People v. Merchant, Docket No. 77-3997

• Decision Date: 03 October 1978
• Docket Number: Docket No. 77-3997
• Citation: 272 N.W.2d 656,86 Mich.App. 355
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Taylor MERCHANT, Defendant-Appellant. 86 Mich.App. 355, 272 N.W.2d 656
• Court: Court of Appeal of Michigan — District of US

Page 656

272 N.W.2d 656

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Taylor MERCHANT, Defendant-Appellant.

Docket No. 77-3997.

86 Mich.App. 355, 272 N.W.2d 656

Court of Appeals of Michigan.

Oct. 3, 1978.

Released for Publication Jan. 3, 1979.

[86 MICHAPP 356] William G. Jackson, St. Johns, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jon Newman, Pros. Atty., for plaintiff-appellee.

Before ALLEN, P. J., and D. E. HOLBROOK, Jr. and WALSH, JJ.

PER CURIAM.

On August 2, 1977, defendant was convicted of possession of heroin with intent to [86 MICHAPP 357] deliver, M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). Sentenced to 41/2 to 20 years imprisonment, he appeals by right under GCR 1963, 806.1.

On January 24, 1977, defendant was arrested at the Capital City Airport pursuant to two outstanding felony warrants for offenses totally unrelated to the present offense. Defendant had gone to the airport to renew a rental contract with Avis Rent-A-Car. While inside the terminal his car was parked in a loading zone. After renewing the contract, defendant returned to his car where he was apprehended while seated in the parked rental car. Defendant was then taken to the public safety office inside the terminal and was arrested there. At this time an Avis employee brought defendant's rental contract to the office, refunded to defendant his money and secured defendant's signature on the cancellation form. The police then went outside the terminal, searched the trunk of the car and removed defendant's briefcase. The briefcase was brought into the office and placed on a desk. A search of the briefcase was conducted, disclosing 254 bindles of heroin. A motion to suppress was filed by defendant's trial counsel prior to trial. Upon defendant's waiver of a jury trial the hearing on the motion to suppress and the trial were combined. At the close of the proofs and legal arguments on the motion to suppress, the trial court found no constitutional violation and admitted the heroin into evidence.

During argument on the motion to suppress, defense counsel did not contest the validity of the removal of the briefcase from the car trunk, but instead claimed that the opening and examination of the briefcase after it was brought to the public service office where defendant was under arrest was illegal. The People claim that defendant has [86 MICHAPP 358] thereby waived the issue which cannot now be raised for the first time. On the facts in this case, we disagree. Where a defendant raises a constitutional question for the first time on appeal, the Court must determine if the allegedly erroneously admitted evidence was decisive to the outcome of the case. People v. Summers, 70 Mich.App. 584, 246 N.W.2d 152 (1976), People v. Blassingame, 59 Mich.App. 327, 229 N.W.2d 438 (1975). Here, the challenged evidence was totally decisive since defendant's conviction was based exclusively on the bindles of heroin found in the briefcase. Under these circumstances we allow defendant to raise the issue even though our ruling admittedly makes for a less complete record than is desired. ¹

On appeal defendant argues that since the search was warrantless it was illegal Per se unless shown to be within one of the well-recognized exceptions to the warrant requirement rule. People v. Reed, 393 Mich. 342, 362, 244 N.W.2d 867 (1975). In his comprehensive brief defendant contends that none of the exceptions, including the automobile exception, ² are applicable. We view the issue differently.

Within a few minutes after defendant was placed under arrest in the airport terminal building, Jane Rundell, the Avis employee who earlier had accepted an additional deposit which extended defendant's rental contract, returned to refund some $30 in cash to defendant and to obtain his [86 MICHAPP 359] signature terminating the rental agreement. She did so after phoning her superior to obtain instructions on what to do with the car and being instructed to close out the contract. Defendant did not object and signed the printed contract form showing the rental agreement was terminated. ³

In view of the unrebutted testimony that the rental agreement was terminated, that the car was the property of Avis rather than defendant, and that the car was illegally parked in a loading zone, we conclude that defendant no longer had standing to contest the removal therefrom of his personal possessions. He had surrendered any reasonable expectation of privacy. As was stated in People v. Hopko, 79 Mich.App. 611, 262 N.W.2d 877 (1977), Lv. den., 402 Mich. 950O (1978), Fourth Amendment protection from warrantless search or seizure does not extend to situations where the reasonable expectation of privacy no longer exists. Defendant cites two New Mexico decisions purportedly holding that a constitutionally protected expectation of privacy extends to a rented car. State v. Brubaker, 85 N.M. 773, 517 P.2d 908 (Ct.App.1973), State v. Lewis, 80 N.M. 274, 454 P.2d 360 (Ct.App.1969). The cases are clearly distinguishable. In neither had the rental agreement been terminated. In each case the rental agent acknowledged [86 MICHAPP 360] a continuing right of the lessee to the rented vehicle. But where, as here, the rental agent no longer recognizes any right of the lessee to the car, a subsequent New Mexico case, State v. Clark, 89 N.M. 695, 696, 556 P.2d 851, 852 (Ct.App.1976), suggests that the defendant would not have standing to object to the search of the vehicle.

"The state first contends that the defendant did not have standing to object to the search and seizure. We disagree. Mr. Johnson stated that he was holding the vehicle until paid what was owing and if defendant did not pay he was going to keep the contents of the van. The facts show that Mr. Johnson was waiting for the money owing at the time of the inventory search. Mr. Johnson was holding the vehicle for the defendant subject to payment. This recognition of defendant's right to the vehicle by the U-Haul representative, Mr. Johnson, was sufficient to give defendant standing to object to the inventory search and seizure." State v. Lewis, 80 N.M. 274, 454 P.2d 360 (Ct.App.1969). (Emphasis supplied.)

Having determined that removal of the briefcase was permissible the remaining question is whether the warrantless opening of the case was justified. The trial court upheld the search of the defendant's briefcase under the inventory exception to the warrant requirement. ⁴...