People v. Nash

J. T. Kallman, J.

(concurring in part and dissenting in part). I respectfully dissent as to the search and seizure issue and concur as to the issue *454 of improper questioning by the prosecuting attorney.

A review of the record indicates that far too much importance was placed on Mrs. Ballard’s testimony that she considered Carrón Lea Nash as still being her tenant.

Ownership alone is not enough to establish a reasonable and legitimate expectation of privacy to determine validity of a search or seizure without a warrant. Ownership is relevant to the inquiry, but the total circumstances determine whether one challenging the search has a reasonable expectation of privacy in the locus of the search. United States v Ramapuram, 632 F2d 1149 (CA 4, 1980).

This analysis from the Ramapuram case makes sense. Analyzing this issue in this case one learns that the defendant had permitted the owners of the property to show the trailer to prospective renters. In the trailer, the owners found a box that smelled. So they cleaned the trailer up by removing the box and placing it outside of the trailer. It was only thereafter that Mrs. Ballard looked inside the box. She saw a body. She, a private citizen, found the body. Thereafter, she went and got the sheriff. Mrs. Ballard had become suspicious of a body being in the box and reported it to the sheriff. There is no protection under the Fourth Amendment against the search and seizure of property by a private citizen. That is the case here. The private citizen removed the box from the trailer, looked in it, found a body in it, and immediately contacted the sheriff to investigate further. These are the actions of a responsible citizen.

The first issue we must address is whether or not there is a Fourth Amendment issue at all.

Here, Nash, behind in her rent, leaves the trailer and permits Mr. and Mrs. Ballard to show *455 it to potential renters. Mr. and Mrs. Ballard took steps to do this. However, while in the trailer the night before, Mr. Ballard removed the box from inside the trailer because it smelled. Mrs. Ballard, a private citizen, looked inside the box and saw a badly decomposed body which she believed to be Douglas Nash. The search had been completed and the body discovered. The evidence had been located by a private citizen. The Fourth Amendment protects citizens against illegal searches by the government, not private citizens. In this case, the initial search and discovery of evidence was done by a private citizen. It was thereafter that this evidence was brought to the attention of the sheriff.

It is clear from the totality of the circumstances in this case that Mrs. Nash did not expect or have any legitimate expectation of privacy in the box. If she did, why did she permit the owners to show the trailer, move some of her personal belongings out, and then try to rent the trailer? One can only answer that as to the Ballards she expected no privacy. Mrs. Ballard then searched and found the body. Thereafter, the governmental agency (the sheriff) appeared on the scene for the first time.

Not only is this testimony present in the record, but we find further that defendant’s two dogs were removed from the premises prior to January 20, 1974, the defendant testified that she had stayed at the trailer only one night since her husband had left, Mrs. Ballard had "put Carron’s things together * * * in a plastic bag”, Mr. Covill testified that he helped Carrón move some of her things from the trailer at her request, and that she (defendant) wasn’t living there as far as he knew, Hazel Finch saw someone putting clothes in a car on January 18, and finally, that defendant’s *456 own father, Harold Falconberry, testified that his daughter moved in with him prior to Christmas, 1973. All of this evidence points to an abandonment of the trailer. Weighing all of this evidence against the single statement that Mrs. Ballard still considered defendant her tenant, one comes to the conclusion that defendant had voluntarily abandoned her possessory rights to the trailer. But beyond this is one conclusive piece of evidence that cements this position and that is contained in the testimony of Richard A. Mathews, Deputy Medical Examiner. When he asked the defendant about her address, she gave her father’s address, 5422 Merrill Road, where she was living, and not the trailer address, 175 McCulloch.

From this record I am satisfied that defendant’s conduct and words removed from her any reasonable expectation of privacy. Under any reasonable analysis, one must recognize that the people showing the trailer would (1) throw away a smelly box without opening it, (2) remove it from the trailer without opening it, or (3) remove it from the trailer and open it to see what caused the smell. Any curious human being, which we all are, would want to know what was causing the bad smell. Under these circumstances, the Fourth Amendment right does not even exist as a private citizen made the initial search and find.

So from this record one does not even reach a Fourth Amendment issue. Therefore, I would affirm on this issue.

Assuming, arguendo, that a Fourth Amendment right exists, however, the facts, even as set forth in the majority opinion, leave me with the impression that exigent circumstances (abandonment and consent) existed. However, I decline to hold that the seriousness of the offense under investigation *457 itself creates exigent circumstances of the kind that under the Fourth Amendment justify a search without a warrant. Mincey v Arizona, 437 US 385, 394 ; 98 S Ct 2408, 2415 ; 57 L Ed 2d 290 (1978).

Nevertheless, an extensive examination of recent Michigan and federal cases leads one to the conclusion that, assuming a search without a warrant occurred in the instant case, this does not compel the suppression of the evidence so obtained.

The Fourth Amendment prohibits unreasonable searches and seizures of "persons, houses, papers and effects”. It is undisputed that the ñnal discovery of the badly decomposed body of the victim resulted from a search and seizure by a law enforcement officer without a warrant. However, one must remember that the initial discovery was made by a private citizen and subsequently reported to the authorities.

Because of the strong preference in favor of search warrants, there is a presumption that a search of private property without a warrant is per se unreasonable, unless the search falls within one of the clearly delineated exceptions to the warrant requirement. Coolidge v New Hampshire, 403 US 443, 454-455 ; 91 S Ct 2022, 2031 ; 29 L Ed 2d 564 (1971), Mancusi v DeForte, 392 US 364, 370 ; 88 S Ct 2120, 2124 ; 20 L Ed 2d 1154 (1968), Katz v United States, 389 US 347, 357 ; 88 S Ct 507, 514 ; 19 L Ed 2d 576 (1967).

Whether a search and seizure is actually unreasonable depends on the facts and circumstances of each case. Cooper v California, 386 US 58, 59 ; 87 S Ct 788, 789 ; 17 L Ed 2d 730 (1967). The ultimate test of the reasonableness of a search without a warrant, however, is whether property was *458 searched in which the complainant had a reasonable expectation of privacy from governmental intrusion. Katz v United States, 389 US 347 ; 88 S Ct 507 ; 19 L Ed 2d 576 (1967).

The six exceptions to the warrant requirements have been carefully scrutinized by volumes of case law. These exceptions are as follows:

(1) Searches incident to lawful arrest.

(2) Automobile searches and seizures.

(3) Plain view doctrine.

(4) Consent.

(5) Stop and frisk (reasonable suspicion required).

(6) Hot pursuit.

But before the exceptions can be examined, the threshold questions must be answered satisfactorily. This is so because under Rakas v Illinois, 439 US 128 ; 99 S Ct 421 ; 58 L Ed 2d 387 (1978), and Rawlings v Kentucky, 448 US 98 ; 100 S Ct 2556 ; 65 L Ed 2d 633 (1980), "the two inquiries [of standing and of substantive Fourth Amendment protection] merge into one: whether governmental officials violated any legitimate expectation of privacy * * Rawlings v Kentucky, supra, 106.

A careful examination of the facts in this case assists in providing answers to this threshold question of expectation of privacy.

The defendant was in arrears on her rent. She did not live in the trailer. Personal items were removed. Defendant was living with her father but went back to the trailer periodically. She had two dogs with her and not at the trailer. Mrs. Nash permitted the Ballards to show the trailer to prospective renters. This constitutes abandonment and hence no expectation of privacy exists.

Mr. Ballard removed the box and placed it out *459 side the trailer. The exact location was never clear. There was no testimony that the box was within the curtilage.

Mrs. Ballard, a citizen, initially made the gruesome discovery. Subsequently, she informed the sheriff and summoned him to the scene and gave him permission (consent) to search the box on the property. He did. The sheriff had no idea a crime had been committed until he looked inside. How can this be a search to obtain evidence of a crime when he did not even know a crime had been committed? Could Mrs. Ballard give valid consent to the search?

In examining the consent question, we apply People v Chism, 390 Mich 104, 130-132 ; 211 NW2d 193 (1973):

"This leads to the question of whether persons with at least equal interests in the premises or property with the one asserting the constitutional immunity against unreasonable searches and seizures may consent to a search of such premises or property * *

and further:

"There are four recent cases in which the United States Supreme Court has considered the matter of consent to a search by some one other than the defendant but a person who has some proprietary interest in the place and sometimes in the object searched or searched for. Chapman v United States, 365 US 610 ; 81 S Ct 776 ; 5 L Ed 2d 828 (1961), Stoner v California, 376 US 483 ; 84 S Ct 889 ; 11 L Ed 2d 856 (1964), Bumper v North Carolina, 391 US 543 ; 88 S Ct 1788 ; 20 L Ed 2d 797 (1968), Frazier v Cupp, 394 US 731 ; 89 S Ct 1420 ; 22 L Ed 2d 684 (1969).”

These four cases establish our guidelines. The question logically arises, did Mrs. Ballard have co *460 equal interest with the defendant? To this, based on the facts in this case, I answer "yes”.

Mrs. Ballard testified that she considered Mrs. Nash a tenant. Bear in mind that to say otherwise obviously destroys her ability to collect rent for the arrearage. Too much reliance is placed on a statement that is self-serving. Hence, we distinguish the Chism, supra, guidelines and conclude that Mrs. Ballard with a co-equal interest could give consent to the search which led to the discovery of the body. The Ballards were placed in a position of equality as to the trailer.

The case of People v Benjamin, 101 Mich App 637, 646-647 ; 300 NW2d 661 (1980), mirrors the consent argument when it states:

"We agree with the prosecution, for we find that, under the totality of the circumstances extant at the time the consent was obtained, such consent was given voluntarily, and the search was, therefore, valid. People v Turner, 62 Mich App 467, 470-473 ; 233 NW2d 617 (1975), lv den 395 Mich 799 (1975), People v Ricky Smith, 85 Mich App 32, 37, 46 ; 270 NW2d 697 (1978), see also People v Reed, 393 Mich 342, 360-366 ; 224 NW2d 867 (1975), cert den 422 US 1044, 1048 ; 95 S Ct 2660, 2665 ; 45 L Ed 2d 696, 701 (1975).”

I contend such is this case.

While consent is an exception to the warrant requirement, we must again digress and address the threshold question of expectation of privacy from Rakas, supra, as discussed in People v Na-bers, 103 Mich App 354, 373-376 ; 303 NW2d 205 (1981):

"In Rakas v Illinois, 439 US 128 ; 99 S Ct 421 ; 58 L Ed 2d 387 (1978), the Supreme Court rejected traditional doctrines of standing vis-á-vis the Fourth Amendment in favor of an approach whereby a substantive analysis *461 of the rights of the person seeking suppression are examined relative to his legitimate expectation of privacy in the premises searched. (Footnotes omitted.)”

In the case at bar, it is clear what defendant’s relationship to the trailer was. Some testimony suggests that defendant lived there, other testimony, from a number of disinterested witnesses, supports a contrary conclusion. The majority has little difficulty in concluding that defendant had a legitimate expectation of privacy from governmental intrusion if, in fact, she was the resident of the premises. Similarly, if the evidence adduced had shown that defendant was a casual visitor who entered the premises only seconds prior to the commencement of the search and who left seconds following the search, pursuant to Rakas, supra, 142 , we would have to conclude that she had no legitimate expectation of privacy in the premises. In viewing the totality of the circumstances in this case, I determine that the defendant had no expectation of privacy. The facts clearly indicate partial, if not total, abandonment.

I find it hard to believe that defendant had no knowledge that the box was in the trailer when she left. Under these circumstances, the search without a warrant was reasonable.

However, after a careful review of the Nabers, supra, opinion, I find that Michigan follows a narrow Rakas, supra, approach. Citing Nabers, the opinion stated:

"The Supreme Court in Rakas strives to establish that opinion’s essential consistency with previous decisions of the Court. Rakas can be interpreted either broadly or narrowly as either greatly restricting a petitioner’s ability to assert a violation of his Fourth Amendment rights or as having a much more limited effect. The majority in Rakas forthrightly admits that *462 its decision renders no easier the determination to be made where there has been a motion to suppress. Id., 140 . In fact, Rakas further muddies the waters when suppression of evidence is in issue. See the majority and dissenting opinion in People v Mack, 100 Mich App 45 ; 298 NW2d 657 (1980).” Nabers, supra, 374 .

and further:

"We note that the Michigan Supreme Court has not yet considered Rakas . The Michigan Supreme Court has traditionally afforded defendants greater protection against unreasonable searches and seizures than the United States Supreme Court. See, People v Beavers, 393 Mich 554 ; 227 NW2d 511 (1975), cert den 423 US 878 ; 96 S Ct 152 ; 46 L Ed 2d 111 (1975) (imposing higher .Michigan standard relative to electronic surveillance); People v Margelis, 217 Mich 423 ; 186 NW 488 (1922) (applying the exclusionary rule prior to the time it was mandated by Mapp v Ohio, 376 US 643 ; 81 S Ct 1684 ; 6 L Ed 2d 1081 [1961]). In our opinion there exists a fair possibility that our Supreme Court will reject or narrow the applicability of Rakas in Michigan as a matter of state constitutional law.” Nabers, supra, 375 .

I firmly believe in the time-honored principles that the fourth and Fourteenth Amendments afford our citizens. Searches without warrants are per se unreasonable and if the constable blunders, the evidence is suppressed. However, these principles should not be applied indiscriminately. These principles should be applied to the totality of the circumstances in each case. If a. search without a warrant occurs, we must scrutinize the facts and ask ourselves the threshold question: "What reasonable expectation of privacy is by definition related to time, place and circumstance.” United States v Vicknair, 610 F2d 372, 380 (CA 5, 1980). Considerable guidance is afforded by several Supreme Court cases. In short: the application of the *463 Fourth Amendment depends on whether the person invoking its protection can claim a "justifiable”, a "reasonable”, or a "legitimate” expectation of privacy that has been invaded by government action. Eg., Rakas.

As I perceive the relevant principles, it devolves upon one seeking suppression of incriminating evidence to establish as a threshold matter the existence of a reasonable expectation of privacy in the area searched. United States v Torch, 609 F2d 1088, 1091 (CA 4, 1979). ("The test for whether a person may have evidence obtained in an unlawful search and seizure suppressed is whether the person had 'a reasonable expectation of freedom from government intrusion’ in the invaded place.”)

The recent case of United States v Ramapuram, 632 F2d 1149 (CA 4, 1980), addresses the issue of expectation of privacy. In Ramapuram it was held that defendant had no legitimate expectation of privacy in a junked automobile which had expired license plates, unlocked doors, and trunk lock removed, and which had been placed in an open field on a farm which his father owned; thus, warrantless removal of dynamite sticks from the trunk did not violate defendant’s Fourth Amendment rights. The case is now pending in the United States Supreme Court. The test applied in determining expectation of privacy is to view the total circumstances. United States v Dall, 608 F2d 910, 914 (CA 1, 1979), cert den 445 US 918 ; 100 S Ct 1280 ; 63 L Ed 2d 603 (1980).

But Ramapuram adopted the principal of another federal case when it stated:

"('Ownership alone is not enough to establish a reasonable and legitimate expectation of privacy. Ownership is relevant to the inquiry * * *, but the total circumstances determine whether the one challenging *464 the search has a reasonable and legitimate expectation of privacy in the locus of the search.’); United States v Rios, 611 F2d 1335, 1345 (CA 10, 1979).” Ramapuram, supra, 1154.

I would urge adoption of the broad approach of Rakas and the determination of the expectation of privacy by the totality of the circumstances test.

I would affirm the lower court’s ruling as not being in violation of the Fourth Amendment protections.

I concur with the majority that the question by the prosecuting attorney regarding the gun being found in the attorney’s office is error. While defense counsel did not specifically object to the substantive portion of the question, it was definitely prejudicial to the defendant. The prejudice was of such a nature that it was detrimental to the defendant’s case. The prosecutor may not accomplish by inference what he is clearly prohibited from doing by direct proof.

I also concur with the majority that defendant’s attorney had a duty to relinquish evidence to the authorities and that he did not violate the defendant’s attorney-client privilege by doing so.