People v. Clark

• Decision Date: 07 June 1984
• Docket Number: Docket No. 64109
• Citation: 350 N.W.2d 754,133 Mich.App. 619
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roosevelt CLARK, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 754

350 N.W.2d 754

133 Mich.App. 619

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roosevelt CLARK, Defendant-Appellant.

Docket No. 64109.

Court of Appeals of Michigan.

Submitted June 22, 1983.

Decided Oct. 14, 1983.

Released for Publication June 7, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Appellate Asst. Pros. Atty., Civil and Appeals and Carolyn Schmidt, Asst. Pros. Atty., for the people.

Mark Granzotto, Detroit, for defendant-appellant on appeal.

Before V.J. BRENNAN, P.J., WAHLS and DODGE ^*, JJ.

PER CURIAM.

Defendant appeals as of right a conviction for receiving and concealing stolen property with a value over $100. M.C.L. Sec. 750.535; M.S.A. Sec. 28.803. Defendant was also charged with unlawfully driving away a motor vehicle, M.C.L. Sec. 750.413; M.S.A. Sec. 28.645, however, after a bench trial, the trial judge concluded there was insufficient evidence to sustain a conviction on the charge. Defendant was sentenced to three years probation on the aforementioned conviction.

Defendant brings before this Court two allegations of error. First, defendant contends that the seizure of the car and his arrest were illegal since they resulted from the use of binoculars by a Detroit police officer without a warrant, violative of defendant's constitutional right to be free from unreasonable searches and seizures. Second, defendant argues he was denied effective assistance of counsel due to a conflict of interest which existed for his trial counsel. For reasons set forth below, we affirm.

Defendant's problems began when a motor vehicle, a silver 1980 Lincoln Mark VI, which had been reported stolen, was recovered in his garage. Detroit police officers obtained and executed a search warrant to recover the vehicle and effect the arrest.

The warrant to search defendant's property was secured based on the information supplied by a fellow officer, Officer Traskel. Officer Traskel resides almost directly across the street from defendant. Officer Traskel testified at trial that on July 16, 1980, the same day on which the vehicle was reported stolen, he observed defendant driving a silver, 1980 Lincoln automobile onto his driveway and into his garage. Officer Traskel was off duty and at home at the time. He further testified that the defendant closed the garage door and stationed his dog in front of the door. He had not seen defendant with the vehicle before.

The following day, July 17, 1980, Officer Traskel, again off duty, observed defendant on two separate occasions showing the vehicle to two different sets of male individuals. Later the same day, Officer Traskel obtained a set of binoculars for the purpose of obtaining the license number on the vehicle. The defendant returned to his garage and Officer Traskel obtained the number.

Officer Traskel called his station, requested a LEIN check on the plate number and received a return call informing him that the vehicle had been reported stolen. Thereupon, the officer notified an officer at the Fifteenth Precinct station who subsequently swore out and executed a warrant to search defendant's premises. When the officers arrived at defendant's residence on July 18, 1980, they found the vehicle still in the garage. A search of the premises revealed papers bearing the name of the true owner stuffed inside a nearby tire. Defendant was arrested and charged.

Prior to trial, defendant moved to suppress the evidence, arguing that the use of the binoculars by Officer Traskel constituted an illegal and unconstitutional search or seizure. The trial court denied the motion. At trial, defendant moved for a dismissal at the close of the prosecutor's case. Defendant's motion, based again on the use of the binoculars, was denied.

Defendant testified at trial that a man named "Ray", whose last name he did not know, brought the car to his house. Defendant testified that he met "Ray" through other people from the Eastern Market, where defendant worked. Defendant also testified that "Ray" had visited his house on two or three occasions prior to bringing over the car. When "Ray" brought the car to defendant's house, he paid defendant $40 and told him to hide the car because it was about to be repossessed. Defendant denied knowing that the vehicle was stolen and testified that he displayed the vehicle to his friends because it was a remarkable and fascinating car.

Leon Williams, a friend of defendant, testified that he was at defendant's home sometime in July or June, when he saw a red car and a silver Lincoln approaching the premises. He testified that he observed the Lincoln pull onto the driveway, but could not recall a description of the two drivers. Williams testified that later the same day defendant telephoned him to come over and see the vehicle and he did so.

Subsequent to trial, defendant filed a motion for a new trial through appellate counsel. Defendant argued that he was denied effective assistance of counsel due to a conflict of interest affecting his trial attorney. At the evidentiary hearing on the motion, defendant testified that he first learned about the Lincoln from his brother-in-law, Julius Reed; that Reed set up the storage of the vehicle for "Ray", who did not put the car into his garage until July 18, the day defendant was arrested; and that defendant's trial attorney was representing Mr. Reed on an unrelated criminal matter. Defendant testified that he told his trial attorney of Reed's involvement.

On cross-examination, defendant admitted that he did not tell the whole story at trial; the involvement of his brother-in-law was omitted because he did not want to get his wife involved.

The trial court took judicial notice that defendant's trial attorney represented Reed on an unrelated prosecution for receiving and concealing stolen property. The trial attorney testified that he was unaware that Reed was connected with defendant's case and that, had he known, he would have withdrawn. The trial judge denied defendant's motion.

Defendant seeks review from this Court on both issues.

We consider defendant's argument on these matters by first noting that it is the responsibility of this Court to sustain the findings of the trial judge unless we are convinced from a reading of the record that the conclusions of the trial court are clearly erroneous. People v. Grimmett, 97 Mich.App. 212, 293 N.W.2d 768 (1980), cert. den. 411 Mich. 853 (1981). The trial court clearly errs when the reviewing court is left with a firm conviction that a mistake has been made. People v. Goss, 89 Mich.App. 598, 601; 280 N.W.2d 608 (1979).

In the present case, defendant argues that the visually enhanced observations by Officer Traskel from his own home constitute a search without a warrant. The threshold question is whether observation by means of binoculars constitutes the type of intrusion against which the Fourth Amendment protects.

Under the Fourth Amendment, a search occurs when an individual has a reasonable expectation of privacy in the area examined. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 17 L.Ed.2d 576 (1967).

The pre-Katz cases by the United States Supreme Court held that surveillance of any kind without a physical trespass was not a Fourth Amendment search. See On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927). These decisions were based upon a theory of the Fourth Amendment which relied heavily on common law notions of trespass.

Katz broadened the concept of privacy by eliminating the trespass element: ¹"What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. * * * But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." 389 U.S. 351-352, 88 S.Ct. 511-512.

The dispositive formula since Katz contains two requirements; first, that "a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable' ". Katz, supra, 89 U.S. p. 361, 88 S.Ct. p. 516. (Harlan, J. concurring in result). See also Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

This Court has ruled that, as to the home, society is prepared to recognize an inference of privacy, so that, absent recognized exceptions, a search may not take place without a warrant. People v. Beachman, 98 Mich.App. 544, 296 N.W.2d 305 (1980). People v. Dugan, 102 Mich.App. 497, 302 N.W.2d 209 (1980), cert. den. 455 U.S. 927, 102 S.Ct. 1292, 71 L.Ed.2d 471 (1981). Compare United States v. United States Dist. Court for the Eastern Dist. of Michigan, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). However, we noted that away from the four walls of the home, the determination of a reasonable privacy expectation varies with the circumstances. ²

"There is no single factor which is determinative of an individual's reasonable expectation of privacy. Among the factors mentioned by various courts are: whether the area is within the curtilage of a residence, whether it is open to view from a public area, whether the property was owned by the defendant or in some way controlled by him, whether the defendant had a subjective expectation of privacy, whether the area was enclosed, whether the area was posted against trespass, whether there were obstructions to vision, or whether the area was in fact frequented by neighbors or strangers. We also recognize that a person may permit or even invite intrusion by friends or neighbors into areas as to which he has a reasonable expectation of privacy regarding intrusion by authorities. People v Hopko, 79 Mich App 611, 262 NW 2d 877 (1977)." People v. Dinsmore, 103 Mich.App. 660, 669, 303 N.W.2d 857 (1981).

Applying the foregoing...