People v. Dinsmore

• Decision Date: 17 February 1981
• Docket Number: Docket No. 78-4574
• Citation: 103 Mich.App. 660,303 N.W.2d 857
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Silas DINSMORE, Defendant-Appellant. 103 Mich.App. 660, 303 N.W.2d 857
• Court: Court of Appeal of Michigan — District of US

Page 857

303 N.W.2d 857

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Silas DINSMORE, Defendant-Appellant.

Docket No. 78-4574.

103 Mich.App. 660, 303 N.W.2d 857

Court of Appeals of Michigan.

Feb. 17, 1981.

Released for Publication April 15, 1981.

[103 MICHAPP 664] Carl Ziemba, Detroit, for defendant-appellant.

[103 MICHAPP 663] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Leonard J. Malinowski, Pros. Attys. Appellate Section, Thomas C. Nelson, Asst. Atty. Gen., Artis M. Noel, Pros. Atty., for plaintiff-appellee.

Before BASHARA, P. J., and RILEY and QUINNELL, ^* JJ.

QUINNELL, Judge.

Defendant was charged with two counts of open murder. Following his first trial, the court declared a mistrial after the jury was unable to agree on a verdict. A second trial was conducted at which defendant was found guilty by a jury of two counts of first-degree murder. M.C.L. § 750.316; M.S.A. § 28.548. He was sentenced to two concurrent mandatory life terms of imprisonment and now appeals of right. We affirm.

On Saturday, September 24, 1977, the bodies of Francis and Henry Beamish were found inside their residence on Waterman Road in Tuscola County. The Tuscola County Sheriff's Department was notified, and officers of that department went to the scene. The officers observed three spent, red, low-brass, skeet shot # 8, 12-gauge, Winchester AA trap shotgun shells lying on the ground outside a broken bedroom window. The body of Mrs. Beamish was lying on a bed in that bedroom. Inside the home the officers found seven shotgun wads. The body of Mr. Beamish was found in the living room.

Defendant is the former son-in-law of Mr. and Mrs. Beamish. According to the officers, they wanted to talk with defendant, not out of any particular suspicion but as part of their general investigation into the deaths. To that end, on Sunday, September 25, 1977, Detective Ronald Phillips and Deputy Larry W. Walker, both with the Tuscola County Sheriff's Department, together [103 MICHAPP 665] with the Tuscola County Prosecuting Attorney, ¹ went to the home of Annabell Dinsmore, defendant's mother. The Annabell Dinsmore home is in Bay County. Under circumstances set forth in greater detail later in this opinion, the officers came into possession of a 12-gauge shotgun belonging to the defendant, several spent shotgun shells, and a bag of more than fifty live shotgun shells. After a shell had been test fired in the shotgun, it was compared with one of the spent shells found at the Beamish residence. A state police crime laboratory scientist concluded that two of the spent shells at the Beamish residence had been fired from the defendant's shotgun. Based upon that information, Deputy Walker executed an affidavit for a warrant to search the defendant's mobile home and adjoining premises. The warrant was executed later that same day, and several items were seized, including a reloader and supplies.

Prior to trial, defendant moved to suppress the items taken from his mother's home. Had the motion been granted, the items taken from his own home would also have been suppressed. The motion was denied by the trial court, and the evidence was used at the trial at which he was convicted. Following his conviction, the defendant moved for a new trial. The motion was denied by the trial court.

On appeal to this Court, defendant alleges some eight bases of error requiring reversal.

[103 MICHAPP 666] I. The defendant claims that the shotgun and spent and live shells seized at the Annabell Dinsmore residence were improperly taken by the authorities, that these items therefore should not have been admitted in evidence at trial, and that, since these same items formed the basis for the search warrant for defendant's residence, any items seized at the defendant's residence should also have been suppressed.

The circumstances involved in the acquisition of these items at the Annabell Dinsmore residence were described at the suppression hearing as follows.

The Dinsmore residence is located at the end of Reese Road. The Dinsmore driveway continues in a northerly direction from the end of Resse Road. The residence itself is located somewhat west and north of the driveway. West of the driveway and south of the residence is a yard area, described as being like a lawn but not mowed, with some weeds growing in it. The lawn is not fenced. A rabbit cage is located some 30 to 40 feet south of the house and perhaps 75 feet west of the driveway.

As the law enforcement officers entered the driveway, they observed defendant and his brother Daniel Dinsmore standing near the cage. Defendant was laying a shotgun down, and Daniel Dinsmore had a shotgun in his possession. They appeared to have been shooting skeet. As the officers were leaving their car, defendant walked over toward the car meeting the officers at some point near the automobile. The officers were in plain clothes in an unmarked car. The officers identified themselves as such, and defendant identified himself. Walker asked the defendant to have a seat in the patrol car and engaged him in conversation after informing him of his Miranda rights.

Meanwhile, Officer Phillips and the Prosecuting [103 MICHAPP 667] Attorney continued over to the vicinity of the cage where Daniel Dinsmore was standing. Once there, Phillips was able to observe several spent shotgun shells on the ground, some of which appeared identical to the spent shells found at the Beamish residence. He also observed a 12-gauge shotgun. He asked Daniel Dinsmore who owned the shotgun and was told that it belonged to the defendant. He then asked Daniel Dinsmore to unload the shotgun, which Daniel did.

At this point, the testimony is in sharp conflict. The main thrust of the testimony of both Phillips and Walker is that Phillips then returned to the patrol car without the shotgun or shells. After some further discussion, the defendant obligingly retrieved a bag of some 54 live shells from his automobile and also consented to the officers' taking the shotgun and spent shells from the vicinity of the rabbit cage. The testimony of defendant and his brother was to the effect that Phillips retrieved the shotgun and shells before he returned to the automobile; that defendant did not consent to their seizure by the police, but that the police said, "We're going to keep them anyway." ²

[103 MICHAPP 668] At the conclusion of the testimony at the suppression hearing, the trial court correctly addressed the search issue and the seizure issue separately.

A. The "Search".

The prosecution has the burden of sustaining the validity of a warrantless search. People v. White, 392 Mich. 404, 221 N.W.2d 357 (1974).

Our first inquiry is to determine whether there was a "search" in a constitutional sense.

"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.'[103 MICHAPP 669] Katz, supra, 351 (88 S.Ct. 511)." People v. Whalen, 390 Mich. 672, 677, 213 N.W.2d 116 (1973).

The trial court found that the defendant did not have a reasonable expectation of privacy as to the vicinity in which he and his brother were shooting skeet and that, therefore, the observations of officer Phillips did not constitute a "search" in a constitutional sense. We agree.

There is no single fact 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 N.W.2d 877 (1977). In White, supra, the focus of the appellate inquiry was on the reasonableness of the police conduct rather than on a reasonable expectation of privacy by the defendant.

In considering all of these factors, we conclude that the defendant did not enjoy a reasonable expectation of privacy in the area in which officer Phillips made his observations of the shotgun and the spent shotgun shells. The area was not fenced or enclosed, and there was no obstruction to vision between it and the public street. Neither defendant nor his brother Daniel Dinsmore objected in [103 MICHAPP 670] the slightest manner to the presence of the officers according to the testimony of the officers. The officers were present during daylight hours and identified themselves as police officers. There was nothing surreptitious or deceptive about their conduct.

Defendant argues that, since the officers were from the Tuscola County Sheriff's Office and the activities in question occurred about 100 feet or so over the county line in Bay County, the officers were mere trespassers and therefore were not rightfully in the place at which they observed the shotgun and the shells. We do not agree that their presence on the property was illegal even though they were outside of their jurisdiction.

"Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned...