People v. Jordan

• Decision Date: 04 March 1991
• Docket Number: Docket No. 117386
• Citation: 187 Mich.App. 582,468 N.W.2d 294
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phalon Darnell JORDAN, Defendant-Appellant. 187 Mich.App. 582, 468 N.W.2d 294
• Court: Court of Appeal of Michigan — District of US

Page 294

468 N.W.2d 294

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phalon Darnell JORDAN, Defendant-Appellant.

Docket No. 117386.

187 Mich.App. 582, 468 N.W.2d 294

Court of Appeals of Michigan.

Submitted Oct. 18, 1990, at Detroit.

Decided March 4, 1991, at 9:10 a.m.

Released for Publication May 6, 1991.

[187 MICHAPP 583] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janice M. [187 MICHAPP 584] Joyce Bartee, Asst. Pros. Atty., for the People.

State Appellate Defender by Rolf E. Berg, for defendant-appellant on appeal.

Before HOLBROOK, P.J., and CYNAR and WEAVER, JJ.

HOLBROOK, Presiding Judge.

Following a bench trial, defendant was convicted of attempted assault with intent to commit armed robbery, M.C.L. Sec. 750.89; M.S.A. Sec. 28.284, M.C.L. Sec. 750.92; M.S.A. Sec. 28.287. He was subsequently sentenced to a term of five years' probation. Defendant appeals as of right. We affirm.

Defendant's conviction stems from an attempt to rob, at gunpoint, Teddy Shaw, who was using an automatic teller machine at a local bank branch. Much to defendant's chagrin, Mr. Shaw was also armed with a handgun and thwarted the attempted robbery by shooting defendant first. Defendant fled the scene in a car driven by an accomplice and was taken to a nearby hospital. Mr. Shaw provided the police with a description of defendant, his clothing, including an unusual T-shirt he was wearing, and other items.

Detroit police officer Gary Regulski was dispatched to the hospital in response to notification by hospital personnel that they were treating an individual for a gunshot wound. When he arrived at the hospital, he found that defendant was undergoing surgery for treatment of his wound. Hospital personnel proceeded to turn over to Officer Regulski, at his request, a bag containing defendant's clothing. Officer Regulski admitted he was told to obtain the clothing by someone in the homicide section and that he did not have a search [187 MICHAPP 585] warrant. He further admitted that he could not see the clothing until he physically opened the bag and that defendant never gave him permission to take the clothing.

Before trial, defense counsel moved to suppress evidence of the clothing, arguing that it was obtained pursuant to an unlawful search and seizure. Although defense counsel conceded that there was probable cause to seize the clothing, he argued that the seizure was nevertheless illegal because it was not done pursuant to a warrant and that, under the circumstances, there did not exist an exception to the warrant requirement. The prosecutor argued in response that the clothing could be seized under the plain-view exception. The motion to suppress was denied.

After the ruling, counsel stated that he had planned to assert a defense of misidentification, but that this was no longer viable. Counsel further stated that he would cross-examine regarding the issue to avoid a harmless-error analysis on appeal. During direct examination of Mr. Shaw, it was revealed that he had failed to pick defendant out of a photographic lineup, although he recognized defendant at the preliminary examination and identified defendant at trial. Mr. Shaw stated there was no doubt in his mind that defendant was the person who had attempted to rob him.

Defendant testified on his own behalf, stating he was waiving the right to remain silent and was testifying only because the court had precluded his misidentification defense when it denied his motion to suppress. Defendant testified that Mr. Shaw had made racial slurs against him and that he drew his gun only after seeing Mr. Shaw with a gun in his hand. Defendant claimed that it was he, and not Mr. Shaw, who was the victim of a crime.

The trial judge rejected defendant's version of [187 MICHAPP 586] the incident and convicted defendant of attempted assault with intent to commit armed robbery, but acquitted him of assault with intent to commit armed robbery and possession of a firearm during the commission of a felony.

The issue presented by defendant in this appeal is one of first impression in Michigan: Whether the search and seizure without a warrant of defendant's clothing, in the temporary custody of the hospital while he was undergoing surgery, was permissible under the plain-view exception.

The right against unreasonable searches and seizures is guaranteed by both the state and federal constitutions. U.S. Const., Am. IV; Const.1963, art. 1, Sec. 11. The state constitutional standard is not higher than the federal standard. People v. Ragland, 149 Mich.App. 277, 281, 385 N.W.2d 772 (1986). The constitutions do not forbid all searches and seizures, only unreasonable ones. Harris v. United States, 331 U.S. 145, 150, 67 S.Ct. 1098, 1101, 91 L.Ed. 1399 (1947). Reasonableness depends upon the facts and circumstances of each case. Cady v. Dombrowski, 413 U.S. 433, 440, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973). The applicable test in determining the reasonableness of an intrusion is to balance the need to search, in the public interest, for evidence of criminal activity against invasion of the individual's privacy. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

Generally, a search conducted without a warrant is unreasonable unless there exists both probable cause and exigent circumstances establishing an exception to the warrant requirement. People v. Malone, 180 Mich.App. 347, 355, 447 N.W.2d 157 (1989); People v. Anthony, 120 Mich.App. 207, 210, 327 N.W.2d 441 (1982), lv.den. 417 Mich. 897 (1983), cert. den. 462 U.S. 1111, 103 S.Ct. 2463, 77 L.Ed.2d 1340 (1983). Probable cause to search exists when facts and circumstances warrant[187 MICHAPP 587] a reasonably prudent person to believe that a crime has been committed and that the evidence sought will be found in a stated place. Whether probable cause exists depends on the information known to the officers at the time of the search. People v. Preston Williams, 160 Mich.App. 656, 660, 408 N.W.2d 415 (1987). Among the recognized exceptions to the warrant requirement are exigent circumstance, consent, and plain view. People v. Castle, 126 Mich.App. 203, 208, 337 N.W.2d 48 (1983).

The exigent-circumstance exception is applicable where the police have probable cause to believe that an immediate search will produce specific evidence of a crime and that an immediate search without a warrant is necessary in order to (1) protect the officers or others, (2) prevent the loss or destruction of evidence, or (3) prevent the escape of an accused. People v. United States Currency, 148 Mich.App. 326, 330, 383 N.W.2d 633 (1986).

The consent exception permits searches and seizures when consent is unequivocal and specific, and freely and intelligently given. Malone, supra. Although consent to a search must ordinarily be given by the person affected, a third party may consent to the search when the consenting person has an equal right of possession or control of the premises. People v. Bunker, 22 Mich.App. 396, 402, 177 N.W.2d 644 (1970). The validity of a consent depends on the totality of the circumstances, People v. Brown, 127 Mich.App. 436, 441, 339 N.W.2d 38 (1983), and the prosecutor has the burden of proving that the person consenting was authorized to do so and did so freely, People v. Wagner, 104 Mich.App. 169, 176, 304 N.W.2d 517 (1981). A consent can be valid even if the person is not apprised of his right to refuse consent. Malone, supra, 180 Mich.App. at p. 356, 447 N.W.2d 157.

[187 MICHAPP 588] The plain-view exception allows the seizure of objects within the plain view of an officer who has a right to be in the position to have that view. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968); People v. Tisi, 384 Mich. 214, 218, 180 N.W.2d 801 (1970). Three conditions must be satisfied. First, there must be prior justification for the officer's intrusion into an otherwise protected area. Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971), reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971); People v. Blackburne, 150 Mich.App. 156, 165, 387 N.W.2d 850 (1986). Second, the evidence must be obviously incriminatory or contraband. Blackburne, supra. Third, the discovery must be totally inadvertent. Coolidge, supra, 403 U.S. at p. 469, 91 S.Ct. at p. 2040.

Generally, if evidence is unconstitutionally seized, it must be excluded from trial. Exclusion of improperly obtained evidence serves as a deterrent to police misconduct and preserves judicial integrity. Terry v. Ohio, 392 U.S. 1, 12-13, 88 S.Ct. 1868, 1875-1876, 20 L.Ed.2d 889 (1968). The exclusionary rule applies not only to evidence improperly seized during a search without a warrant, but to evidence subsequently seized pursuant to a warrant obtained as a result of an initial illegal search. Evidence in the latter category is excludable only if it would not have been obtained but for illegal government activity. Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380, 3391, 82 L.Ed.2d 599 (1984). Evidence is not to be excluded if the connection between the illegal police conduct and the discovery, search, and seizure of the evidence is so attenuated as to dissipate the taint, such as when the government learns of evidence from an independent source, id., at p. 805, 104 S.Ct. at p. 3385, or would have inevitably discovered the evidence regardless of the unconstitutional conduct. People v. Kroll, 179 Mich.App.[187 MICHAPP 589] 423, 429, 446 N.W.2d 317 (1989). Similarly, the exclusionary rule applies only if the evidence was obtained by official impropriety which was directed at the person moving for suppression. People v. Malone, 177 Mich.App. 393, 400, 442 N.W.2d 658 (1989).

Standing to challenge a search or seizure is not automatic. People v. Smith, 420 Mich. 1, 20, ...