People v. Derousse
| Decision Date | 05 May 2022 |
| Docket Number | 358358 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. BRIGITTE LOUISE DEROUSSE, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Jackson Circuit Court LC No. 19-004435-FH
Before: Boonstra, P.J., and M. J. Kelly and Swartzle, JJ.
The prosecution appeals by leave granted[1] the trial court order partially granting defendant, Brigitte DeRousse's, motion to suppress evidence seized from two barns located outside the curtilage of DeRousse's home. We affirm for the reasons stated in this opinion.
On November 7, 2019, Shawn Lutz, an animal control officer in Jackson County, responded to a call that there was a cow running loose. When he arrived, the cow was in the roadway. He sounded his horn and hollered, and in response, the beast meandered back to DeRousse's property with Lutz following in his truck. Once on the property, the cow "jumped" the fence to its pen. Lutz, who intended to ensure that the cow was returned to its enclosure and to speak with its owner, observed an alarming number of dead animals on DeRousse's property, including some in carcass form and some that were skeletal. He also saw three Labrador dogs that appeared to be emaciated. From the "west pole barn," he could hear the barking and yipping of additional dogs. However, he was unable to observe them because the barn was "secured and there [were] no windows." Lutz learned from a neighbor that there had been multiple complaints of "animals at large" on DeRousse's property. Lutz later spoke with DeRousse, who acknowledged that the cow which had been running loose was a problem. She also acknowledged that there were a large number of dead animals on the property, but she said she did not know how they had died. Lutz sought a search warrant because he was concerned about the number of dead animals and the emaciated condition of the three dogs he observed.[2]
On November 8, 2019, he returned to DeRousse's property with the warrant and seized approximately 35 animals. From the west pole barn, he seized 23 dogs. He testified that the dogs did not have access to food and that there was feces and urine-up to one inch thick in places- covering the floors. One of the dogs was eating feces. None of the dogs had access to drinking water. Instead, three of the dogs shared a five-gallon bucket with "marginal green water" at the bottom, which the dogs could not reach because of the depth of the bucket. The other dogs had water containers with a small amount of water that was contaminated by urine and feces. A medical examination showed that all of the dogs had internal and external parasites. One dog had a tumor on its stomach. From the "east pole barn," Lutz seized a raccoon and two cows. The cows did not have access to food or water. Their enclosure was barely large enough to allow them to turn, and the floor was covered with urine and feces. Lutz also seized several animals located in two outside pens. In both pens, the water provided for the cows was algae-infested and frozen. Hay was available in one pen, but it was covered in a netting. The hay outside the second pen was also covered in netting and the cows had eaten what they could reach from their enclosure. In order to access the hay, the cows in the south pen had to navigate two dead cows. There was also one cow that was so emaciated that it could not stand. The property also had carcasses of dead chickens, a lamb, and a large snapping turtle, which was in a burlap bag near a butcher knife.
DeRousse was initially charged with abandonment/cruelty to 4 to 10 animals, MCL 750.50(4)(c). However, on September 22, 2020, following a probable-cause hearing, the charges were amended to abandonment/cruelty to 25 or more animals, MCL 750.50(4)(e). DeRousse moved to suppress evidence regarding the seizure of the animals. Relevant to the issue raised on appeal, DeRousse argued that the search warrant permitted officers to search "a single-family dwelling," which did not include the outbuildings on the property. Therefore, she contended that the searches were illegal. DeRousse additionally argued that the warrant authorized the seizure of two silver Labradors, a chocolate Labrador, a French bulldog, a Tea Cup chihuahua, nine cows, three sheep, and items related to rabies vaccinations, but that officers seized 23 dogs. DeRousse argued that the dogs were illegally taken from a red pole barn that was not included in the search warrant. DeRousse added that officers also seized a raccoon and the pelvis of a dead animal, which she believed were outside the scope of the warrant. Following an evidentiary hearing, the trial court partially granted DeRousse's motion and suppressed the evidence seized from the two pole barns. This appeal by leave granted follows.
The prosecution contends that the trial court erred by partially granting DeRousse's motion to suppress. This Court reviews for clear error a trial court's findings at a suppression hearing. People v Williams, 472 Mich. 308, 313; 696 N.W.2d 636 (2005). "A finding is clearly erroneous if it leaves this Court with a definite and firm conviction that the trial court made a mistake." People v Dillon, 296 Mich.App. 506, 508; 822 N.W.2d 611 (2012). However, "the application of constitutional standards regarding searches and seizures to essentially uncontested facts is entitled to less deference; for this reason, we review de novo the trial court's ultimate ruling on the motion to suppress." Williams, 472 Mich. at 313.
The prosecution first argues that the search of the barns did not violate the Fourth Amendment because the barns were located outside the curtilage of DeRousse's home[3] and DeRousse did not have a reasonable expectation of privacy in either barn. We disagree.
The Fourth Amendment to the Constitution of the United States guarantees to the people the right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, Am IV. It also provides that warrants shall not be issued except "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Id. Similarly, the Michigan Constitution guarantees that "[t]he person, houses, papers, possessions, electronic data, and electronic communications of every person shall be secure from unreasonable searches and seizures," and "[n]o warrant to search any place or to seize any person or things or to access electronic data or electronic communications shall issue without describing them, nor without probable cause, supported by oath or affirmation." Const 1963, art 1, § 11. Absent a compelling reason, Michigan courts must construe Const 1963, art 1, § 11 "to provide the same protection as that secured by the Fourth Amendment." People v Collins, 438 Mich. 8, 25; 475 N.W.2d 684 (1991).
"A search within the meaning of the Fourth Amendment 'occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.'" People v Jones, 279 Mich.App. 86, 91; 755 N.W.2d 224 (2008), quoting United States v Jacobsen, 466 U.S. 109, 113; 104 S.Ct. 1652; 80 L.Ed.2d 85 (1984). "The touchstone of the Fourth Amendment is reasonableness." People v Hammerlund, 504 Mich. 442, 451; 939 N.W.2d 129 (2019). When "an individual has a reasonable expectation of privacy in the area searched, or the materials seized, a search has been conducted." People v Whalen, 390 Mich. 672, 677; 213 N.W.2d 116 (1973). An expectation of privacy is reasonable "only if the individual exhibited an actual, subjective expectation of privacy and that actual expectation is one that society recognizes as reasonable." People v Taylor, 253 Mich App 399, 405; 655 N.W.2d 291 (2002). "Whether the expectation exists, both subjectively and objectively, depends on the totality of the circumstances surrounding the intrusion." Id. When evaluating whether a defendant has a reasonable expectation of privacy in a building sufficient to challenge a search under the Fourth Amendment, "we must inquire whether [the] defendant took normal precautions to maintain his privacy-that is, precautions normally taken by those seeking privacy." Id.
The prosecution argues that DeRousse had no reasonable expectation of privacy in the barns because there was not a separate fence around either barn, both barns could be seen from the road, and they were both easily accessible from the road. Such facts, however, are pertinent to whether DeRousse had a reasonable expectation of privacy in the exteriors, not the interiors of the barns.
The prosecution also asserts that the barns were not associated with the intimate daily activities of DeRousse's home given that DeRousse kept animals in the barns and did not live in either barn. Finally, the prosecution claims that the barns were not locked and that DeRousse "failed to set up anything that showed that she had a privacy expectation in either barn." In making its argument, however, the prosecution ignores the record. Lutz testified that when he was on the property on November 7, 2019, the west barn was "secured" and, because it had no windows, he could not "get a visual ID" of the dogs that he could hear barking inside it. When he returned the next day, the barn was locked. Further, although the east barn had a partially open door, Lutz did not testify that he could see anything amiss when he peeked through that opening on November 7. Based on the record actually before us, the secured nature of the west barn reflects that DeRousse took normal precautions to maintain her privacy. Moreover although the door to the east barn was partially open, given...
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