People v. Farrow
| Decision Date | 12 October 1999 |
| Docket Number | Docket No. 114252. |
| Citation | 600 N.W.2d 634,461 Mich. 202 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Scott FARROW, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Cyril C. Hall, Pontiac, for the defendant.
The defendant was charged with possession of marijuana with intent to deliver,1 on the basis of the seizure of marijuana from his residence. He moved to suppress the evidence, claiming that it was the product of an illegal search and seizure. The circuit judge conducted an evidentiary hearing and ordered the evidence suppressed. However, the Court of Appeals reversed, ruling that the evidence showed that the defendant consented to the search. We conclude that the circuit judge did not clearly err in finding that there was no valid consent, and reverse.
On the evening of September 25, 1997, police seized a quantity of marijuana from the defendant's Pontiac home. As a result, he was charged with possession of marijuana with intent to deliver. He moved to suppress the evidence, and an evidentiary hearing was held in the circuit court. Two police officers, Detectives Froehlich and Liggins, and the defendant testified.
The defendant testified that he met Froehlich at the door. Froehlich was holding a black plastic or leather folder, which he opened in order to get out his business card. He held the folder in an open position so that the defendant could see what was inside. Inside the folder was the top part of a form bearing the label "Oakland County" and "Search Warrant." The bottom half was obscured by the flap on the folder.
The officers then asked if they could enter, at which point the defendant stepped back. The officers came in and told the defendant that his friends should probably leave, which they did. The officers then asked if the defendant had any marijuana in the house. The defendant went to the freezer and got a bag of marijuana, which he gave to the officers.
The defendant testified that he believed the officers were there under a search warrant, that he did not have the right to refuse the officers' entry, and that refusal carried with it the possibility of his house being torn apart. He admitted that he did not see his name or address on the warrant and was not told that the warrant was for his home.
In his direct testimony, Froehlich said that he and the other officers went to the defendant's residence, and that he identified himself to the defendant with a business card and asked to talk with the defendant. The defendant asked some of his guests to leave and, after they did, Froehlich said he and Liggins were invited inside. Froehlich sat on the couch in the living room next to the defendant. Froehlich explained that they were there to investigate a marijuana complaint and asked if the defendant had marijuana in the house. At that point, the defendant got up, went to the kitchen, and got a quantity of marijuana out of the refrigerator, handing it to the officer.
On cross-examination, Froehlich testified to uncertainty about the use of the folder and warrant form:
Q. And in terms of identifying yourself, you produced a card. Is that not accurate?
A. Yes I did.
Q. And when you produced a card, you opened up your folder.
A. I may or may not have. Q. Okay, and in your folder was a form that indicated Search Warrant, and it also had the sheriff's department insignia on it. Is that correct?
A. I don't recall.
Q. Okay. You do have a folder that you have Search Warrants in. Is that not correct?
A. I have a folder that is correct.
Q. And does it have Search Warrants contained therein?
A. On occasion it does.
Q. Okay, and in addition you opened that folder and retrieved a card though. Is that correct?
A. Yes I did.
Q. And during the period of time that you opened the folder, Mr. Farrow was standing right in front of you. Is that not true?
A. Yes he was.
Detective Liggins' testimony was consistent with that of Froehlich, though he provided fewer details.
The circuit judge initially rejected the prosecutor's argument that there was no search, and then turned to the question of consent. The judge found that the defendant allowed the officers to enter because of his view of the search warrant form, which he thought to be a lawful court order:
* * *
The prosecutor appealed, and the Court of Appeals reversed.2 The Court accepted the trial judge's finding that a search occurred, but held that the finding that the defendant's consent was not valid was clearly erroneous. The Court of Appeals explained:
Defendant admitted that the police did not tell him that they had a search warrant, and that the search warrant form he claimed to have observed did not contain his name or address. The instant case is distinguishable from the authority relied on by defendant below, Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), in which entry was allowed and consent to search was given only after the police falsely represented that they had a search warrant. While valid consent cannot be found to exist if a person opens a door in response to a police command, Bumper, supra, 391 U.S. at 548-550,88 S.Ct. 1788, defendant did not do so in this case. He readily admitted the officers to his residence. His expressed consent was unequivocal. Kaigler, supra.
He demonstrated no fear, and at no time indicated that he was cooperating because he was afraid or because he thought that a warrant existed. Fear that is not manifested and that does not put the police on notice that consent is not freely given will not render a search invalid. People v. Waskowski, 23 Mich.App. 60, 63, 178 N.W.2d 113 (1970).
The defendant has filed an application for leave to appeal to this Court.
In Bumper v. North Carolina, supra,
the United States Supreme Court made clear that where a person "permits" a search in the face of an assertion by the police that they have a warrant, there is no consent that can support the validity of the search. The Court explained:
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