People v. Chapman

• Decision Date: 03 February 1977
• Docket Number: Docket No. 27683
• Citation: 73 Mich.App. 547,252 N.W.2d 511
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Chad E. CHAPMAN, Defendant-Appellant. 73 Mich.App. 547, 252 N.W.2d 511
• Court: Court of Appeal of Michigan — District of US

Page 511

252 N.W.2d 511

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Chad E. CHAPMAN, Defendant-Appellant.

Docket No. 27683.

73 Mich.App. 547, 252 N.W.2d 511

Court of Appeals of Michigan.

Feb. 3, 1977.

Released for Publication April 27, 1977.

[73 MICHAPP 549] Jerry L. Sumpter, Cheboygan, for defendant-appellant.

Frank J. Kelley, Atty., Gen., Robert A. Derengoski, Sol. Gen., Elmer L. Radka, Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and GILLIS and V. J. BRENNAN, JJ.

BRONSON, Presiding Judge.

Defendant appeals by leave granted from circuit court affirmance of his misdemeanor conviction for illegal possession of more than one deer. M.C.L.A. 312.12; M.S.A 13.1341. Defendant's primary attack on the conviction is directed at the district court's denial of his motion to suppress evidence. Defendant contends that the three deer, or parts thereof, which were seized from his residence, should have been suppressed as the result of an illegal search and seizure.

The factual situation out of which this search and seizure claim arises is unusual.

The record discloses that on December 23, 1974, at approximately 11:45 p. m., the Onaway Volunteer Fire Department was notified of a fire at the home of defendant. Defendant's house was ablaze when they arrived, and the volunteer firemen spent the next 15 minutes or so in bringing the fire under control.

The blaze was apparently limited to the main part of the house. When the fire was substantially under control, the fire chief, a truck driver by profession, entered a breezeway which connected the house to a garage in order to open some windows and doors to vent the heavy accumulation of smoke. His object was to permit the firemen to see what they were doing when they entered the house to mop up.

The chief entered the garage looking for another [73 MICHAPP 550] door to open. In the garage, he observed one deer hanging on a stringer, plus a doe head and a buck lying on some cement blocks. Suspecting that the deer were possessed illegally, he called one of the volunteer firemen, a Mr. Badder, and told him to keep everyone out of the garage.

Mr. Badder, a part-time police officer as well as a volunteer fireman, complied with this directive and stood at the door to the garage. While standing there, he observed the deer in the garage.

It appears that Badder's sole purpose in being on the premises was to help put out the fire and that he went and stood by the garage door pursuant to the order of the fire chief only in furtherance of this firefighting function. There has been no suggestion that Badder's purpose in being on the scene was to further any criminal investigation or that he had any reason to suspect that illegal venison was in defendant's house.

While Badder secured the garage and the other firemen finished mopping up the fire, the fire chief sent word to the game warden. A State of Michigan conservation officer received the report that illegal deer had been found in defendant's house, drove to Onaway, and picked up the deer.

Defendant claims that his right to be protected against unreasonable searches and seizures was violated when the conservation officer entered the garage and removed the deer without obtaining a warrant. We disagree that the absence of a search warrant rendered the deer a product of an illegal search and seizure. We find that no illegal search and seizure occurred because there was no search.

The deer were seized by a police officer, Mr. Badder, after they had inadvertently come within his plain view while he was lawfully in a place where he had a right to be.

[73 MICHAPP 551] The basic rules underlying our decision were well stated in two recent Supreme Court cases. In People v. Whalen, 390 Mich. 672, 677, 213 N.W.2d 116, 119 (1973), the Supreme Court said:

"As stated by the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) the basic constitutional rule in this area is that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well delineated exceptions.

"However, before the above rule can be applied, and the exceptions to it come into play, it first must be established from the facts before the court, that a search did in fact take place for Fourth Amendment purposes.

"From Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) there has evolved a test, applied by the courts, to determine whether or not a search, by Fourth Amendment standards, has indeed taken place. Simply put, if an individual has a reasonable expectation of privacy in the area searched, or the materials seized, a search has been conducted. 'What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.' Katz, supra, 351, 88 S.Ct. 507, 511.

"Thus seizure of objects within the plain view of an officer, lawfully in a place where he had a right to be, are not proscribed by the Constitution. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927)."

The Supreme Court had previously adopted the following rule in People v. Tisi, 384 Mich. 214, 218, 180 N.W.2d 801, 803 (1970):

"In the recent case of Harris v. United States (1968), 390 U.S. 234, p. 236, 88 S.Ct. 992, p. 993, 19 L.Ed.2d 1067, the Court said (p. 236):

" 'It has long been settled that objects falling in the [73 MICHAPP 552] plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.' "

Under the plain view doctrine, by which the instant seizure is justified, the most crucial inquiry is how the police officer came to be in the position from which he was able to view the materials seized. Once rightfully in such a position, he has a right, if not a duty, to seize objects which he has a reasonable basis for believing are fruits or implements of a crime, contraband, or evidence. See ...