People v. Smith

• Decision Date: 28 December 1984
• Docket Number: M,Docket No. 69449,No. 12,12
• Citation: 360 N.W.2d 841,420 Mich. 1
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lee Brady SMITH, Defendant-Appellee. ay Term 1983. Calendar420 Mich. 1, 360 N.W.2d 841
• Court: Michigan Supreme Court

Page 841

360 N.W.2d 841

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

Docket No. 69449, May Term 1983.

Calendar No. 12.

420 Mich. 1, 360 N.W.2d 841

Supreme Court of Michigan.

Argued May 5, 1983.

Decided Dec. 28, 1984.

William L. Cahalan, Pros. Atty., County of Wayne, Edward Reilly Wilson, Deputy Chief Appellate Asst. Pros. Atty., Civ. and Appeals, Timothy A. Baughman, Detroit, for plaintiff-appellant.

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

WILLIAMS, Chief Justice.

The issue in this case is what should be the proper test for standing to seek suppression of illegally seized evidence where the requirements for both standing and the offense charged involve proof of a possessory interest. This issue relates to the police seizure of a stolen trailer from the open access parking lot of an abandoned restaurant. As to whether the defendant in this case has standing to challenge the search and seizure of that trailer, due to the inadequacy of the record we think it appropriate to remand this case to the trial court for a new suppression hearing. In addition, since the determination of the standing issue may make it unnecessary to resolve a second issue of whether the evidence resulting from the seizure should have been excluded, we will not reach this latter issue.

Defendant claimed "automatic standing", citing People v. Godwin, 94 Mich.App. 286, 288 N.W.2d 354 (1979), and arguing that because Const.1963, art. 1, Sec. 11 varies slightly from U.S. Const., Am. IV, it requires a more liberal interpretation. ¹ Godwin relied on Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Plaintiff contended that the test of "reasonable expectation of privacy" set forth in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), which overruled the "automatic standing" test of Jones, applies.

For this Court, this issue under art. 1, Sec. 11 of the Michigan Constitution is for all intents and purposes an issue of first impression since Jones and Salvucci. For the United States Supreme Court, this issue under Am IV was settled in Salvucci. Under Salvucci, pp. 92, 95, 100 S.Ct. pp. 2553, 2554, the test for standing is a "reasonable expectation of privacy". Furthermore, Salvucci, p. 85, 100 S.Ct. p. 2554, expressly overruled the Jones test of "automatic standing".

This Court's first inquiry must be whether there are any policy considerations which commend the "automatic standing" test over the "reasonable expectation of privacy" test, and whether anything in the differences in language between art. 1, Sec. 11 and Am. IV requires us to choose one test over the other. Upon consideration, we conclude that there are no policy considerations which incline us to adopt the "automatic standing" test and that there is nothing in the differences in language between art. 1, Sec. 11 and Am. IV that requires or suggests the adoption of the "automatic standing" test. ² We adopt a "reasonable expectation of privacy" test consonant with our search and seizure precedents. We reverse the judgment of the Court of Appeals and overrule Godwin.

I. FACTS

Defendant Smith was charged with receiving and concealing stolen property of a value over $100, to wit: a 45-foot van-type trailer. M.C.L. Sec. 750.535; M.S.A. Sec. 28.803. Following the preliminary examination, defendant, inter alia, filed a motion to suppress the trailer as evidence against him. Thereafter, an evidentiary hearing was conducted at which only one witness testified. That witness, Norman Anderson, was an investigator from the Wayne County Prosecutor's Office.

In October of 1979, Mr. Anderson was provided with information concerning the theft of certain automobile transmissions. He learned that the stolen transmissions had been sold to a company in Dallas, Texas. In November of 1979, Mr. Anderson went to Dallas to investigate this report. He interviewed several employees of the recipient company. He was told that two tractor-trailer rigs had delivered the transmissions. One of the tractors was a Peterbilt and the other was a Kenworth. The trailers were silver and appeared to be new. In addition, Mr. Anderson received four checks that had been given to the drivers of the vehicles in payment for the transmissions. One of the checks had been made payable to a Mr. Carr, and the other three were made payable to defendant Smith. The checks were indorsed by the parties and were marked with their operator license numbers. All of the checks had been cashed. These facts were the basis of a different case against Messrs. Carr and Smith.

Several days after Mr. Anderson returned to Detroit, an attempt was made to locate Mr. Carr and defendant Smith. On the morning of November 14, 1979, while in the company of FBI agent Tom Love and State Police officer Lyle Schroeder, Mr. Anderson went to Mr. Carr's residence on Gainesboro, four and one-half blocks from Avon and Grand River in Detroit. They knocked on Mr. Carr's door, but no one answered. The officers drove away, and at the intersection of Avon and Grand River they saw two tractor-trailer rigs parked in an abandoned restaurant lot. There was a fence around the lot, with two large openings in it for access. Upon closer inspection of the vehicles, the officers observed that one of the tractors was a Kenworth and the other was a Peterbilt. Inside the window of the Peterbilt, one of the officers saw a nameplate bearing defendant Smith's name. The trailers looked relatively new. The Kenworth tractor was still attached to one of the trailers, and the Peterbilt was parked immediately in front of the second trailer. The first trailer bore vehicle identification numbers (VIN) indicating that it was a Fruehauf. The other trailer was unmarked except for two mud flaps on which were printed the name Fruehauf.

The officers ran a check on the license plates of the vehicles. They learned that the license plates on both trailers were registered to defendant Smith. In addition, although the plates had different numbers on them, they had both been assigned to the same Fruehauf trailer. The officers located the VIN on the first trailer and discovered that it was the trailer to which both license plates had been assigned. They were unable to find the VIN on the second trailer. They found the spot where the VIN plate is normally located, but the plate had been removed. The rivet marks were still apparent. The trailer also looked as though it had recently been painted.

Mr. Anderson left the scene and returned to the police station. The State Police officer remained at the scene. In an effort to find out where the hidden VIN on the second trailer might be, Mr. Anderson attempted to contact someone in the commercial theft department. Mr. Anderson was unsuccessful in his attempt and thus decided to call Fruehauf. An employee of the company told him where the hidden VIN was located on Fruehauf trailers. Mr. Anderson returned to the parking lot. He had been gone for approximately 1 to 1 1/2 hours.

When Mr. Anderson arrived at the lot, he crawled under the second trailer to look for the hidden VIN, but he was unable to find it. Apparently, different manufacturers put the hidden VIN in different locations. The officers then compared the physical appearance of the first trailer, which they knew to be a Fruehauf, with that of the second trailer. The two trailers were substantially dissimilar. The officers concluded that the second trailer was not in fact a Fruehauf. The officers then called a tow truck to have the trailer removed. About 1 to 1 1/2 hours later, the two truck arrived. The trailer was towed to Cover Service in Romulus. One of the officers called the National Auto Theft Bureau to have the trailer identified. Personnel from the bureau arrived the next day, located the hidden VIN, and confirmed that the trailer was stolen.

Mr. Anderson testified that approximately 3 to 3 1/2 hours elapsed from the time he first saw the trailer until the time the trailer was towed away. Mr. Anderson further stated that after they first discovered the trailer, they discussed the possibility of obtaining a search warrant, but decided against it. No search warrant of any kind was ever obtained.

Upon the basis of the above information, the trial court granted defendant's motion to suppress, ruling that the officers should have obtained a warrant before they seized the trailer. On appeal, the prosecutor contended that defendant lacked "standing" to challenge the propriety of the seizure. ³ The Court of Appeals rejected this argument, holding that defendant had "automatic standing" to challenge the seizure under art. 1, Sec. 11 of the Michigan Constitution, and that the police were obliged to obtain a warrant before they seized the trailer. People v. Smith, 118 Mich.App. 366, 325 N.W.2d 429 (1982).

II. DEFENDANT'S CONTENTION AS TO STANDING

To begin with, the issue here is not whether the government had the right to seize the trailer. The issue is whether the defendant had "standing" to object to the introduction of evidence of the results of that seizure.

"Standing has been called one of 'the most amorphous [concepts] in the entire domain of public law.' " Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). "Standing" relates to civil ⁴ as well as criminal matters. ⁵ The basis for "standing" to challenge a search or seizure may be possession, ⁶ physical location, ⁷ or right to privacy, ⁸ among others.

Defendant contends there is another and different basis for standing from any of the above, i.e., "automatic standing", "where the defendant is charged with an offense that includes as an [essential element of the] offense charged the possession of seized evidence at the time of the contested search and seizure" [Appellee's Brief, p. 3]. Defendant relies on the Michigan Court of Appeals case of People v. Godwin, supra. ⁹ Godwin relied on...