People v. Murphy

• Decision Date: 05 December 1978
• Docket Number: Docket No. 77-3664
• Citation: People v. Murphy, 274 N.W.2d 819, 87 Mich.App. 461 (Mich. App. 1978)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael George MURPHY, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 819

274 N.W.2d 819

87 Mich.App. 461

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael George MURPHY, Defendant-Appellant.

Docket No. 77-3664.

Court of Appeals of Michigan.

Dec. 5, 1978.

Rehearing Denied Jan. 8, 1979.

Released for Publication Feb. 9, 1979.

George C. Dovas, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Don W. Atkins, Asst. Pros. Atty., for plaintiff-appellee.

Before BEASLEY, P. J., and R. B. BURNS and VANDER WAL, ^* JJ.

R. B. BURNS, Judge.

Defendant was convicted by a jury of receiving and concealing stolen property, M.C.L. § 750.535; M.S.A. § 28.803. He appeals and we reverse.

Prior to trial defendant moved to suppress unlawfully obtained evidence and to quash the information. The prosecutor stipulated that the trial court could decide the motions solely on the evidence presented at the preliminary examination. The trial court denied the motions. On review of the trial court's denial of defendant's motions, we are limited to consideration of evidence presented at the examination, and may not consider evidence subsequently presented at trial. ¹ People v. Walker, 385 Mich. 565, 189 N.W.2d 234 (1971).

Evidence presented at the examination established that furs were stolen from Furs by Ceresnie in Birmingham, Michigan, on September 30, 1976. Sergeant Dennerly, of the Detroit Police Department, was successful in having some of the furs delivered to his police station on October 1, by having an unidentified individual make some telephone calls. Sergeant Dennerly traced one call to 541 Copland, in Detroit, and went there with three other Detroit police officers and a Birmingham police officer. The three other Detroit officers went to the front door, and he and the Birmingham officer went around to the back porch. There were two doors with windows in them, and through one window he saw defendant run downstairs with furs over his arm, and moments later run back upstairs without the furs. He shouted to the officers in front that the furs were in the house, and was shortly let in by one of them. He went to the basement and recovered several furs, which were identified as having been stolen from Furs by Ceresnie. He did not have a search warrant, and did not know how the other officers got into the house.

Defense counsel argued before the magistrate that defendant should not be bound over because no search warrant was obtained, and because Sergeant Dennerly saw defendant with the furs only after trespassing by going to the back porch. The magistrate ruled that there was inadequate evidence to infer that Sergeant Dennerly was improperly on the back porch. Counsel renewed his argument before the trial court, which also ruled that it could not find Sergeant Dennerly was a trespasser. On appeal, plaintiff argues that the furs were within "plain view".

"To sustain the validity of a warrantless search the burden rests on the people to demonstrate that the police acted in a reasonable manner, based on probable cause and in response to an exigent circumstance bringing the search under one of the specifically established exceptions to the warrant requirement." People v. White, 392 Mich. 404, 410, 221 N.W.2d 357, 359 (1974), Cert. den., 420 U.S. 912, 95 S.Ct. 835, 42 L.Ed.2d 843 (1975).

In the instant case the magistrate and trial court have shifted the burden of proof from plaintiff to defendant. The issue is not whether defendant established that Sergeant Dennerly was where he should not be, but whether plaintiff has justified Sergeant Dennerly's presence on the back porch.

For Fourth Amendment purposes, a search occurs when an individual has a reasonable expectation of privacy in the area searched. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Depending upon the circumstances, an individual may have a reasonable expectation of privacy in his back yard. See People v. Hopko, 79 Mich.App. 611, 262 N.W.2d 877 (1977). Certainly many citizens have a reasonable expectation of privacy when they pass before even uncurtained back door windows. Consequently, plaintiff had a burden to elicit facts from which it could be inferred that defendant had no...