People v. Nash, Docket No. 68280

CourtSupreme Court of Michigan
Citation341 N.W.2d 439,418 Mich. 196
Docket NumberDocket No. 68280,No. 9,9
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Carron Lea NASH, Defendant-Appellee. Calendar
Decision Date19 December 1983

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Douglas A. Jacobson, Pros. Atty., Leonard J. Malinowski, Asst. Atty. Gen., Lansing, for plaintiff-appellant.

State Appellate Defender Office by Stuart B. Lev, Asst. Defender, Detroit, for defendant-appellee.

BRICKLEY, Justice.

Defendant was convicted of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, for the shooting death of her husband, Douglas Leon Nash, and was sentenced to life imprisonment. The Court of Appeals reversed defendant's conviction and remanded the case for a new trial. People v. Nash, 110 Mich.App. 428, 313 N.W.2d 307 (1981). We granted the prosecutor's application for leave to appeal, 414 Mich. 869 (1982), to consider whether the Court of Appeals erred in holding that evidence of the body of the victim should have been suppressed at trial because it was discovered as a result of an unconstitutional search of the defendant's property. We also consider the holding of the Court of Appeals that while evidence against defendant obtained by the execution of a search warrant on defendant's attorney may be admitted at trial, the fact that the evidence was seized from the attorney cannot be made known to the jury. We would reverse the decision of the Court of Appeals on both holdings.


Prior to trial, defendant moved to suppress all evidence of the victim's body and the bullets recovered from it. By stipulation, the motion was submitted to the trial court on the basis of the facts brought out at the preliminary examination. 1 After receiving an unfavorable decision on the motion defendant sought a rehearing, and an evidentiary hearing was held. The relevant evidence from the preliminary examination and from the evidentiary hearing showed that defendant and the victim lived in a house trailer rented from Margaret and Paul Ballard. Defendant was a few weeks behind in her rent as of the middle of January 1974, and had not recently been seen at the trailer. Neighbors had seen someone moving boxes out of the trailer.

On January 20, 1974, the Ballards received an inquiry about renting the trailer. Mr. Ballard went to the trailer with the prospective tenants. He found the trailer to be partially vacated and in a somewhat untidy condition, with wadded-up newspapers on the floor and a slight odor in the air. A large box, exuding a strong odor, was found extending from a closet. A mop bucket, also odorous, was in the bathroom. Mr. Ballard, with the help of his son, pushed the box out of the trailer and left it next to the door.

Upon returning home, Mr. Ballard told Mrs. Ballard about the box. He asked her to go to the trailer to check the box, as well as to clean up the red marks left by it in the trailer. Mrs. Ballard thought it possible that the box contained a body, but Mr. Ballard thought that it contained meat scraps for defendant's dogs.

On January 21, 1974, Mrs. Ballard went to the trailer. Defendant's dogs were not there. She found a 4' X 17"' X 17"' carboard box just outside the trailer's northwest door. The top of the box was slightly open and unsealed. She opened the box and saw what she thought might be the body of the victim.

Mrs. Ballard went directly to the sheriff's office and reported that "she thought maybe that there was a dead body" or "it could be bones or just cow hides" in the box on the property she was renting to defendant and Douglas Nash.

Mrs. Ballard, the sheriff, and others went out to the trailer. No search warrant was procured. After being unable to see anything through a hole in an upper corner of the box, the sheriff opened it, revealing the badly decomposed body of Douglas Nash. Subsequent examination disclosed that the victim died as a result of two gunshot wounds, one from the front and one from the back, but both through the heart. Also, on January 21, 1974, defendant telephoned the Ballards to tell them she wished to continue renting the trailer and had left a rent check at Mr. Ballard's place of work.

The trial court made the following ruling:

"And the court is of the opinion that when this matter was reported to the sheriff by Mrs. Ballard or to his office and then to him, that the box being outside in full view and with the circumstances [that were] related to the sheriff by Mrs. Ballard, that the so-called search of the box was in full view, was within the search that the law allows under the circumstances."

Although we agree with the trial court's decision to deny the motion to suppress, we analyze the issue differently.

A search without a warrant, subject to certain exceptions not applicable here, is unreasonable per se under the Fourth Amendment to the United States Constitution. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Of course, not all government intrusions constitute searches within the meaning of the Fourth Amendment. One seeking the benefit of the Fourth Amendment must first carry the burden of showing that the Fourth Amendment is applicable. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the United States Supreme Court articulated the scope of Fourth Amendment protections. Stressing that the amendment protects persons and not places or areas, the Court found Fourth Amendment interests to be implicated when the governmental activity infringed on a justifiable, or reasonable, expectation of privacy. Katz, supra, p. 353, 88 S.Ct. p. 512 (opinion of Stewart, J.), p. 361, 88 S.Ct. p. 516 (opinion of Harlan, J.). As expressed in later cases, the issue to be decided is whether the defendant had a "legitimate expectation of privacy in the invaded place", Rakas v Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). An expectation of privacy is legitimate if the individual has an actual, subjective expectation of privacy and that actual expectation is one that society recognizes as reasonable. United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). Whether an expectation of privacy exists in both the subjective and the objective sense is determined by scrutinizing the totality of circumstances surrounding the alleged intrusion. United States v. Hawkins, 681 F.2d 1343 (CA 11, 1982). See Rawlings, supra; Rakas, supra (opinion of Powell, J., concurring).

In the present case, it is by no means clear that defendant had retained any property interest in the rented premises. The United States Supreme Court has rejected the idea that " 'arcane distinctions developed in property * * * law' " are dispositive of Fourth Amendment rights. Rakas, supra, 439 U.S. pp. 149-150, fn. 17, 99 S.Ct. pp. 433-434, fn. 17. Yet property interests remain relevant. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Without an interest, property or otherwise, in the premises, defendant would certainly have no right to complain of a search. We need not decide, however, whether defendant had a reasonable expectation of privacy inside the trailer. 2 We find that in the circumstances in which the search actually took place defendant had no reasonable or legitimate expectation of privacy.

The box containing the victim had been moved outside of the trailer by Mr. Ballard. This action by a private person in no way involves the Fourth Amendment, which is limited to protecting persons from governmental intrusions. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The location of the box after it was moved by Mr. Ballard was next to a trailer door. In the absence of special circumstances, this is an area normally open to the public. See United States v. Kramer, 711 F.2d 789 (CA 7, 1983); United States v. Magana, 512 F.2d 1169 (CA 9, 1975); United States v. Pruitt, 464 F.2d 494 (CA 9, 1972). Defendant has offered no evidence that visitors to the trailer were somehow barred from approaching the trailer door. The box was made of cardboard, certainly not a substance one would reasonably expect to keep out the curious. Perhaps even more importantly, the box was unsealed. Compare the reasonable expectation of privacy analyses in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (reasonable expectation of privacy in a double-locked footlocker), and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (reasonable expectation of privacy in unlocked, but closed, suitcase), with United States v. Neumann, 585 F.2d 355 (CA 8, 1978) (no reasonable expectation of privacy in an unsealed cardboard box), and United States v. Mackey, 626 F.2d 684 (CA 9, 1980) (no reasonable expectation of privacy in a paper bag).

One final factor which must be considered, although we ascribe to it little weight, is that the macabre contents of the box had already become known to Mrs. Ballard at the time of the alleged search. In Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), six members of the United States Supreme Court, although reaching different conclusions, were of the opinion that an initial intrusion by a civilian into an area lessened any reasonable expectation of privacy. In the present case, while defendant may well have entertained a subjective expectation of privacy in the box as it stood in the trailer, the facts underlying that expectation had changed. The box had been moved out of the trailer and its contents viewed. Although a search by a civilian may not be able to defeat an otherwise reasonable expectation of privacy in the objective sense, it must somewhat lessen it. See, also Illinois v. Andreas, 463 U.S. 765, 103 S.Ct....

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