People v. Taylor

• Citation: 253 Mich. App. 399,655 N.W.2d 291
• Decision Date: 09 January 2003
• Docket Number: Docket No. 237223.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Paul A. TAYLOR, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

655 N.W.2d 291

253 Mich. App. 399

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Paul A. TAYLOR, Defendant-Appellee.

Docket No. 237223.

Court of Appeals of Michigan.

Submitted June 5, 2002, at Detroit.

Decided October 8, 2002, at 9:00 a.m.

Released for Publication January 9, 2003.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training and Appeals, and Janice M. Joyce Bartee, for the people.

Milton R. Henry, Bloomfield Hills, for the defendant.

Before: KIRSTEN FRANK KELLY, P.J., and MURPHY and MURRAY, JJ.

KIRSTEN FRANK KELLY, P.J.

Defendant was charged with possession with intent to deliver less than fifty grams of cocaine, M.C.L. § 333.7401(2)(a)(iv), and possession of a firearm during the commission of a felony, M.C.L. § 750.227b. The trial court granted defendant's motion to suppress the evidence and dismissed the case against defendant. We reverse and remand.

I. Basic Facts and Procedural History

On February 7, 2001, Detroit Police Officer William Ashford was assigned to a plain clothes unit that investigated narcotics complaints. During his six years of employment with the precinct, he was dispatched to 17387 Ferguson in the city of Detroit approximately fifteen times to investigate such complaints. Ashford believed that drugs were being sold at the location, and he had recovered drugs from the house during the previous year. However, he never observed defendant at or in the house on any of these fifteen prior occasions.

Approximately two weeks before the incident resulting in defendant's prosecution, Ashford was again called to the Ferguson house to follow up on a narcotics complaint. At that time, Ashford believed, on the basis of the condition of the premises, that the house was unoccupied and vacant. There were no doors whatsoever on the house and only the windows on the north side of the house were boarded up. There was no running water or working gas in the house. Because the electrical meter box was disconnected and there was an orange 110 volt extension cord running to the house from a neighboring property, Ashford believed that the electricity servicing the house was illegally procured. There was raw sewage in the basement and a card table was the only furniture found in the house.

On February 7, 2001, Officer Ashford and his partner Charles Oates were dispatched to 17387 Ferguson to investigate still another narcotics complaint. Ashford testified that when he arrived at the home, he noticed that more windows were boarded up but no doors hung in the doorways. The officers got out of their vehicle and approached the south side of the house. While the officers traveled down the south side, they heard a cell phone ringing and proceeded to the rear entrance. Officer Ashford testified that there was no door at the rear entrance to the house, but at one time it had been boarded up. On this particular instance, Ashford testified that the board was moved away from the doorway, allowing the officers an unobstructed view into the basement.

The officers did not have a search warrant. Nevertheless, they proceeded through the rear entrance and up the stairs into the kitchen, where they observed defendant seated at a card table with packaging bags that Officer Ashford believed contained crack cocaine. A cell phone and a firearm were also on the card table along with the suspected crack cocaine. The officers placed defendant under arrest and seized the contraband. At the time of his arrest, defendant stated that he resided at 15893 Muirland. Later, at the precinct, he reaffirmed the address as his residence.

Defendant moved to have evidence of the narcotics suppressed on the ground that the search and seizure without a warrant violated both the United States Constitution and the Michigan Constitution, U.S. Const, Am IV; Const 1963, art 1, § 11, as an unreasonable search and seizure. In support of his position, defendant produced a lease for the premises at 17387 Ferguson. Defendant argued that because he had a leasehold interest in the house, he had an expectation of privacy that required a search warrant to invade. The prosecutor argued that defendant did not have a legitimate expectation of privacy in the property despite the lease because the property was obviously abandoned and, furthermore, defendant was not actually living at the house.

After hearing the evidence presented, the trial court suppressed the evidence seized, ruling:

[T]he officers believed in good faith that the place was vacant. It looks vacant. There are no doors, the windows are boarded up, and they have been getting complaint after complaint, which is what they get all of the time on these kinds of houses.

And the person who is just in there occupying it without a real legal right to be there has not [sic] expectation of privacy. And therefore, as long as it was actually vacant, the officers had every right to just walk right in there and look.

Now, in this instance, the defendant has presented a lease. He has an expectation of privacy, which would require that they get a search warrant. [T]here are a lot of things that people lease or own that they expect to have privacy in. They're not always houses. They are all kinds of things. But once they lease them, they have an expectation of privacy, and it requires a search warrant to go in and violate that interest.

So I am going to have to suppress the evidence....

The prosecution appeals as of right.

II. Standard of Review

In a suppression hearing, this Court reviews a trial court's factual findings for clear error and will affirm unless left with a definite and firm conviction that a mistake was made. People v. Davis, 250 Mich.App. 357, 362, 649 N.W.2d 94 (2002). However, we consider de novo the trial court's ultimate ruling on defendant's motion to suppress. Id.

III. Fourth Amendment Jurisprudence

The right against unreasonable searches and seizures is guaranteed by both the United States Constitution and the Michigan Constitution. US Const, Am IV; Const 1963, art 1, § 11; Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001); People v. Kazmierczak, 461 Mich. 411, 417, 605 N.W.2d 667 (2000). The Fourth Amendment "was a reaction to the evils of the use of the general warrant in England and the writs of assistance in the Colonies, and was intended to protect against invasions of `the sanctity of a man's home and the privacies of life,' [citation omitted], from searches under indiscriminate, general authority." Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 301, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). To jealously guard and protect these private interests from arbitrary governmental intrusions, the Fourth Amendment prohibited unreasonable searches and seizures and further required the use of a warrant that particularly describes "the place to be searched, and the persons or things to be seized," thus "interposing `a magistrate between the citizen and the police.'" Id. (citation omitted).

Not all searches, however, implicate the Fourth Amendment. To be sure, those seeking asylum in the Fourth Amendment must demonstrate its applicability. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); People v. Nash, 418 Mich. 196, 204, 341 N.W.2d 439 (1983). Because the Fourth Amendment protects people, as opposed to places or areas, the United States Supreme Court emphasized that a search for purposes of the Fourth Amendment occurs when the government intrudes on an individual's reasonable, or justifiable, expectation of privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Nash, supra at 205, 341 N.W.2d 439. Indeed, what an individual "`seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.'" People v. Clark, 133 Mich. App. 619, 625, 350 N.W.2d 754 (1983), quoting Katz, supra at 351-352.

IV. Reasonable Expectation of Privacy

The prosecution argues that the trial court's decision suppressing the evidence solely on the basis of defendant's leasehold interest in the property constituted error. We agree and find that a leasehold interest alone does not establish a legitimate expectation of privacy entitled to Fourth Amendment protection.

An expectation of privacy is legitimate only if the individual exhibited an actual, subjective expectation of privacy and that actual expectation is one that society recognizes as reasonable. Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000), on remand 213 F.3d 840 (C.A.5, 2000); People v. Perlos, 436 Mich. 305, 317, 462 N.W.2d 310 (1990). Whether the expectation exists, both subjectively and objectively, depends on the totality of the circumstances surrounding the intrusion. Id. at 317-318, 462 N.W.2d 310; People v. Smith, 420 Mich. 1, 27-28, 360 N.W.2d 841 (1984).

To determine whether defendant had a reasonable expectation of privacy in the Ferguson house sufficient to challenge the search under the Fourth Amendment, we must inquire whether defendant "took normal precautions to maintain his privacy—that is, precautions normally taken by those seeking privacy." Id. at 26, 360 N.W.2d 841, quoting with approval Rakas v. Illinois, 439 U.S. 128, 152-155, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (Powell, J. concurring). At best, the record reveals that defendant nailed up additional boards on the windows but otherwise neglected to erect doors in the doorways for purposes of excluding the general public. Indeed, a "normal precaution" to maintain privacy, at a bare minimum, certainly includes installing functional doors on the outside of the premises, replacing shattered windows, and erecting signs against trespass to discourage would-be intruders from entering. When the officers went to the vacant house to investigate the complaint, they did not observe any signs posted...