People v. Brown

• Decision Date: 19 October 1983
• Docket Number: Docket No. 64846
• Citation: 339 N.W.2d 38,127 Mich.App. 436
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stanley Jerome BROWN, Defendant-Appellant. 127 Mich.App. 436, 339 N.W.2d 38
• Court: Court of Appeal of Michigan — District of US

Page 38

339 N.W.2d 38

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stanley Jerome BROWN, Defendant-Appellant.

Docket No. 64846.

127 Mich.App. 436, 339 N.W.2d 38

Court of Appeals of Michigan.

Submitted April 21, 1983.

Decided July 19, 1983.

Released for Publication Oct. 19, 1983.

[127 MICHAPP 437] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Graham K. Crabtree, Asst. Pros. Atty., for the People.

Gates & Gates by John E. Gates, Jr., Royal Oak, for defendant-appellant on appeal.

[127 MICHAPP 438] Before V.J. BRENNAN, P.J., and KELLY and KAUFMAN ^*, JJ.

KELLY, Judge.

Defendant was convicted by a jury of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. Sentenced to serve a term of from 20 to 40 years in prison, defendant appeals as of right.

Defendant's sole argument on appeal is that, following a pretrial evidentiary hearing, the trial court erred in failing to suppress the fruits of a warrantless entry by the police into defendant's home. Defendant challenges only the warrantless entry of his home, arguing that the resulting evidence seized is fruit of the poisonous tree and, therefore, should have been suppressed.

At the evidentiary hearing, Oak Park Police Detective Randall Rance testified that while investigating a robbery and stabbing incident he was informed that the assailant was a 5'9" black male in his mid-twenties, was dressed in a blue and white flannel shirt, and drove a cream-colored Pontiac Sunbird, license number MCP 257. After obtaining a composite drawing of the suspect and running the license number of the Sunbird through police computers, three plain-clothes officers, Rance, Babbish, and Ankofski, went to the address of the Sunbird's registered owner without a search warrant. Upon arriving, the officers saw the cream-colored Pontiac Sunbird, license number MCP 257, in the driveway. Rance and Babbish approached the house and knocked on the front door. Defendant answered the door but did not open the screen door which separated the house from its porch. Rance noticed that defendant fit the description of the suspect. The officers showed [127 MICHAPP 439] defendant their badges, identified themselves as police officers, and asked defendant his name. After defendant responded with his name, the officers asked defendant if they could come inside and talk to him. Defendant unlatched the screen door and pushed it open toward the officers. The officers then walked into the defendant's living room. Their presence in the house resulted in the seizure of evidence incriminating defendant and in his arrest. Officer Rance testified he could not remember whether defendant asked to see a search warrant.

The testimony of Oak Park Police Detective James Babbish was similar to Rance's testimony. Babbish testified that when defendant appeared at the door he resembled the composite drawing of the suspect. Babbish showed his badge, identified himself and Rance as police officers, and asked if they could come inside and talk to defendant. According to Babbish, defendant then:

" * * * pushed open the screen door and stepped aside inviting us to come in. He didn't say anything, but his actions were to come into the house, what do you want to talk about."

Defendant did not ask the officers whether they had a warrant.

Defendant testified that he heard a knock at his front door. As he approached the door, he saw two officers standing with badges in their hands. The officers asked defendant who owned the car that was in his driveway. Defendant said that it belonged to his wife. One of the officers then asked if he could talk to defendant about it. Defendant unlocked and opened the screen door in an attempt to step outside onto the porch. The officers then began to enter defendant's home without [127 MICHAPP 440] invitation. Defendant asked the officers if they had a warrant and told them to leave if they did not have one. The officers did not respond to defendant's inquiry.

Following the evidentiary hearing, the trial court stated that it believed "the police officers' testimony over the defendant's that consent was granted". Defendant's motion to suppress was denied.

Individuals are constitutionally protected from being subjected to unreasonable searches and seizures. U.S. Const., Am. IV; Const.1963, art. 1, Sec. 11. All evidence obtained in violation of this protection is inadmissible in a state court. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961), accord; People v. Winterheld (On Rehearing), 366 Mich. 428, 115 N.W.2d 80 (1962); see People v. Pennington, 383 Mich. 611, 178 N.W.2d 471 (1970) (voiding the Michigan Constitution's anti-exclusionary provision); People v. Moore, 391 Mich. 426, 435, 216 N.W.2d 770 (1974) (construing Pennington as invalidating the Michigan Constitution's anti-exclusionary provision only to the extent that it would have otherwise permitted receipt of evidence barred by the United States Constitution). A warrantless search and seizure is per se unreasonable unless shown to fall within one of the various exceptions to the warrant requirement. People v. Whalen, 390 Mich. 672, 677, 213 N.W.2d 116 (1973). Consent is one such exception. People v. Kaigler, 368 Mich. 281, 294, 118 N.W.2d 406 (1962). When consent is alleged, the burden is on the prosecution to prove by clear and positive evidence that the consent was unequivocal and specific, freely and intelligently given. Kaigler, supra, p. 294, 118 N.W.2d 406. Whether a consent is valid is a question of fact to be decided upon the evidence [127 MICHAPP 441] and all reasonable inferences drawn from it. People v. Chism, 390 Mich. 104, 123, 211 N.W.2d 193 (1973). The totality of the circumstances must be examined. People v. Reed, 393 Mich. 342, 363, 224 N.W.2d 867, cert. den. 422 U.S. 1044, 95 S.Ct. 2660, 45 L.Ed.2d 696, 422 U.S. 1048, 95 S.Ct. 2665, 45 L.Ed.2d 701 (1975). The prosecution need not demonstrate that the defendant had knowledge of the right to refuse to allow the search. People v. Klager, 107 Mich.App. 812, 816, 310 N.W.2d 36 (1981). Rather, such knowledge is but one factor to be considered in a suppression hearing. Reed, supra, 393 Mich. pp. 362-363, 224 N.W.2d 867. Conduct itself can, under proper circumstances, be sufficient to constitute consent. See People v. Whisnant, 103 Mich.App. 772, 780-781, 303 N.W.2d 887, lv. den. 411 Mich. 960 (1981).

A trial court's conclusion following a suppression hearing will not be overturned unless that conclusion is found to be clearly erroneous. People v. Rocha, 110 Mich.App. 1, 10, 312 N.W.2d 657 (1981), lv. den. 413 Mich. 912 (1982); People v. Hummel, 19 Mich.App. 266, 172 N.W.2d 550 (1969), lv. den. 383 Mich. 793 (1970); People v. McGillen # 1, 392 Mich. 251, 257, 220 N.W.2d 677 (1974); see Chism, supra, 390 Mich. p. 123, 211 N.W.2d 193. In some instances, this Court has employed an abuse of discretion standard in reviewing a trial court's ruling on a motion to suppress. E.g., People v. McIntosh, 110 Mich.App. 139, 142, 312 N.W.2d 415 (1981) (Kelly, J.). In light of the foregoing authority, it is clear that the "clearly erroneous" standard represents the proper scope of review. A ruling is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been made. Tuttle v. Dep't of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244 (1976); People v. Vandergrift, 107 Mich.App. 555, 309 N.W.2d 665 (1981).

[127 MICHAPP 442] In the instant case, whether defendant consented to the search is primarily a question of credibility. If the prosecution's witnesses are to be believed, a valid consent was given by defendant. Defendant's unlocking and opening of a door to...