People v. Krontz

• Citation: 213 N.W.2d 593,50 Mich.App. 495
• Decision Date: 02 November 1973
• Docket Number: No. 3,Docket No. 15915,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Paul KRONTZ, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 593

213 N.W.2d 593

50 Mich.App. 495

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Paul KRONTZ, Defendant-Appellant.

Docket No. 15915.

Court of Appeals of Michigan, Division No. 3.

Nov. 2, 1973.

Released for Publication Jan. 15, 1974.

Kenneth J. Olson, Three Rivers, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James Noecker, Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and DANHOF and BASHARA, JJ.

LESINSKI, Chief Judge.

Defendant was convicted by a bench trial of assault with intent to do great bodily harm less than the crime of murder. M.C.L.A. § 750.84; M.S.A. § 28.279. He was sentenced to 6 to 10 years and appeals as of right.

The only substantial issue raised on appeal presents a search and seizure question which arose in particularly unconventional circumstances.

When defendant was arrested for assaulting his wife in their trailer park home, he was without footwear. Sheriff's officers had obtained a valid warrant to search defendant's mobile home and seized certain evidence, overlooking defendant's boots. Defendant repeatedly requested officers at the jail to bring him his boots, as he wanted to wear them to the preliminary examination.

An officer asked the defendant where the boots were and he replied that they were at his mobile home. The officer called the owner of the trailer park, told her that the defendant wanted his boots, and asked her if she would remove them from defendant's home and bring them to the Sheriff's Department.

The trailer park owner located the boots at the defendant's home, and noticing a 'big gob' of hair wedged between the heel and the sole of one of the boots, took them to the courthouse instead of the Sheriff's Department. The officer at the courthouse also observed the hair and noticed what appeared to be bloodstains on the boots. He thereupon seized the boots as evidence. No warrant at this time was obtained.

The trial court denied the defendant's motion to suppress the boots and they were admitted into evidence. Two of defendant's daughters, who witnessed the assault, testified that the defendant had repeatedly 'stomped' on his wife, and identified the boots as those which the defendant was wearing at the time of the assault. Expert testimony established that the blood on the boots was human blood and the hair was 'similar' to that of the victim.

Defendant contends on appeal that the boots were improperly admitted into evidence. Even though no warrant was obtained to seize the boots, to uphold the defendant's argument would be inconsistent with the provisions of U.S.Const. Am. IV, and Const.1963, art. 1, § 11 of the Michigan Constitution, as interpreted by decisions of the United States and Michigan Supreme Courts.

The initial query in any search and seizure problem is whether or not there was a search. The controlling test determinative of this question is whether the police activity has violated the defendant's reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A defendant has a reasonable expectation of privacy in regard to the shoes he is wearing even though in custody, People v. Trudeau, 385 Mich. 276, 187 N.W.2d 890 (1971), and in regard to shoes lying in his closet. People v. Eddington, 387 Mich. 551, 198 N.W.2d 297 (1972).

However, we feel there is no reasonable expectation to privacy concerning a pair of boots which a defendant requests the police to bring to him. The defendant's act of requesting the police to obtain the boots clearly indicates a lack of concern over protecting any privacy in regard to the boots. We hold that the action of the police in requesting the trailer park owner to bring the boots to the station, and her subsequent delivery of the boots to an officer at the courthouse, did not constitute a search.

Given that there is no police activity amounting to a search, or even if the activity were to be considered a search, the next point of inquiry is whether or not the 'seizure' without a warrant was reasonable under the circumstances.

As stated in Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, 1069 (1968):

'It has long been settled that objects falling in the plain view of an officer Who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.' (Emphasis supplied.)

The Court in Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583 (1971), elaborated upon the plain view doctrine:

'(T)he 'plain view' doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Ker v. California, 374 U.S. (23) at 43, 83 S.Ct. (1623) at 1635 (10 L.Ed.2d 726 at 743 (1963)). Cf. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966).

'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...