People v. Antwine

• Decision Date: 28 June 2011
• Docket Number: Docket No. 297287.
• Citation: 293 Mich.App. 192,809 N.W.2d 439
• Parties: PEOPLE v. ANTWINE.
• Court: Court of Appeal of Michigan — District of US

293 Mich.App. 192

809 N.W.2d 439

PEOPLE

v.ANTWINE.

Docket No. 297287.

Court of Appeals of Michigan.

Submitted June 15, 2011, at Detroit.Decided June 28, 2011 at 9:00 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and David A. McCreedy, Assistant Prosecuting Attorney, for the people.

Daniel J. Rust for defendant.

Before: FITZGERALD, P.J., and SAWYER and BECKERING, JJ.

PER CURIAM.

The prosecution appeals as of right orders suppressing evidence seized from defendant's home and the resultant dismissal of the drug and weapons charges against defendant. The prosecution argues that the trial court erred when it concluded that defendant's Fourth Amendment right to be free from unreasonable searches and seizures was violated because police officers conducted a warrantless search of defendant's condemned home that he was unlawfully occupying. We agree with the prosecution and reverse the trial court's rulings.

We review de novo questions of law underlying a trial court's decision whether to suppress evidence. People v. Gadomski, 274 Mich.App. 174, 178, 731 N.W.2d 466 (2007). We review for clear error findings of fact necessary to the court's decision. People v. Bolduc, 263 Mich.App. 430, 436, 688 N.W.2d 316 (2004); MCR 2.613(C). “A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made.” People v. Swirles (After Remand), 218 Mich.App. 133, 136, 553 N.W.2d 357 (1996).

The Fourth Amendment of the United Stated Constitution, U.S. Const., Am. IV, and article 1, § 11 of the Michigan Constitution, Const. 1963, art. 1, § 11, prohibit unreasonable searches and seizures. Bolduc, 263 Mich.App. at 437, 688 N.W.2d 316. The Michigan constitutional provision is generally construed to afford the same protections as the Fourth Amendment. Id. at 437 n. 9, 688 N.W.2d 316. “ [T]he Fourth Amendment protects people, as opposed to places or areas....” People v. Taylor, 253 Mich.App. 399, 404, 655 N.W.2d 291 (2002). Accordingly, “a search for purposes of the Fourth Amendment occurs when the government intrudes on an individual's reasonable, or justifiable, expectation of privacy.” Id. Whether an expectation of privacy is reasonable depends on two questions. Id. at 404–405, 655 N.W.2d 291, citing Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). First, did the individual exhibit “an actual, subjective expectation of privacy”? Taylor, 253 Mich.App. at 404, 655 N.W.2d 291. Second, was the actual expectation “one that society recognizes as reasonable”? Id. “ Whether the expectation exists, both subjectively and objectively, depends on the totality of the circumstances surrounding the intrusion.” Id. at 405, 655 N.W.2d 291.¹

This case arises from a police search of a house located in the city of Hamtramck. Defendant owned the house, which had been condemned as “unfit for human occupancy or use” because it lacked water service and a sanitary facility. A notice originally posted at the house stated in part, “IT IS UNLAWFUL FOR ANY PERSON TO USE OR OCCUPY THIS BUILDING AFTER 10/15/09 ” and “ ANY UNAUTHORIZED PERSON REMOVING THIS SIGN WILL [ BE ] PROSECUTED. ENTRY ALLOWED FROM 8:00 A.M. TO 8:00 P.M. FOR CLEAN UP AND REPAIR ONLY [.]” The police were notified that an unknown person was inside the house. Accordingly, at approximately 6:00 a.m. on November 3, 2009, Hamtramck police officers arrived at the house and went to the front door, which was padlocked. They observed lights and a television on inside. They knocked, announced themselves as police officers, and stated that they needed to speak to the person inside. A man inside answered, “Okay, I'll meet you in the back of the house.” Defendant met them at the back door, explained that he owned the house, and stated that he had proof of ownership in his car and would get the keys to the car from inside the house. He allowed the officers to enter the house while he retrieved the keys.

The officers accompanied defendant to the northeast room of the house, where defendant retrieved his car keys. An officer went to the car and found paperwork confirming that defendant owned the house. The officers observed the condemnation notice on the floor of the house. Defendant admitted tearing down the notice and living in the house. The officers also observed several Ziploc baggies and a scale that appeared to have cocaine residue on it on the floor of the room from which defendant had retrieved his car keys.

The officers proceeded to search the house—including the attic and side bedrooms—to “find out if there was anybody else inside the residence.” Officer Daniel Kruse testified that, although defendant told them no one else was in the house, Kruse saw children's clothing and shoes in a side bedroom. Kruse “couldn't leave the residence unsecured.” They found no one, and the attic was empty. As the officers walked back down the dark attic stairs, however, Kruse shone his flashlight onto a loose step and saw that it had “separated so that there was a hole.” Kruse saw “a box, with a yellow baggie of what appeared to be crack cocaine” in the hole. On the basis of these observations, the officers obtained a search warrant for the house and executed the warrant later that day. They confiscated the scale and two or three baggies of cocaine. They also confiscated a loaded rifle from the enclosed back porch.

The prosecutor charged defendant with possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)( iv ), possession of 25 grams or more, but less than 50 grams of cocaine, MCL 333.7403(2)(a)( iv ), and possession of a firearm during the commission of a felony, MCL 750.227b, as a second-offense habitual offender, MCL 769.10. Defendant moved to quash the bindover, suppress the seized evidence, and dismiss the charges. Most relevant to this appeal, he argued that his Fourth Amendment rights had been violated because the police should not have conducted the initial search of his home absent a warrant or exigent circumstances.

The trial court granted the motion to suppress and, because of the resulting lack of evidence, dismissed the case. The court concluded that the owner of a condemned house retains a property right to possess it and that this right to possession must be acknowledged in some way. The court focused on the officers' decision to go upstairs, finding that this “clearly went beyond the scope of why they were there.” The court declined to believe their testimony that they were looking for other individuals unlawfully present. Rather, “they wanted to take advantage of it, and they wanted to search upstairs,” although defendant had not given them permission to do so. The court concluded, “[T]here was no reason that they had to be upstairs, no exigent circumstances , nothing.” Accordingly, the court held that the defense had shown by a preponderance of evidence that the resulting search and seizure was illegal under a totality of the circumstances and that the evidence should be suppressed.

The prosecution argues that a person can have no reasonable expectation of privacy in a dwelling that he or she unlawfully occupies. The prosecution cites cases that include Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Rakas is factually distinguishable because the defendants in that case neither owned nor asserted a possessory right in the car searched or the items seized from it. Id. at 148, 99 S.Ct. 421. But some of the Rakas Court's reasoning is helpful. First, Rakas reaffirmed that, even under a prior threshold for challenging a search described in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), “ ‘wrongful’ presence at the scene of a search would not enable a defendant to object to the legality of the search.” Rakas, 439 U.S. at 141 n. 9, 99 S.Ct. 421. Rakas also drew upon Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which held that “capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas, 439 U.S. at 143, 99 S.Ct. 421, citing Katz, 389 U.S. at 353, 88 S.Ct. 507. Rakas and the cases cited therein thus suggest two relevant points: first, an overall reasonable expectation of privacy—not the existence (or the lack) of a property right—controls the analysis and, second, wrongful presence weighs against a reasonable expectation of privacy.

The prosecution also persuasively cites Cross v. Mokwa, 547 F.3d 890 (C.A.8, 2008). There, the court upheld a warrantless police search of a condemned home, as well as the arrest of the five people present for occupying a condemned building, even though the occupants were staying at the home with the owner's permission. Id. at 893–894. The court concluded that the warrantless entry was justified in light of the nature of condemned buildings and the duty of public officials to access such buildings for various reasons. It observed:

When a building has been condemned as unsafe for human occupation, it becomes, at least from the government's perspective, an abandoned structure. Public health and safety require that police officers, as well as building inspectors, have the right to access such structures at any time for a variety of reasons—to evict illegal occupants, to seek out and seize contraband and hazardous substances that may be illegally hidden there, to eliminate dangerous conditions that might injure adventurous trespassers such as children, and to prepare the premises for safe demolition. [ Id. at 895.]

The court reasoned that, even if the defendants had standing to challenge the search and...