

The fact that the undercover agent entered petitioner’s home does not compel a different conclusion. Without question, the home is accorded the full range of Fourth Amendment protections. See Amos v United States, 255 US 313 [ 41 S Ct 266 ; 65 L Ed 654 ] (1921); Harris v United States, 331 US 145, 151, n 15 [ 67 S Ct 1098 ; 91 L Ed 1399 ] (1947). But when, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that *474 business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant. Of course, this does not mean that, whenever entry is obtained by invitation and the locus is characterized as a place of business, an agent is authorized to conduct a general search for incriminating materials .... [Id., at 210-211.]

Here, as in Lewis, Ward did not "see, hear, or take anything that was not contemplated.” Catania offered Ward a marijuana cigarette. A search warrant was obtained on that basis permitting a search only for marijuana. On the basis of what was discovered in executing that search warrant, another search warrant was obtained and the cocaine evidence was obtained. In offering Ward a joint of marijuana, Catania chose to make Ward aware of his possession of marijuana; it cannot be said that Ward’s seeing, hearing about, and taking with her from Catania’s home information of his possession of marijuana "was not contemplated.”

If Catania had not offered Ward a marijuana cigarette, and she had rather observed marijuana in "plain view,” I would agree with the Court of Appeals that the evidence was obtained as a result of a warrantless search and should be suppressed. The evidence here was rather obtained as a result of misplaced confidence in Ward. 12

I agree with the majority that Ward’s enticement of Catania should be analyzed in terms of the defense of entrapment and not in terms of search and seizure law.

MCL 333.7401(1), (2)(a)(iv); MSA 14.15(7401X1), (2)(a)(iv).

MCL 333.7401(1), (2)(c); MSA 14.15(7401X1), (2)(c).

MCL 333.7413; MSA 14.15(7413).

The Supreme Court first attempted to define what constitutes a valid consent in Bumper v North Carolina, 391 US 543 ; 88 S Ct 1788 ; 20 L Ed 2d 797 (1968). The Court held ineffectual consent given to a search after the official conducting the search had falsely asserted that he possessed a search warrant. The Court found the prosecution had failed to meet its burden of proving that the consent was "freely and voluntarily given” and concluded that "[w]here there is coercion there cannot be consent.” Id., pp 548-550.

In Schneckloth v Bustamonte, 412 US 218 ; 93 S Ct 2041 ; 36 L Ed 2d 854 (1973), the Court held that consent by one not in police custody may be voluntary if there is not undue coercion, even though the consenter was unaware of his right to refuse consent. The Court said:

We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances .... [Id., pp 248, 249.]

The government thus had no affirmative obligation to inform a potential consenter of his right to withhold consent. The discussion in Schneckloth was limited to searches in which a uniformed government official openly seeks consent to enter private premises. The primary concern in Schneckloth was use of the cloak of authority to coerce a person into consenting to a search.

Prosser & Keeton, Torts (5th ed), § 18, p 114; 2 Restatement Torts, 2d, § 55, p 88.

Id., § 18, pp 119-120.

LaFave & Scott, Criminal Law, § 96, p 708.

Id., p 709.

Id., p 1073.

2 East, Pleas of the Crown 484, 485 (1704).

Perkins, Criminal Law (3d ed), p 249; see also 4 Blackstone, Commentaries on the Laws of England, pp 224, 226-227 (1898).

Cf. Hoffa v United States, 385 US 293 ; 87 S Ct 408 ; 17 L Ed 2d 374 (1966).