People v. Dagwan, Docket No. 262921.

• Citation: 269 Mich. App. 338,711 N.W.2d 386
• Decision Date: 22 December 2005
• Docket Number: Docket No. 262921.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Aaron DAGWAN, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

711 N.W.2d 386

269 Mich. App. 338

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Aaron DAGWAN, Defendant-Appellee.

Docket No. 262921.

Court of Appeals of Michigan.

Submitted December 7, 2005, at Grand Rapids.

Decided December 22, 2005, at 9:00 a.m.

COPYRIGHT MATERIAL OMITTED

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, W. Clayton Graham, Prosecuting Attorney, and Alfred Feleppa, Assistant Prosecuting Attorney, for the people.

Trenton M. Stupak, Escanaba, for the defendant.

Before: WHITBECK, C.J., and BANDSTRA and MARKEY, JJ.

MARKEY, J.

Plaintiff appeals by leave granted the trial court's order granting defendant's motion to suppress evidence. The issue presented on appeal is the scope of the consent defendant granted the Michigan State Police to "conduct a complete search of the motor vehicle owned by me and/or under my care, custody, and control, including the interior, trunk, engine compartment, and all containers therein[.]" The trial court suppressed alleged child sexually abusive material the police found electronically stored on a laptop computer located inside the car, essentially reasoning that even in "a search supported by consent," there must be probable cause that the item that "is being looked for will be found in a specific place." We reverse.

Defendant entered the Michigan State Police post in St. Ignace and asked Sergeant Amy Pendergraff how he could transfer his Michigan sex offender registration to Massachusetts. Pendergraff contacted Trooper Elaine Bitner at the State Police post in Sault Ste. Marie. Trooper Bitner told Sergeant Pendergraff that defendant was being investigated for a possible sex offender registry violation, see MCL 28.729. Trooper Bitner asked Sergeant Pendergraff to detain defendant, so she searched defendant for weapons, then placed him in a holding cell. Soon thereafter, Trooper Bitner told Sergeant Pendergraff that the Chippewa County prosecutor had authorized a complaint for an arrest warrant charging defendant with a sex offender registry violation and asked her to arrest defendant on the basis of this probable cause.

Sergeant Pendergraff testified that she advised defendant he was under arrest. Defendant then consented to a search of his car. Sergeant Pendergraff stated that when she asked defendant if he was freely giving consent and if he would sign a written consent form, he said yes. Specifically, Sergeant Pendergraff testified: "He said yes. I got the form, filled it out. He read it over. He signed it." The pertinent part of the consent form is quoted above. Defendant initialed the form to the left of the paragraph describing the scope of the search and signed it at the bottom. Sergeant Pendergraff testified that she was searching for illegal items, including stolen property.

Trooper Marie Nelson testified that she and Sergeant Pendergraff went to the holding cell, and she asked defendant if he had anything in the vehicle that he should not have. Defendant answered no and told the troopers to "take a look." Trooper Nelson told defendant that she was going to do an inventory search of his vehicle after he gave them consent to search it. According to Trooper Nelson, she did not hear defendant say anything to revoke his consent to search the entire vehicle.

Sergeant Pendergraff further testified that she took defendant outside, and he unlocked his car for her. Sergeant Pendergraff found a laptop and some other equipment in the car. She asked defendant about the laptop because he had indicated earlier that he was living in his car. She explained that in her experience, people who live in their cars usually do not own laptops. None of the items removed from defendant's car was listed as stolen in police records. Sergeant Pendergraff also testified that defendant never revoked or restricted his consent to search, but she acknowledged that she did not specifically ask him whether she could start and look at the contents of the computer. Sergeant Pendergraff gave the computer to Detective Sergeant Robin Sexton to examine.

Detective Sexton, who had special training in computer data recovery, ran a cursory image search using a compact disc containing a computer software program designed for that purpose. Detective Sexton found what appeared to be child pornography. Detective Sexton explained that he then "turned the computer down and submitted for a search warrant."

Defendant was charged with three counts of possession of child sexually abusive material. MCL 750.145c(4). Defendant waived preliminary examination and moved in the circuit court to suppress the images found on his computer. The trial court granted the motion, concluding, in essence, that "containers," as referred to in the consent form, did not include "the inner workings of the computer." This Court then granted the prosecution's application for leave to appeal.

We review de novo the trial court's ultimate decision to suppress evidence on the basis of an alleged constitutional violation. People v. Frohriep, 247 Mich.App. 692, 702, 637 N.W.2d 562 (2001). But we review the trial court's findings of fact for clear error, deferring to the trial court's special opportunity to determine the credibility of witnesses appearing before it. Id.; MCR 2.613(C). We will only determine that a finding of fact is clearly erroneous if, after reviewing the entire record, we are left with a definite and firm conviction that a mistake has been made. Frohriep, supra at 702, 637 N.W.2d 562.

Both the United States Constitution and the Michigan Constitution guarantee to the people the right to be free from unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11. The touchstone of these protections is reasonableness; not all searches are constitutionally prohibited, only unreasonable searches. Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); People v. Shields, 200 Mich.App. 554, 557, 504 N.W.2d 711 (1993). Ordinarily, searches or seizures conducted without a warrant are unreasonable per se. People v. Borchard-Ruhland, 460 Mich. 278, 293-294, 597 N.W.2d 1 (1999). And, generally, when evidence has been seized in violation of the constitutional prohibition against unreasonable searches and seizures, it must be excluded from trial. People v. Wilkens, 267 Mich.App. 728, 732, 705 N.W.2d 728 (2005).

There are, however, a number of recognized exceptions to the warrant requirement, including voluntary consent. Borchard-Ruhland, supra at 294, 597 N.W.2d 1; Frohriep, supra at 702, 637 N.W.2d 562. To validate an otherwise unreasonable search or seizure, the consent must be unequivocal, specific, and freely and intelligently given. Frohriep, supra at 702, 637 N.W.2d 562. On a motion to suppress, it is a question of fact for the trial court to determine on the basis of an assessment of the totality of the circumstances whether a person has freely and voluntarily consented to a search. Schneckloth v. Bustamonte, 412 U.S. 218, 248-249, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Borchard-Ruhland, supra at 294, 597 N.W.2d 1. Here, defendant does not dispute that he freely and voluntarily consented to a search of his car, "including the interior, trunk, engine compartment, and all containers therein[.]" Defendant only asserts that the scope of his consent did not include reviewing data stored in the memory of the laptop located inside his car. No Michigan appellate court has previously addressed this precise question.

To decide this issue, we begin by reviewing the basic principles governing the scope of searches authorized by consent. First, the party granting consent to a search may limit its scope or may revoke consent after granting it. Frohriep, supra at 703, 637 N.W.2d 562; People v. Powell, 199 Mich.App. 492, 496-499, 502 N.W.2d 353 (1993). Thus, because consent flows from its grantor, "[a] suspect may of course delimit as he chooses the scope of the search to which he consents." Jimeno, supra at 252, 111 S.Ct. 1801. Second, the constitutional standard for determining the scope of a consent to search "is that of `objective reasonableness'— what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Id. at 251, 111 S.Ct. 1801. The Jimeno Court also observed, "The scope of a search is generally defined by its expressed object." Id.

In Jimeno, the suspect granted the police general consent to search his car after the police told him they suspected it might contain narcotics. The police found narcotics in a paper bag on the floor of the car. Id. at 249-250, 111 S.Ct. 1801. The Jimeno Court held that "it was objectively reasonable for the police to conclude that the general consent to search respondents' car included consent to...