People v. Toodle

• Decision Date: 20 February 1987
• Docket Number: Docket No. 82845
• Citation: 400 N.W.2d 670,155 Mich.App. 539
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony TOODLE, Defendant-Appellant. 155 Mich.App. 539, 400 N.W.2d 670
• Court: Court of Appeal of Michigan — District of US

Page 670

400 N.W.2d 670

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony TOODLE, Defendant-Appellant.

Docket No. 82845.

155 Mich.App. 539, 400 N.W.2d 670

Court of Appeals of Michigan.

Submitted April 2, 1986.

Decided Oct. 21, 1986.

Released For Publication Feb. 20, 1987.

[155 MICHAPP 540] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Jan J. Raven, Asst. Pros. Atty., for the people.

Gerald S. Surowiec, Farmington Hills, for defendant-appellant on appeal.

[155 MICHAPP 541] Before CYNAR, P.J., and WAHLS and BORRADAILE, ^* JJ.

BORRADAILE, Judge.

The principal question in this case is whether the basement of a two-story multiple-unit dwelling was a part of the first floor or the curtilage for purposes of a search and seizure under a search warrant.

The defendant was convicted by a Recorder's Court jury of receiving and concealing stolen property over $100 and was sentenced to from two to five years imprisonment. He appeals his conviction as of right.

The evidence at trial showed that a Detroit police officer was patrolling on foot after receiving information from his commander about car thefts in the area. He spotted a blue Corvette automobile in the driveway of premises on LaSalle. A few minutes later, he saw a man leave the premises, enter the Corvette, and drive it to a nearby alley. He next saw four other individuals, including defendant, leave the house, walk to the alley, and begin removing parts off the Corvette--tires, seats, roof top, and glass top. The officer saw defendant loosen the tires, and then witnessed all five individuals carry the car parts into the house from which they had exited. He saw defendant carry one of the tires.

The officer and his partner requested that the door to the premises be opened, were refused entry, and threatened to forcibly enter. They then requested a search warrant, which arrived shortly thereafter. Before it arrived, the five individuals, including defendant, walked out of the house and were immediately arrested. The search pursuant to the search warrant produced car seats, top, [155 MICHAPP 542] visor, wheels and tires from the basement of the home.

All five of the individuals identified by the officers were charged with three counts: (1) receiving and concealing stolen property over the value of $100, M.C.L. Sec. 750.535; M.S.A. Sec. 28.803, i.e., one blue Corvette; (2) breaking and entering a motor vehicle for the purpose of stealing goods of the value of not less than $5; and (3) larceny from a motor vehicle of the wheels, tires, seats, top and visor which were removed from the Corvette. Two of those charged pled guilty to receiving and concealing stolen property over $100, and a third pled guilty to attempted receiving and concealing stolen property over $100. Defendant and another chose to go to trial.

Before trial, defendant moved to suppress the evidence taken from the basement, alleging that the police officers exceeded the scope of the warrant when they searched the basement. The trial judge denied the motion, as he did a motion for reconsideration of the denial. The denial of these two motions is one of the issues raised in this appeal, the other issue being sufficiency of the evidence of a value over $100.

We affirm the trial court.

I

A defendant seeks suppression of evidence by a motion to suppress. People v. Kinnebrew, 75 Mich.App. 81, 254 N.W.2d 662 (1977). The trial judge may hold a separate evidentiary hearing to consider the motion. People v. Carroll, 396 Mich. 408, 240 N.W.2d 722 (1976); Kinnebrew, supra, 75 Mich.App. at p. 83, 254 N.W.2d 662. The trial judge is free to exercise his own judgment concerning the motion and to consider testimony in addition [155 MICHAPP 543] to that contained in the preliminary examination record. Kinnebrew, supra, p. 83, 254 N.W.2d 662.

A trial court's ruling on a motion to suppress evidence will not be reversed on appeal unless clearly erroneous. People v. Grimmett, 97 Mich.App. 212, 214, 293 N.W.2d 768 (1980), lv. den., 411 Mich. 853 (1981); People v. Mackey, 121 Mich.App. 748, 329 N.W.2d 476 (1982). If upon its review of the record this Court does not possess a definite and firm conviction that the trial court made a mistake, it must affirm. People v. Burrell, 417 Mich. 439, 449, 339 N.W.2d 403 (1983).

The Fourth Amendment of the United States Constitution provides in part:

"[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Similarly, the Michigan Constitution states in part:

"No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation." Const.1963, art. 1, Sec. 11.

In addition, M.C.L. Sec. 780.654; M.S.A. Sec. 28.1259(4) states in part:

"A search warrant shall be directed to the sheriff or any peace officer, commanding such officer to search the house, building or other location or place, where any property or other thing for which he is required to search is believed to be concealed. Each warrant shall designate and describe the house or building or other location or place to be searched and the property or thing to be seized."

[155 MICHAPP 544] The search warrant in this case described the place to be searched as:

"15903 LaSalle, a 2 story, 2 family dwelling, brick with white trim, 5th house south of Puritan on west side of street and entire curtilage. Down stairs only."

The items to be seized were described as: "T-Tops to a corvette, 2 blue bucket seats to a corvette, 4 tires with rims, unk make, taken from corvette and unk make radio/cassette player."

Defendant claims that the officers exceeded the scope of the search warrant because the warrant was limited to the "[d]own stairs only" and did not authorize a search of the basement. Defendant seems to concede that, had the search warrant not contained the term "[d]own stairs only," a search of the basement would have been proper, but argues that adding the additional words in the warrant limited the search to the main floor of the downstairs apartment only.

From the testimony, it appeared that one of the individuals involved in the auto-stripping lived downstairs and his sister lived in an upstairs apartment, with a common basement used by both the upstairs and downstairs tenants. The testimony showed that entry to the basement was from both the downstairs and upstairs flats. There was only one stairway leading to the basement, and both the downstairs and upstairs had access to use of that stairway. There were two doors leading to the stairway, one from the downstairs flat and one from the hallway from the upstairs flat. Access to these doors and to the basement opening which had no door, was from a landing which was separate from the downstairs flat. To reach the basement, the officer had to exit the downstairs flat, [155 MICHAPP 545] enter the landing, and descend the stairs. The officer who executed the warrant testified that he entered the stairs through the door which led from the downstairs flat. The tires of the Corvette and other parts were found strewn throughout the basement, and there was no evidence presented that the basement was separated into a portion for the upstairs and a portion for the downstairs tenant. The officer did admit that the officers also searched the upstairs flat and found the bucket seats to the Corvette. The prosecutor concedes that the seats taken from the upstairs flat were not properly seized.

This issue appears to be one of first impression in this state. The general rule, where a multi-unit dwelling is involved, is that the warrant must specify the particular sub-unit to be searched, unless the multi-unit character of the dwelling is not apparent and the police officers did not know and did not have reason to know of its multi-unit character. People v. Franks, 54 Mich.App. 729, 221 N.W.2d 441 (1974); Kinnebrew, supra. See cases in Anno: Search warrant: sufficiency of description of apartment or room to be searched in multiple-occupancy structure, 11 ALR3d 1330. The search warrant in this case clearly complied with the general rule, since the magistrate inserted the words "[d]own stairs only" on the warrant.

Though Michigan case law indicates that a warrant for one address does not authorize search for another address, People v. Musk, 221 Mich. 578, 192 N.W. 485 (1922), in this case the evidence showed that the upstairs flat was 15903 LaSalle and the address of the downstairs was 15901 LaSalle. The warrant was for "15903 LaSalle ... [d]own stairs only," which is ambiguous, but the defendant seems not to have raised the issue, and it appears any ambiguity was [155 MICHAPP 546] cleared up when the magistrate put the words "[d]own stairs only" on the warrant. ¹

The trial judge in this case determined that the basement was a part of the downstairs flat, stating:

"Every flat I've ever been in, each apartment has access to the basement. So in this case the downstairs flat, the basement would be part of the downstairs apartment unit, and I find that the language in the search warrant allowed the police to go in the downstairs unit, so I believe the basement would be included in that, within that phrase allotted in the search warrant."

It appears the trial judge took judicial notice of the configuration of the premises and the conclusions to be drawn. MRE 201 allows judicial notice of adjudicative facts and states:

[155 MICHAPP 547] "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." MRE 201(b).

MRE 201(b) would seem to...