People v. Nash

• Decision Date: 20 October 1981
• Docket Number: Docket No. 78-5505
• Citation: 313 N.W.2d 307,110 Mich.App. 428
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carron Lea NASH, Defendant-Appellant. 110 Mich.App. 428, 313 N.W.2d 307
• Court: Court of Appeal of Michigan — District of US

Page 307

313 N.W.2d 307

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carron Lea NASH, Defendant-Appellant.

Docket No. 78-5505.

110 Mich.App. 428, 313 N.W.2d 307

Court of Appeals of Michigan.

Oct. 20, 1981.

Released for Publication Dec. 22, 1981.

[110 MICHAPP 434] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Joseph McCarthy, Pros. Atty. and Leonard J. Malinowski, Asst. Atty. Gen., for the people.

[110 MICHAPP 435] Chari Grove, Asst. State Appellate Defender, Detroit, for defendant-appellant on appeal.

Before R. B. BURNS, P. J., and MacKENZIE and KALLMAN, ^* JJ.

MacKENZIE, Judge.

On August 27, 1975, defendant Carron Lea Nash was convicted of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, in the shooting death of her husband, Douglas Leon Nash. She was sentenced to life imprisonment and appeals by leave granted.

Prior to the commencement of trial, defendant moved to suppress evidence obtained from a search without a warrant of a box located outside of defendant's rented trailer which uncovered the victim's body. The trial court denied this motion. Following this denial, defendant renewed the motion to suppress on August 4, 1975. A hearing was held on August 7, 1975, and, at its conclusion, defendant's motion was again denied.

At the suppression hearing on August 7, 1975, testimony was taken from Margaret Ballard and Sheriff Walter E. Scott. Mrs. Ballard testified that she and her husband owned land and a trailer which they had rented to defendant and her husband. She stated that on the afternoon of January 21, 1975, at approximately 3 p. m., she deliberately went to the trailer when she knew defendant was at work because she suspected a body might be found there. Mrs. Ballard testified that her husband had removed a box from the trailer the night before to a place directly outside the trailer and had told her to check it because it smelled and he thought it might contain meat scraps. Mrs. Ballard testified that the lid of the box was slightly ajar [110 MICHAPP 436] and when she looked inside she thought she saw a badly decomposed body which she believed to be Douglas Nash.

At the preliminary examination, Mrs. Ballard testified as follows regarding her discovery:

"I just lifted a small portion of it at first. And, then I thought possibly it was maybe a cowhide or something. And, then I just stood there thinking it-and, I figured I had to know for sure before. So I opened it up and looked. And probably not more than five minutes (elapsed)".

She said she then proceeded to the Gladwin County Sheriff's Department and, speaking to Undersheriff Ralph Covill, "I said I'd found a body, that it looked black and it looked like Douglas Nash". She said she could tell because she "could see his face". Mrs. Ballard testified that Officer Covill summoned Sheriff Walter E. Scott, whom she also told about the box containing the body and of her suspicion that it was Douglas Nash. She said she told the sheriff that she owned the property, but could not recall whether she told him at the police station or at the scene of the search. Mrs. Ballard testified that she returned with the sheriff and a deputy to the trailer and that the officers searched the box. She said that later that night the officers asked her husband for a key and permission to search the trailer.

Mrs. Ballard testified that until this discovery, even though the Nashes were two to three weeks behind in their rent, she had not done anything to terminate the tenancy relationship, and she had then considered the Nashes to be tenants. In fact, Mrs. Ballard testified at the preliminary examination that defendant had paid part of the arrearage earlier on the day the body was discovered and [110 MICHAPP 437] had phoned her saying she still wanted to rent the trailer.

Sheriff Scott testified that Undersheriff Covill told him a woman had come in and said there might be a body, bones (from an animal), or hides in a box by a trailer on McCullough Road. Sheriff Scott said he recognized the complainant as Mrs. Ballard and he followed her to the property. He said he talked to Mrs. Ballard only briefly at the station and did not then ascertain her relationship to the property. Sheriff Scott stated that when they arrived at the trailer, Mrs. Ballard told him she and her husband owned the property and were renting it. According to the officer, Mrs. Ballard told him that her husband had shown someone the trailer the night before for the purpose of renting it because the present tenants were behind in rental payments and that her husband had placed the box outside the trailer. Sheriff Scott testified that he observed no evidence of a crime until actually ripping open the box and finding the body inside.

The people have the burden of proving the reasonableness of any search and seizure. People v. White, 392 Mich. 404, 221 N.W.2d 357 (1974); People v. Siegel, 95 Mich.App. 594, 601, 291 N.W.2d 134 (1980). Failure to sustain this burden will result in suppression of evidence of any fruits of the illegal search. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). However, the trial court's determination at a suppression hearing that the evidence is admissible will be reversed only where clearly erroneous. Siegel, supra, 95 Mich.App. 602, 291 N.W.2d 134.

Initially, we hold that defendant had a reasonable expectation of privacy in the box, when moved outside the trailer but within the curtilage, worthy of Fourth Amendment protection. United [110 MICHAPP 438] States v. Molkenbur, 430 F.2d 563 (CA 8, 1970), cert. den. 400 U.S. 952, 91 S.Ct. 244, 27 L.Ed.2d 258 (1970). See, generally, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

A search without a warrant is, per se, unreasonable unless there exists both probable cause and circumstances establishing one of the delineated exceptions to the warrant requirement. People v. Reed, 393 Mich. 342, 362, 224 N.W.2d 867 (1975). Mrs. Ballard's statement that she had observed a dead body in a box on the premises gave the police probable cause to believe that a crime had been committed and that evidence of the crime could be found on the premises.

There were, however, insufficient exigent circumstances justifying an immediate warrantless search. Had the police further questioned Mrs. Ballard, they would have ascertained that defendant worked the afternoon shift from 3 p. m. until 11 p. m., and would not be returning to the trailer for at least seven hours. Mrs. Ballard had not alerted defendant regarding her discovery of the body; therefore, there was no reason to believe defendant would conceal, remove, or destroy evidence during the time necessary to procure a warrant. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The evidence was inadmissible under the "plain view" doctrine as Sheriff Scott testified that he was unable to observe any evidence of a crime until trespassing on the premises and actually ripping open the box and looking inside. See Coolidge, supra, 465-468, 91 S.Ct. 2037-2039.

As merely the owner of rented premises, Mrs. Ballard had no authority to consent to the search of the trailer during the tenancy. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d [110 MICHAPP 439] 828 (1961); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). There was no evidence that the Ballards had reserved the right under a lease to consent to a search of the premises. The people's contention that the Ballards had common control of the premises is not supported by the evidence.

The prosecutor further argues that the Ballards could give valid consent to the search because the tenants had abandoned the premises. Clearly, a finding of abandonment deprives a defendant of standing to challenge the seizure of the evidence. People v. Kirchoff, 74 Mich.App. 641, 645, 254 N.W.2d 793 (1977). The Kirchoff Court cited with approval the definition of abandonment in Friedman v. United States, 347 F.2d 697, 704 (CA 8, 1965):

"Abandonment is an ultimate fact or conclusion based generally upon a combination of act and intent. How did the person who was supposed to have abandoned the property act, that is, what did he do, and, second, what was his intention? These call for factual determinations. Friedman, supra, 704. (Emphasis supplied.)" 74 Mich.App. 641, 646, 254 N.W.2d 793.

In United States v. Robinson, 430 F.2d 1141, 1143 (CA 6, 1970), similar factually to the case at bar, the Court refused to infer defendant's intent to abandon his apartment from his mere absence from the premises:

"While the intent of one in possession of property often cannot be directly shown but must be inferred from his actions, abandonment will not be presumed. It must be clearly shown by the party asserting it. Coleman v. Maxwell, 387 F.2d 134, 135 (6th Cir. 1967), cert. denied, 393 U.S. 1007, 89 S.Ct. 492, 21 L.Ed.2d 472 (1968); [110 MICHAPP 440] Friedman v. United States, supra; Linscomb v. Goodyear Tire & Rubber Co., 199 F.2d 431, 435 (8th Cir. 1952)."

Although there was some evidence that the Ballards thought defendant and her husband may have moved, Mr. Ballard's testimony indicated that some of the tenants' belongings were still on the premises when he went to the trailer on January 20, 1974. Moreover, Mrs. Ballard testified that defendant phoned her the next day, before Mrs. Ballard found the body, stating that defendant had left part of the back rent at Mr. Ballard's place of business and that she wished to continue renting the trailer. Mrs. Ballard also testified that even though the Nashes were a few weeks behind in rental payments, she still considered them tenants as of the day of the search and had done nothing to terminate the tenancy. In view of these circumstances, the people have not satisfied their burden of proving that defendant intended to abandon the premises.

Finally, the prosecutor argues that Mrs....