People v. Davis

• Citation: 189 Mich.App. 468,473 N.W.2d 748
• Decision Date: 21 May 1991
• Docket Number: Docket No. 125120
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Harriet Lee DAVIS, Defendant-Appellee. 189 Mich.App. 468, 473 N.W.2d 748
• Court: Court of Appeal of Michigan — District of US

Page 748

473 N.W.2d 748

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Harriet Lee DAVIS, Defendant-Appellee.

Docket No. 125120.

189 Mich.App. 468, 473 N.W.2d 748

Court of Appeals of Michigan.

Submitted Jan. 10, 1991, at Detroit.

Decided May 21, 1991, at 9:15 a.m.

Released for Publication Sept. 19, 1991.

[189 MICHAPP 469] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., and Timothy A. Baughman, Chief of Research, Training, and Appeals, for People.

Bellanca, Beattie & DeLisle, P.C. by Frank D. Eaman, Detroit, for defendant-appellee.

Before JANSEN, P.J., and WAHLS and HOOD, JJ.

PER CURIAM.

The prosecutor appeals as of right from a December 12, 1989, Detroit Recorder's Court order granting defendant's motion to suppress the evidence seized in a search of a motel room which defendant was occupying. Accordingly, the charges against defendant were subsequently dismissed. ¹

During the evidentiary hearing regarding defendant's motion to suppress, Detroit police officers Lynn Brown and Royce Hill testified that on August 4, 1989, they were assigned patrol car 7-5. On that evening, at approximately 6:00 p.m., in response to a 911 emergency call, the dispatcher radioed the following message, "Car 7-7, 3250 East [189 MICHAPP 470] Jefferson, Belmar Motel, room 33 or 34, desk clerk says shots fired." Although the message was not directed to their patrol car, Brown and Hill responded because they were near the motel.

Upon their arrival, the officers did not notice any unusual activity. Brown and Hill approached room 33 with their guns drawn, and Brown knocked on the door while stating, "Police, open up." In response, defendant opened the curtains, looked out, and saw Brown and Hill in uniform with their weapons drawn. Brown and Hill identified themselves as police officers, but defendant left the window and closed the curtain. As Brown continued to bang his fist on the motel room door, the motel manager arrived and offered to get the keys to the motel room. Brown testified that, on the basis of the information received from the dispatcher, he was concerned and fearful for his own safety as well as for the safety of others. After approximately three to five minutes, and before the motel manager returned with the key, defendant opened the door.

The officers stood in the doorway, with their weapons still drawn, and explained to defendant that they were responding to the radio message regarding gunfire. From his vantage point, Brown was able to see a wooden object which looked like the butt of a gun protruding from underneath a mattress. Brown also saw narcotics paraphernalia on a dresser. Brown immediately walked over to the bed to get the protruding item and discovered that it was, indeed, a gun. Once inside the room, Brown noticed that, in addition to the narcotics paraphernalia he saw from the doorway, he was able to specifically identify pharmaceutical capsules, razor blades, and containers containing white substances on the dresser.

After Brown had gotten the gun, Hill proceeded [189 MICHAPP 471] into the bathroom area, where he discovered narcotics paraphernalia on the toilet tank. In addition to Brown's discovery, Hill also found a clear plastic bag of suspected marijuana, razor blades, and cash totaling $3,370 on the dresser. Hill testified that he went into the other areas of the motel room because he was concerned that someone may have been shot and wounded.

There was conflicting evidence regarding whether patrol car 7-7 ever responded to the dispatcher's message, but the narcotics team and another marked patrol car arrived approximately twenty to thirty minutes after Brown and Hill.

Following the testimony and oral arguments, the trial court stated as follows:

Here, there was a forcible entry of a motel room, or at least an entry without consent. The entry was accomplished by police authority and demand. The entry would not have been allowed without the show of force, and authority, and the demand for entry. The conduct in question produced what we could call a plain view seizure of the items in question, although you always get involved in circular reasoning when you start to call something plain view seizure. But, to make it clear, in terms of my holding, whether or not the seizure is justified depends on whether the police had a right to be where they were.

I believe that under controlling precedent they did not. The radio run clearly gave the police a right to investigate. But, the level of information given to the police, and the way in which it was given, cannot justify a nonconsensual [sic] entry into private property.

I grant the motion to suppress. And I will dismiss the case. In so doing, I hold that the police acted reasonably in all that they did, and were I free to create law, I would uphold the seizure.... But, as I read the law, I believe that I am required to hold that under the facts of this case--and I am [189 MICHAPP 472] not indicating that it's clear--well, I don't have to say anything more. I've already said that I think what the police did was reasonable, but I don't think that there is a general exception for reasonable police activity. I think they needed a warrant, or they needed to have their activity fit within one of the recognized exceptions. It doesn't, under the facts of the case. And, as a result, I'm suppressing the evidence.

The Fourth Amendment of the United States Constitution and the parallel provision of the Michigan Constitution guarantee the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. U.S. Const., Am. IV; Const. 1963, art. 1, Sec. 11. The Fourth Amendment is not a guarantee against all searches and seizures, but only against those which are unreasonable. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); People v. Shabaz, 424 Mich. 42, 52, 378 N.W.2d 451 (1985), cert. dis. 478 U.S. 1017, 106 S.Ct. 3326, 92 L.Ed.2d 733 (1986); People v. Orlando, 305 Mich. 686, 690, 9 N.W.2d 893 (1943). Therefore, the touchstone of a reviewing court's Fourth Amendment analysis is always "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Michigan v. Long, 463 U.S. 1032, 1051, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Michigan Constitution does not impose a higher standard of reasonableness for searches and seizures than that imposed by the federal constitution. People v. Nash, 418 Mich. 196, 214-215, 341 N.W.2d 439 (1983); People v. Ragland, 149 Mich.App. 277, 281, 385 N.W.2d 772 (1986).

Generally, a search conducted without a warrant is unreasonable unless there exists both probable[189 MICHAPP 473] cause and a circumstance establishing an exception to the warrant requirement. People v. Malone, 180 Mich.App. 347, 355, 447 N.W.2d 157 (1989); People v. Anthony, 120 Mich.App. 207, 210, 327 N.W.2d 441 (1982), lv. den. 417 Mich. 897 (1983), cert. den. 462 U.S. 1111, 103 S.Ct. 2463, 77 L.Ed.2d 1340 (1983). Among the recognized exceptions to the warrant requirement are consent, exigent circumstances, and plain view. People v. Castle, 126 Mich.App. 203, 208, 337 N.W.2d 48 (1983).

When a defendant moves to suppress evidence which was allegedly illegally obtained, the prosecutor has the burden to show that the search and seizure were justified by a recognized exception to the warrant requirement. People v. Wade, 157 Mich.App. 481, 485, 403 N.W.2d 578 (1987). This Court will not reverse a trial court's decision following a suppression hearing unless it is clearly erroneous. People v. Burrell, 417 Mich. 439, 448, 339 N.W.2d 403 (1983); People v. Russo, 185 Mich.App. 422, 434, 463 N.W.2d 138 (1990). Therefore, the trial court's decision will be affirmed unless, upon a review of the record, this Court is left with a definite and firm conviction that a mistake was made. People v. Toohey, 183 Mich.App. 348, 352, 454 N.W.2d 209 (1990), lv. gtd. 436 Mich. 880, 461 N.W.2d 367 (1990).

In the instant case, the prosecutor relied on the exigent circumstances and plain view exceptions to the warrant requirement to justify the search and seizure which occurred in defendant's motel room. However, the trial court based its decision on the consent exception, and found defendant did not consent to the entry of the police officers. Nevertheless, the trial court was correct in viewing the question presented as asking whether the police were justified in commanding defendant to open the motel room door. In other words, whether the police officers were in a position where they had a [189 MICHAPP 474] right to be when they viewed the incriminating evidence.

The consent exception permits a search and seizure when the consent is unequivocal and specific. Malone, supra. The validity of a consent depends on the totality of the circumstances, People v. Brown, 127 Mich.App. 436, 441, 339 N.W.2d 38 (1983), and the prosecutor has the burden of proving that the person consenting was authorized to do so and did so freely, People v. Wagner, 104 Mich.App. 169, 176, 304 N.W.2d 517 (1981). A consent can be valid even if the person is not apprised of his right to refuse consent. Malone, supra, 180 Mich.App. p. 356, 447 N.W.2d 157.

Clearly, where an occupant opens a door in compliance with a police demand there can be no consent as a matter of law. United States v. Winsor, 846 F.2d 1569, 1573, n. 3 (C.A.9, 1988). Accord Bumper v. North Carolina, 391 U.S. 543, 548-550, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). On the facts presented in the case before us, the consent exception to the warrant requirement is not applicable. Therefore, if the seizure is to be upheld as constitutional, it must fall within one of the other recognized exceptions to the warrant requirement.

The exigent circumstances exception is applicable where the...