People v. Catania

Decision Date10 February 1987
Docket NumberDocket Nos. 76742,76743
Citation398 N.W.2d 343,427 Mich. 447
CourtMichigan Supreme Court
PartiesThe PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Donald CATANIA, Defendant-Appellee. 427 Mich. 447, 398 N.W.2d 343

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul L. Maloney, Berrien County Pros. Atty. by John T. Burhans, Asst. Pros. Atty., St. Joseph, for plaintiff-appellant.

James K. Jesse, Jesse & Jesse, Buchanan, for defendant-appellee.

BOYLE, Justice.

In this case, an undercover police agent obtained entry into the defendant's home by feigning car trouble and asking to use the telephone. During the half-hour that the agent was in the home, the defendant offered her marijuana which the two smoked. The agent left, and a search warrant was obtained on the basis of evidence of criminal activities obtained by the agent while in the home. The Court of Appeals held that probable cause was required to support a ruse entry such as the one in this case. Because we find no violation of the Michigan or the United States Constitution, we reverse.

I FACTS

On March 10, 1981, the Berrien County Metro Narcotics Squad sent JoAnn Ward, an attractive young undercover police informant, to Donald Catania's home to attempt to purchase drugs. She had been told that there was possible drug trafficking at his residence. Ward had worked as an informant at least thirty times before.

Around 7:30 p.m., Ward knocked at Catania's back door and asked to use his telephone because of feigned car problems. She also gave a fictitious name for herself. After using the telephone, she said that she was on her way to a party, her car had overheated, and she just needed a little bit of time for it to cool down. After discussing the fact that she was going to a party and its location, Catania suggested that if she wanted to, they could smoke a "joint." At that point, the defendant walked over to the kitchen counter and produced a tray upon which there was a plastic baggie containing suspected marijuana, a "roach clip," and some cigarette rolling papers. He then rolled a cigarette of suspected marijuana and smoked it with Ward. While "smoking" the cigarette, 1 Ward asked the defendant if he lived at that house by himself, to which he replied, "Yeah."

Before Catania produced the tray of marijuana, Ms. Ward had not discussed or asked for any drugs. The defendant initiated the talk about marijuana. Ward did not look for or see any marijuana before the defendant produced the tray.

After smoking the cigarette, Ward asked if she could possibly get a couple of "joints" for the road. The defendant declined because he didn't have enough. Ward then asked if he knew whether there was any "coke" (cocaine) around, to which the defendant replied, "What do you think you fell into here?" Ward and defendant had some discussion about her possibly meeting him at a bar the next evening. She was in the defendant's residence for a total period of approximately one-half hour.

On the basis of the information obtained by Ward, a complaint, affidavit, and search warrant were prepared by the Metro Narcotics Squad. Upon searching his home, the police found a variety of incriminating evidence: a large garbage bag filled with a bale of marijuana, a plastic bag of cocaine, several thousands of dollars in cash, and various drug paraphernalia. 2 This evidence was admitted at Catania's trial, and he was convicted by a jury of one count of possession with intent to deliver cocaine and one count of possession with intent to deliver marijuana.

Defendant claims that his consent to Ms. Ward's entry into his home was not voluntary and knowing and that Ms. Ward's presence in his home was an unconstitutional search without a warrant. Therefore, Catania urges that the fruits of the search--the evidence obtained pursuant to a warrant based upon Ms. Ward's investigation--be suppressed. A split panel of the Court of Appeals agreed. People v. Catania, 140 Mich.App. 755, 366 N.W.2d 38 (1985). Because we find no violation of the Michigan and United States Constitutions, we reverse the decision of the Court of Appeals and reinstate the defendant's conviction.

II

The initial focus is upon whether either the Fourth Amendment of the United States Constitution or Const.1963, art. 1, Sec. 11 is implicated in this case. The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...." U.S. Const., Am. IV.

The analogous provision of the Michigan Constitution provides:

"The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state." Const.1963, art. 1, Sec. 11.

Under "black letter" search and seizure law, a search without a warrant is considered unreasonable per se, and thus is invalid, unless it falls within "a few specifically established and well-delineated exceptions." 3 Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978).

One situation in which neither a warrant nor probable cause is required is where the police obtain the suspect's consent to a search. In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Court considered the nature of consent required under the constitution where known police agents conducted a search without a warrant after obtaining the permission of the suspect. Rejecting a requirement that the suspect make "an intentional relinquishment or abandonment of a known right," id., 412 U.S. p. 235, 93 S.Ct. at p. 2052, the Court held that a showing of traditional voluntariness was sufficient:

"[W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances...." Id., pp. 248-249, 93 S.Ct. at p. 2059.

The primary concern of the Schneckloth Court was to ensure the suspect's freedom from governmental coercion in agreeing to the search. Id., p. 228, 93 S.Ct. at p. 2048.

In cases where the government agent is undercover, the government coercion about which the Schneckloth Court was concerned is not present. Indeed, while Schneckloth assumed that a search occurred, commentators on the type of undercover activities involved in this case differ on whether a consensual ruse entry removes the activity from the protection of the Fourth Amendment altogether (no search) or is an exception to the warrant requirement. See, e.g., Gardner, Consent as a bar to Fourth Amendment scope--A critique of a common theory, 71 J Crim L & Criminology 443, 443-444 (1980); Warner, Comments, Governmental deception in consent searches, 34 U Miami L R 57 (1979). We believe that in cases of this sort, where entry by an undercover agent is effected solely by the invitation of the defendant, albeit under a misconception as to the agent's identity and purpose, there is no Fourth Amendment or Const.1963, art. 1, Sec. 11, activity so long as the agent does not exceed the scope of the invitation. The majority of courts considering this question agree. See generally Anno: Officer's ruse to gain entry as affecting admissibility of plain-view evidence--Modern cases, 47 ALR4th 425, Sec. 2(a).

A review of the relevant United States Supreme Court cases supports this view. 4 Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), most clearly parallels the instant case. Partin, one of Hoffa's Teamster associates, became a government informant. Under guise of friendship, Partin was privy to ostensibly private conversations in Hoffa's hotel suite in which Hoffa planned to bribe the jurors in his trial for jury tampering. Partin relayed the conversations to the government and testified against Hoffa in the subsequent trial for jury tampering. A four-member majority 5 in Hoffa found that there was no Fourth Amendment activity involved. Justice Stewart first described the scope of Fourth Amendment protection:

"What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion." Id., 385 U.S. p. 301, 87 S.Ct. at p. 413.

Then Justice Stewart turned to the crux of the Fourth Amendment consent question and said, "Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Id., p. 302, 87 S.Ct. at p. 413. The Hoffa opinion essentially held that citizens assume the risk that their associates may be undercover agents. Id., p. 302, 87 S.Ct. at p. 413.

In Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), a case decided the same term as Hoffa, the Court rejected the argument that, absent a warrant, "any official intrusion upon the privacy of a home constitutes a Fourth Amendment violation and that the fact the suspect invited the intrusion cannot be held a waiver when the invitation was induced by fraud and deception." I...

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