People v. Mack

• Citation: 298 N.W.2d 657,100 Mich.App. 45
• Decision Date: 15 September 1980
• Docket Number: Docket No. 78-3703
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Edward MACK, Defendant-Appellant. 100 Mich.App. 45, 298 N.W.2d 657
• Court: Court of Appeal of Michigan (US)

Page 657

298 N.W.2d 657

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Edward MACK, Defendant-Appellant.

Docket No. 78-3703.

100 Mich.App. 45, 298 N.W.2d 657

Court of Appeals of Michigan.

Sept. 15, 1980.

Released for Publication Dec. 9, 1980.

John C. Mouradian, Detroit, for defendant-appellant.

[100 MICHAPP 46] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief, Asst. Pros. Atty., Diane Odrobina, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P. J., and RILEY and QUINNELL, ^* JJ.

RILEY, Judge.

Defendant was convicted of first-degree felony murder, M.C.L. § 750.316; M.S.A. § 28.548, and of possession of a firearm in the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2).

Defendant appeals as of right, alleging two errors, one of which we hold requires reversal.

Defendant correctly argues that the court erred in denying his motion to suppress evidence seized in a warrantless search of the home where he was [100 MICHAPP 47] staying. Although the search was conceded to be improper, the trial court ruled that defendant was without sufficient proprietary or possessory interest in the home to have standing to invoke the exclusionary rule.

At the evidentiary hearing, testimony revealed that the house belonged to defendant's mother and was occupied by his cousin. Defendant was not present when the search took place, but he had been living there for approximately two weeks. Although defendant maintained another address where he received his mail, he had some of his clothing at his mother's home and was free to come and go as he pleased.

In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court established a test for determining standing to dispute a search and seizure. ¹ A defendant may challenge a search only if he has a legitimate expectation of privacy in the searched area.

In the instant case, defendant had an expectation of privacy in his mother's house. We believe that this expectation was reasonable, based on his having lived there for approximately two weeks, his keeping some clothes there, and his cousin's full acceptance of his freedom to come and go at will.

In People v. Mason, 22 Mich.App. 595, 178 N.W.2d 181 (1970), this Court found, on nearly identical facts, that the defendant had standing to dispute the contested search. Although that case was decided[100 MICHAPP 48] under the "legitimately on the premises" test of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), repudiated by United States v. Salvucci, --- U.S. ----, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), we believe that it, like this case, would have the identical result under the Rakas "legitimate expectation of privacy test". The instant Court erred, therefore, in its denial of the defendant's motion to suppress.

Reversed and remanded.

BASHARA, Judge (dissenting).

I respectfully dissent. The trial court's ruling that the defendant did not have a reasonable expectation of privacy in the place of the search is not clearly erroneous.

Defendant was allegedly living with his cousin, Robert Taylor, at the time of the search. The searched house was owned by defendant's mother and rented by Taylor for a period of several years. Taylor testified at the suppression hearing that the defendant had been visiting him for about a week when the search occurred. Taylor's girlfriend, who also occupied the premises, estimated that defendant has been staying with them about two weeks. The defendant did not pay rent because he was "just visiting".

Taylor further testified that the defendant was the sole occupant of the bedroom where the disputed evidence was seized. However, Taylor also kept clothing in the closet where the evidence was found, along with defendant's clothing. The bedroom belonged to Taylor's daughter, who was temporarily sleeping in another bedroom with two other children.

When the defendant arrived at the Taylor residence, he brought three or four suits of clothing. [100 MICHAPP 49] No other items were moved from his permanent home except the seized gun.

The testimony established that, during the one or two week visit, the defendant did not always return to the Taylor residence to sleep. The night before the search was cited by Taylor as being one instance that the defendant did not return. The defendant did not return to the premises after the search.

I agree with the majority opinion in that it relies on the legitimate expectation of privacy test for determining whether the defendant has standing to object to the search and seizure. The standard was most recently reiterated in Rakas v. Illinois, 439 U.S. 128, 143-144, fn. 12, 99 S.Ct. 421, 430, fn. 12, 58 L.Ed.2d 387 (1978), reh. den. 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979). The majority opinion in Rakas illuminates application of the standard as follows:

"Obviously, however, a 'legitimate' expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as 'legitimate.' His presence, in the words of Jones, 362 U.S., at 267 (80 S.Ct. 725, 734, 4 L.Ed.2d 697, 78 A.L.R.2d 233), is 'wrongful'; his expectation is not 'one that society is prepared to recognize as "reasonable." ' Katz v. United States, 389 U.S., at 361 (88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)), (Harlan, J., concurring). And it would, of course, be merely tautological to fall back on the notion that those expectations of privacy which are legitimate depend primarily on cases deciding exclusionary-rule issues in criminal cases. Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the [100 MICHAPP 50] main rights attaching to property is to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal...