People v. Harden, Docket No. 16737--8

• Decision Date: 22 July 1974
• Docket Number: Docket No. 16737--8,No. 2,2
• Citation: People v. Harden, 54 Mich.App. 353, 220 N.W.2d 785 (Mich. App. 1974)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Duane HARDEN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jackie RITTENBERRY, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 785

220 N.W.2d 785

54 Mich.App. 353

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Duane HARDEN, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jackie RITTENBERRY, Defendant-Appellant.

Docket No. 16737--8.

Court of Appeals of Michigan, Division No. 2.

July 22, 1974.

Released for Publication Aug. 20, 1974.

David William Potts, Kennedy, Carson, Fischer & Potts, Southfield, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and T. M. BURNS and CARLAND,* JJ.

DANHOF, Presiding Judge.

Defendants were found guilty by a jury of breaking and entering with intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. On January 25, 1973, each defendant was sentenced to a term of 5 to 10 years in prison. They appeal. We affirm.

James Fiss, a neighbor of defendant Harden's parents, testified that at about 5 a.m. on October 14, 1972 he was awakened in his home by a loud noise. He got up in time to see a car roll into his driveway. Two people jumped out of the car and disappeared into the darkness. This incident drew his attention to the nearby Harden residence because he knew that the owners were away. The vacationing Hardens had given Mr. Fiss a key to the residence and had hold him that no one was supposed to be inside. Fiss then noted that the lights in the house were on and that a second strange car was in the Harden driveway. Fiss called the sheriff's department. The responding officer, Deputy Brown, was informed of the circumstances by Mr. Fiss.

Brown walked toward the Harden house to conduct a further investigation. On his way, he noticed that the lights had been turned out. Drawing his gun, Brown knocked on the Harden's door. Defendant Rittenberry answered and identified himself as a guest of the owner's son. When questioned further as to defendant Harden, Rittenberry said, 'Come on, I will get him'. The deputy reholstered his gun and stepped inside. He remained in the foyer while Rittenberry went into the back of the house. While waiting for Rittenberry, Brown saw a third person--later identified as one Gary Wyman--apparently sleeping on a rollaway bed in the living room.

Rittenberry returned with Harden, and Mr. Fiss identified him as the owner's son. The deputy contemporaneously noticed that Harden's right hand had been severely cut. When asked about his hand, Harden responded somewhat vaguely that he had been hurt in a fight considerably earlier in the evening. The deputy noticed, however, that the untreated wound was bleeding profusely. Deputy Brown asked whether Harden, Rittenberry, and Wyman were the only ones in the house and apparenly received an affirmative answer.

While this conversation was taking place, a backup officer, Deputy Eno, arrived on the scene. As the 2 officers conversed in the foyer, they heard a 'thud' or a series of 'thuds' from the back portion of the house. They investigated these noises and in the back bedroom discovered a fourth male subject lying in a bed apparently sleeping and a young female slumped in a closet apparently passed out. Eno returned from the back bedroom and went into the kitchen where defendants apparently were at the time. Eno called out to Brown, and he too entered the kitchen. The kitchen was in disarray. On top of a dryer near the kitchen table, Brown saw an electric scalpel with a good deal of blood on it. On top of the kitchen table, he observed a pile of glass tubes filled with a clear liquid and labeled in medical terms.

Brown then placed a call to his command deputy. Area cars were alerted to a possible B & E at a doctor's office. A third officer, Deputy Theunick, received the alert while on his way to the Fiss residence. He remembered that there was a dentist's office near the Fiss address. Upon arrival at the dentist's office, he discovered that it had been broken and entered. All 5 subjects were placed under arrest. In the Oakland County Jail, defendants' shoes were seized. A examination of the shoes revealed what appeared to be particles of glass embedded in the soles. At trial, the shoes were admitted as evidence.

The sole issue raised on appeal is whether defendant's arrest and booking was irreparably tainted by the initial discovery of the stolen goods in the Harden kitchen. Defendants contend that their arrest was a product of an illegal search and seizure in violation of U.S.Const. Amendment IV and Const.1963, art. 1, § 11.

For purposes of this opinion, we will assume, without deciding, the following: That defendants did not consent to the challenged police conduct and that Mr. Fiss did not or could not consent thereto; That defendants have standing to raise the issue of illegal search; ¹ That there is a proper relationship between the issue raised on appeal and defendants' motion to suppress. ²

In People v. Whalen, 390 Mich. 672, 677, 213 N.W.2d 116, 119 (1973), our Supreme Court distinguished between seizure which is the product of a search and seizure of items in plain view:

'As stated by the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) the basic constitutional rule in this area is that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well delineated exceptions.

'However, before the above rule can be applied, and the exceptions to it come into play, it first must be established from the facts before the court, that a search did in fact take place for Fourth Amendment purposes.

'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.' Katz, supra, 351, 88 S.Ct. 511.

'Thus seizure of objects within the plain view of an officer, lawfully in a place where he had a right to be, are not proscribed by the Constitution. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927).'

For the plain view doctrine to apply, the officer must be rightfully in a position where the evidence is plainly visible. There must be a prior justification for his intrusion and discovery of the evidence must be inadvertent:

'What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification--whether it be...