People v. Smith

• Decision Date: 09 November 1982
• Docket Number: Docket No. 51035
• Citation: 325 N.W.2d 429,118 Mich.App. 366
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lee Brady SMITH, Defendant-Appellee. 118 Mich.App. 366, 325 N.W.2d 429
• Court: Court of Appeal of Michigan — District of US

Page 429

325 N.W.2d 429

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lee Brady SMITH, Defendant-Appellee.

Docket No. 51035.

118 Mich.App. 366, 325 N.W.2d 429

Court of Appeals of Michigan.

Submitted Dec. 9, 1981.

Decided July 21, 1982.

Released for Publication Nov. 9, 1982.

[118 MICHAPP 368] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Timothy A. Baughman, Asst. Pros. Atty., for the People.

Warren D. Bracy, Detroit, for defendant-appellee.

Before RILEY, P.J., and MAHER and CYNAR, JJ.

RILEY, Presiding Judge.

Defendant was charged with receiving stolen property. M.C.L. Sec. 750.535; M.S.A. Sec. 28.803. At an evidentiary hearing, the trial court granted defendant's motion to suppress the evidence discovered by the police as a result of the seizure of a trailer displaying license plates registered[118 MICHAPP 369] to the defendant. The people appeal as of right.

On November 14, 1979, a Federal Bureau of Investigation (FBI) agent, a Michigan State police officer (trooper) and a Wayne County prosecutor investigator (investigator) went to 18883 Gainsborough, the residence of an associate of the defendant. The purpose of the visit was to investigate a shipment of stolen vehicle transmissions which had been delivered to Dallas, Texas. The investigator had received information that the transmissions had been delivered by two trucks; a black Kenworth and a red and white Peterbilt, both of which were pulling new, clean, silver-in-color trailers. Payment for the transmissions was by four checks made payable to defendant and his associate.

After the officers unsuccessfully attempted to locate defendant and his associate at the Gainsborough address, they drove away. Upon reaching the intersection of Avon and Grand River Avenue, approximately two blocks from the Gainsborough address, two tractors and trailers were spotted which fit the description of those used to deliver the stolen items. The Kenworth tractor was attached to one of the trailers (hereinafter, trailer # 2). The Peterbilt tractor was parked directly in front of, but not attached to, the other trailer (hereinafter, trailer # 1). While trailer # 2 was in fact owned by defendant, trailer # 1 was later found to be stolen and the charge against defendant involves only trailer # 1.

A radio check was made as to the registration of the license plate on trailer # 1. The plate was registered in defendant's name to a 1978 Freuhauf trailer bearing the same vehicle registration number (VIN) attached to trailer # 2. The officers [118 MICHAPP 370] observed that the VIN plate which should have been located on the left front of trailer # 1 had been removed.

The investigator went to a police station in an unsuccessful attempt to contact someone from the commercial auto theft section who would know the location of the hidden or secret VIN. He then called the Fruehauf manufacturer to determine the number's location. Within an hour or an hour and one-half, he returned to the parking lot where the state trooper had remained. They were unable to locate the VIN in the location described by the alleged manufacturer. Comparing the physical appearance of trailer # 2, a confirmed Fruehauf trailer, and trailer # 1, the investigator concluded that trailer # 1 was not a Fruehauf trailer. It was later determined that trailer # 1 was manufactured by Trailmobile and the hidden VIN was in a different location than Fruehauf's. A tow truck was called and, upon its arrival within one and one-half hours, trailer # 1 was removed to the police pound. Its true identity was established and it was determined that trailer # 1 had been stolen.

The prosecutor appeals after the trial court granted defendant's motion to suppress this evidence. The people's first argument on appeal is that the defendant does not have a reasonable expectation of privacy in the stolen trailer such that he has standing to object to its seizure.

As a general rule, this Court will not review an issue raised for the first time on appeal. See People v. Obadele, 58 Mich.App. 139, 142, fn 2, 227 N.W.2d 258, 259 (1975). However, this rule is not inflexible and, where consideration of a claim not previously raised is necessary to a proper determination of the case, the issue will be considered. People v. Harris, 95 Mich.App. 507, 509, 291 N.W.2d 97 [118 MICHAPP 371] (1980). In the present case, the prosecutor raises, for the first time, the issue regarding defendant's standing to object to the seizure of the trailer.

Standing is legalese to denote the requirement that a party in a lawsuit have a sufficient personal interest in the outcome so that the case is fairly, fully and vigorously litigated. "[W]hen standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue". Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Standing to object to the introduction of the evidence is based on the Fourth Amendment of the United States Constitution and the Mich. Const.1963, art. 1, Sec. 11. The constitutional rights involved may only be asserted by the appropriate party and not vicariously. Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969). Therefore, the defendant only has standing to contest the constitutionality of the seizure of the trailer if his rights were infringed upon.

There are three major Federal cases which must be examined when a criminal defendant's standing to object to the introduction of evidence is in issue: Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), and United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Jones laid down two separate bases upon which to predicate standing. That Court wrote "that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress when its fruits are proposed to be used against him". 362 U.S. at 267, 80 S.Ct. at 734. The second basis created in Jones became known as "automatic standing". This phrase embodies the [118 MICHAPP 372] rule that a defendant has standing to contest a search or seizure whenever the offense for which he is charged has as an essential element possession of the seized evidence at the time of the challenged search and seizure.

The Jones rule granting standing for anyone legitimately on the premises at the time of the search and seizure was struck down in Rakas, supra, 439 U.S. at 142, 99 S.Ct. at 429-30. This half of the Jones case was replaced with a standard which considers whether the party had a legitimate expectation of privacy in the searched or seized item. Rakas, supra, 143, 99 S.Ct. at 430.

The automatic standing rule of Jones was reevaluated by the United States Supreme Court in Salvucci. Justice Rehnquist wrote for the majority stating: "Today we hold that defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated. The automatic standing rule of Jones v. United States, supra, is therefore overruled." Salvucci, supra, 448 U.S. at 85, 100 S.Ct. at 2549. The Salvucci majority requires a factual finding that the party opposing the search have a legitimate expectation of privacy in the area searched. Id., 92, 100 S.Ct. at 2553.

In the case at bar, the prosecutor argues that the defendant does not have standing to object to the introduction of the evidence, as he did not have a legitimate expectation of privacy in the stolen trailer while it was parked on the lot. Defendant notes that Rakas and Salvucci are not binding on Michigan courts and, therefore, he has standing because he is charged with a crime where possession of the goods is an essential element. This Court is faced for the first time with deciding [118 MICHAPP 373] whether or not the automatic standing rule is still viable in Michigan after Salvucci. ¹

Other states which have considered this issue have split in their adoption of Salvucci. In State v. Hutchinson, 404 So.2d 361 (Fla.App.1981) the Court reviewed the history of search-and-seizure law in that state and concluded that Florida courts must follow the principles announced in Salvucci. However, the Supreme Court of New Hampshire, in State v. Settle, N.H., 447 A.2d 1284 (1982), held that the automatic standing rule was still applicable in New Hampshire after Salvucci.

New Hampshire has decided to give defendants greater protection from unreasonable searches and seizures than the United States Supreme Court. As was noted in People v. Nabers, 103 Mich.App. 354, 375, 303 N.W.2d 205 (1981):

"The Michigan Supreme Court has traditionally afforded defendants greater protection against unreasonable searches and seizures than the United States Supreme Court. See, People v. Beavers, 393 Mich. 554; 227 NW2d 511 (1975), cert den, 423 US 878; 96 S Ct 152; 46 L Ed 2d 111 (1975) (imposing higher Michigan standard relative to electronic surveillance); People v Margelis, 217 Mich 423; 186 NW 488 (1922) (applying the exclusionary rule prior to the time it was mandated by Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 [1961] )."

Const.1963, art. 1, Sec. 11, provides in part: "The person, houses, papers and possessions of every person shall be free from unreasonable searches [118 MICHAPP 374] and seizures." (Emphasis added.) The Fourth Amendment of the United States Constitution varies in that it provides in part that "the people be secure in their persons, houses, papers and effects" from unreasonable searches and seizures. The term "possession", rather than "effects", may be a basis for providing the state citizen greater protection under Const.1963, art. 1, Sec. 11, than under the ...