People v. Hopko

• Decision Date: 21 November 1977
• Docket Number: Docket No. 30589
• Citation: 262 N.W.2d 877,79 Mich.App. 611
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas John HOPKO, Defendant-Appellant. 79 Mich.App. 611, 262 N.W.2d 877
• Court: Court of Appeal of Michigan — District of US

Page 877

262 N.W.2d 877

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas John HOPKO, Defendant-Appellant.

Docket No. 30589.

79 Mich.App. 611, 262 N.W.2d 877

Court of Appeals of Michigan.

Nov. 21, 1977.

Released for Publication March 7, 1978.

[79 MICHAPP 613] Sisk & Robson, P. C. by Douglas J. Robson, East Lansing, for defendant-appellant.

[79 MICHAPP 612] Frank J. Kelley, Atty. Gen., Robert A. [79 MICHAPP 613] Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and ALLEN and HEADING, ^* JJ.

ALLEN, Judge.

This appeal raises the basic issue of whether the constitutional protection ¹

against unreasonable searches and seizures requires suppression of evidence clearly visible in a backyard garden area where an investigative officer, without first obtaining a warrant, seizes 54 plants of growing marijuana. Defendant was charged with manufacturing marijuana in violation of M.C.L.A. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c). Following denial of his motion to suppress, based upon the Fourth Amendment prohibition against unreasonable searches and seizures, defendant was tried by a jury and found guilty. On July 2, 1976, he was sentenced to one year probation and 15 days imprisonment in the county jail and he appeals as a matter of right.

FACTS

Defendant and his family were renters of the lower floor of a two-story house in Holt, Michigan. The upper floor was rented to John Jewett and his family. Adjoining the house, which faced west on Aurelius Road, was a backyard area containing two gardens some 20 to 50 feet apart. The two [79 MICHAPP 614] gardens had been plowed by the landlord who informed the tenants to choose the one each wanted. The Jewett family chose the garden in the north side of the yard and defendant's family used the south garden. Between the back entrance of the house and the garden was an open lawn area over which one must walk in order to reach the gardens. This area was shared in common by the two tenants. The backyard was enclosed on the north, south and east sides by a fence. In back of the gardens at the rear (east end) of the yard was a large weed patch. On the afternoon of July 23, 1975, following an argument with defendant, Jewett flagged down a cruising patrol car driven by Corporal Robert Siegrist of the Ingham County Sheriff's Department. After informing the officer that he believed marijuana was growing in his neighbor's garden, Jewett led the officer into the backyard area for the purpose of investigation. When Siegrist was approximately 15 feet from the Hopko garden he saw what appeared to be a marijuana plant growing at the end of a row of corn and sunflowers. Closer examination disclosed other marijuana plants spaced some 10 to 12 inches apart between the corn and sunflowers. Wishing to confirm his determination, Officer Siegrist telephoned the Tri-County Metro Narcotics Squad for assistance. Within a few minutes Detective Wesley Shaw of the narcotics squad arrived and, upon examining the garden area, found what he concluded to be marijuana growing among the corn and sunflowers in the Hopko garden. Whereupon Officer Siegrist, his suspicions confirmed, cut 54 plants ranging in height from 8 inches to 41/2 feet from defendant's garden. Officer Siegrist continued his on-the-scene investigation by contacting defendant who had remained inside his downstairs apartment during the search and seizure. When [79 MICHAPP 615] asked by Siegrist which garden was his, defendant pointed to the garden from which the marijuana plants were taken. The plants were sent to the State Police Crime Laboratory and were found to be marijuana. Later, a warrant was issued for defendant's arrest.

ISSUES

The principal question raised in this appeal is whether a backyard area which is divided into two separate gardens shared by joint tenants as aforesaid is covered by the constitutional search and seizure guarantees. The question is one of first impression in this jurisdiction. Should the answer to this question be "yes", the People argue that the seizure is still permissible under the "plain view" doctrine a recognized exception to the rule that a warrant is required. In rebuttal defendant argues that the plain view doctrine is inapplicable since, under this doctrine, the discovery of the evidence must be inadvertent. People v. Heard, 65 Mich.App. 494, 237 N.W.2d 525 (1975); ² Coolidge v. New Hampshire, 403 [79 MICHAPP 616] In its opinion the trial court noted that if a warrantless search occurred which was not justified under the plain view rule, it still could be validated as a consent search since consent to search defendant's garden was given by a cotenant. Defendant argues that as to this issue the trial court erred since in cases of "third party consent" it must appear that the person consenting has common authority, viz.: mutual use of the property searched. United States v. Matlock, 415 U.S. 164, 178, 94 S.Ct. 988, 997, 39 L.Ed.2d 242, 253-254 (1974); People v. Flowers, 23 Mich.App. 523, 179 N.W.2d 56 (1970). In the present case the record is clear that Jewett had no authority to enter upon or to use defendant's garden.

U.S. 443, 469, 91 S.Ct. 2022, 2040, 29 L.Ed.2d 564, 585 (1971). Defendant contends that the inadvertence is missing since the officer knew what he was looking for when he entered the backyard area.

THE SEARCH

The first standard for determining whether a warrant for a search and seizure is required is whether the individual affected holds a reasonable expectation of privacy in the area searched.

" 'whenever an individual may harbor a reasonable "expectation of privacy," * * * he is entitled to be free from unreasonable governmental intrusion.' " United States v. Dionisio, 410 U.S. 1, 8, 93 S.Ct. 764, 769, 35 L.Ed.2d 67, 76 (1973).

"(T)here 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 v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), cited in People v. Whalen, 390 Mich. 672, 677, 213 N.W.2d 116 (1973).

[79 MICHAPP 617] The instant case is unique in that the defendant did not occupy the house or garden alone. Instead, he shared the backyard area with a cotenant. Given these circumstances we conclude that defendant had a qualified but not total expectation of privacy. As to the public in general his expectation of privacy was total. As such, he was protected from any entry by uninvited third parties. We also find that defendant could reasonably expect that his cotenant, sans invitation, would not enter upon defendant's garden plot or invite others to do so. But we do not believe that defendant could reasonably expect his cotenant to shut his eyes to what could obviously be observed from the cotenant's garden plot. Nor could he reasonably expect privacy from what invitees of the cotenant ³ could observe, while standing on the cotenant's garden or that part of the lawn area which was shared in common. Though the Fourth Amendment umbrella would protect defendant from even the cotenant's or his invitees' warrantless entry upon defendant's own garden for the purpose of digging for suspected buried contraband, its shadow does not extend so wide as to shroud from view 4-foot high plants which could clearly be observed and identified by the cotenant or his invitees from the vantage point of the cotenant's garden area or the shared-in-common yard area.

Application of this principle of law to the facts in this case leads us to conclude In People v. E., 38 A.D.2d 394, 330 N.Y.S.2d 3 (1972), aff'd, 30 N.Y.2d 884, 335 N.Y.S.2d 435, 286 N.E.2d 919 (1972), the manager of a building containing two separate apartments, while collecting rent from the upstairs, had observed defendants smoking marijuana and had also seen a scale and other drugs. He promptly called the police whom he admitted to the vestibule and staircase. Upon entering the building the officers climbed the stairs finding the apartment door open. Looking through the open door they observed the defendants and, on a table, a scale containing marijuana and marijuana in packages. Without a warrant the officers entered the apartment, confiscated the marijuana and arrested the occupants. The court rejected the defendants' claim of a Fourth Amendment violation. [79 MICHAPP 619] The similarities between People v. E. and the instant case are striking. Each involved two separate apartments within a single building. In each, a third party who was entitled to be on the premises, upon first observing what he believed to be a criminal violation, invited the police on the premises. In each, the police, while lawfully upon a part of the premises and without first intruding onto defendant's property, observed a felony in progress. ⁵

                that the defendant's reasonable expectancy of privacy was in no way violated.  The officer did not enter the curtilage uninvited.  He came at the request of the [79 MICHAPP 618] cotenant who had every right to invite him to the backyard area.  Upon entering the backyard the officer, while still standing upon the lawn area through which it was necessary to walk in order to reach either garden, observed what he believed to be marijuana. 4  The lawn area from which the officer's observation was made was shared in common by the two tenants.  From this vantage point the officer could clearly see at least one 41/2 foot marijuana plant extending above the corn and sunflowers.  While the defendant had total privacy from an officer's intrusion onto defendant's own garden area and then discovering marijuana, he had no privacy from his cotenant Jewett or Jewett's invitees

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