People v. Carter, Docket No. 233493.

• Decision Date: 29 March 2002
• Docket Number: Docket No. 233493.
• Citation: 655 N.W.2d 236,250 Mich. App. 510
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Deborah CARTER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

655 N.W.2d 236

250 Mich. App. 510

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Deborah CARTER, Defendant-Appellee.

Docket No. 233493.

Court of Appeals of Michigan.

Submitted January 10, 2002, at Detroit.

Decided March 29, 2002, at 9:00 a.m.

Released for Publication July 11, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janice M. Joyce Bartee, Senior Appellate Prosecuting Attorney, for the people.

Before: COOPER, P.J., and RICHARD ALLEN GRIFFIN and SAAD, JJ.

RICHARD ALLEN GRIFFIN, J.

We granted the prosecution's delayed application for leave to appeal an order of the circuit court affirming a district court order dismissing charges against defendant of burning personal property with a value greater than $1,000 but less than $20,000, M.C.L. § 750.74(1)(c)(i), false pretenses involving a value greater than $1,000 but less than $20,000, M.C.L. § 750.218(4)(a), and filing a false report of a felony to the police, M.C.L. § 750.411a(1)(b). We reverse and remand for trial.

I STATEMENT OF FACTS

On April 9, 1999, at approximately 4:00 a.m. Lieutenant Dennis Chojnacki of the Detroit Fire Department responded to an automobile fire on a city street. When Lt. Chojnacki arrived, he saw defendant's sport utility vehicle on fire and proceeded to extinguish the fire. After examining the vehicle, Lt. Chojnacki determined that the fire had started in the engine compartment. Because Chojnacki was unable to find any accidental cause of the fire, he reported that the fire was of "suspicious" origin. At approximately 8:00 p.m. on the same date, Lt. Derek Segars, an expert arson investigator for the Detroit Fire Department, went to investigate defendant's burned vehicle, which was still parked on the street. Without a search warrant, Lt. Segars searched the vehicle and discovered evidence of arson.

On April 11, 1999, defendant reported to the police that her vehicle was missing. Defendant stated in the report that she had last seen the vehicle in her driveway at 2:30 p.m. on April 9, 1999 (approximately ten hours after the fire department had extinguished the fire). She said that she first noticed that it was missing at 1:30 a.m. on April 10, 1999. Later, defendant confirmed in a written statement that she last saw her vehicle between 2:00 and 2:30 p.m. on April 9, 1999.

At the preliminary examination, defendant argued that Lt. Segars' search of her vehicle without a warrant was unreasonable and therefore all evidence of arson must be suppressed. The district court, relying on Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), ruled that the fire department needed a warrant to search the vehicle to determine the origin of the fire. Pursuant to the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the district court disallowed Segars' testimony regarding the evidence of arson he discovered during his search of the vehicle without a warrant. Thereafter, the district court entered an order dismissing all charges against defendant on the basis of insufficient evidence. The circuit court affirmed, and we granted the prosecution's delayed application for leave to appeal.

II THE AUTOMOBILE WARRANT EXCEPTION

In dismissing all charges against defendant, the lower courts applied the "judicially created"¹ exclusionary rule to suppress evidence discovered during the search, based on probable cause, of defendant's burned automobile. The district and circuit courts relied on a decision involving the arson of a dwelling house, Tyler, supra, as authority for their rulings that evidence discovered during the search of defendant's automobile without a warrant must be suppressed. Both courts rejected application of the automobile exception to the warrant requirement on the ground that defendant's vehicle was immobile at the time of the search.

A MOBILITY OF AUTOMOBILES

First, we disagree with the factual premise that defendant's vehicle was immobile. Although the motor of the automobile was inoperable after the fire, the vehicle was capable of mobility. During the interval between the first and second searches, defendant could have moved the automobile by summoning a tow truck. Defendant's automobile could have been hauled to any location while the police were preoccupied in court seeking a search warrant.

More fundamentally, application of the well-established automobile exception does not rise or fall depending on the peculiarities of the automobile to be searched. On the contrary, the exception was established because of the mobility of automobiles in general. Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (a ship, motorboat, wagon, or automobile is inherently different from a dwelling house); Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982) (application of the exception does not depend on the likelihood in each particular case that the automobile would have been driven away). Numerous evidentiary hearings would be required in the event that application of the automobile exception were based on fact rather than law. Further, evidence seized as a result of many reasonable searches would be suppressed if it were later discovered that at the time of the search the vehicle had a dead battery, flat tire, or some other mechanical problem that hindered its self-mobility.

In United States v. Gastiaburo, 16 F.3d 582 (C.A.4, 1994), the police impounded the defendant's automobile, thus making it immobile. Nevertheless, the Fourth Circuit Court of Appeals held that the automobile exception applied:

Gastiaburo has made two responses to the government's "automobile exception" argument. First, he has contended that impoundment effectively transformed his car from a movable vehicle into a "fixed piece of property," thus making the automobile exception to the warrant requirement inapplicable. However, the justification to conduct a warrantless search under the automobile exception does not disappear merely because the car has been immobilized and impounded. See United States v. Johns, 469 U.S. 478, 484, 105 S.Ct. 881, 885, 83 L.Ed.2d 890 (1985); Florida v. Meyers, 466 U.S. 380, 382, 104 S.Ct. 1852, 1853, 80 L.Ed.2d 381 (1984) (per curiam); Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079-81, 73 L.Ed.2d 750 (1982) (per curiam); see also [United States v. Turner, 933 F.2d 240, 244 (C.A.4, 1991); United States v. $29,000 U.S. Currency, 745 F.2d 853, 855 (C.A.4, 1984) ]. Under the Supreme Court's precedents, the fact that impoundment may have made it virtually impossible for anyone to drive the car away or to tamper with its contents is irrelevant to the constitutionality of a warrantless search under the circumstances of the present case. See, e.g., Thomas, 458 U.S. at 261, 102 S.Ct. at 3081. [Gastiaburo, supra at 586.]

The strongest authority in support of Gastiaburo is Michigan v. Thomas, supra. In lower court proceedings, our Court in People v. Thomas, 106 Mich.App. 601, 308 N.W.2d 170 (1981), ordered the suppression of evidence discovered in a vehicle on the basis that the automobile exception did not apply because the occupants of the vehicle had been arrested and the vehicle immobilized. On petition for certiorari, the United States Supreme Court reversed, holding:

We reverse. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), we held that when police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody. We firmly reiterated this holding in Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975). See also United States v. Ross, 456 U.S. 798, 807, n. 9, 102 S.Ct. 2157, 2163, n. 9, 72 L.Ed.2d 572 (1982). It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court's assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant. [Michigan v. Thomas, supra, 458 U.S. at 261, 102 S.Ct. 3079 (emphasis added).]

See also Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) ("the `automobile exception' has no separate exigency requirement"), and Florida v. Meyers, 466 U.S. 380, 104 S.Ct. 1852, 80 L.Ed.2d 381 (1984).

B REDUCED EXPECTATION OF PRIVACY FOR AUTOMOBILES

In addition, the lower courts failed to recognize or apply the second basis for the automobile exception, which is the reduced expectation of privacy regarding automobiles. In Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996), the United States Supreme Court stated:

Our first cases establishing the automobile exception to the Fourth Amendment's warrant requirement were based on the automobile's "ready mobility," an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear. California v. Carney, 471 U.S. 386, 390-391, 105 S.Ct. 2066, 2068-2069, 85 L.Ed.2d 406 (1985) (tracing the history of the exception); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). More recent cases provide a further justification: the individual's reduced expectation of privacy in an automobile, owing to its pervasive regulation. Carney, supra at 391-392, 105 S.Ct. at 2069-2070. [Emphasis added.]

See also People v. Kazmierczak, 461 Mich. 411, 418, 605 N.W.2d 667 (2000).

The Supreme Court explained in California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), that the automobile exception arises from the decrease in...