People v. Wagner, Docket No. 47836

CourtCourt of Appeal of Michigan (US)
Citation104 Mich.App. 169,304 N.W.2d 517
Docket NumberDocket No. 47836
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles David WAGNER, Defendant-Appellant.
Decision Date03 March 1981

Myron E. Sanderson, Jackson, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward Grant, Pros. Atty., John L. Wildeboer, Chief Appellate Atty., for plaintiff-appellee.

Before DANHOF, C. J., and BRONSON and CYNAR, JJ.

DANHOF, Chief Judge.

Defendant, Charles David Wagner, was convicted of armed robbery, contrary to M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm during the commission of a felony, contrary to M.C.L. § 750.227b; M.S.A. § 28.424(2), in a Jackson County Circuit Court bench trial. The convictions stemmed from a March 20, 1979, armed robbery of the "Party Pointe" store, allegedly committed by defendant and another man, Steve Hartranft. Hartranft pled guilty to armed robbery in a separate proceeding. Defendant was sentenced to consecutive prison terms of two years for the felony-firearm offense and 10 to 20 years for the armed robbery. He appeals as of right.

Defendant first argues that the trial judge was biased because, prior to the start of defendant's trial, he had accepted Hartranft's guilty plea and during that proceeding Hartranft stated that defendant had participated in the crime. There was no defense motion for disqualification; however, defendant now claims that the judge had a duty to disqualify himself sua sponte and should not have accepted defendant's waiver of the jury. The record in the present case does not show actual bias or prejudice on the part of the trial judge; therefore, we will not reverse defendant's conviction on this ground. People v. Elmore, 92 Mich.App. 678, 285 N.W.2d 417 (1979).

Next, defendant contends that his convictions for armed robbery and the felony-firearm offense are in violation of the double jeopardy clause of the Federal and state constitutions. This issue was resolved against defendant in Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979), and we are bound by that decision.

Defendant also seeks a remand for resentencing. He claims that the trial court erred by sentencing him to a prison term twice as long as that given to coparticipant Hartranft by the same judge. When defendant was sentenced, the judge indicated that the disparity in sentencing was based on the facts that Hartranft had cooperated with the prosecuting authorities in solving the crime and that defendant had carried the gun during the robbery and pointed it at the store clerk. The sentence was within the statutory limits. We find that defendant's sentence was proper based on People v. Dupuie, 52 Mich.App. 510, 217 N.W.2d 902 (1974), and People v. McLott, 70 Mich.App. 524, 245 N.W.2d 814 (1976).

Defendant next argues that two rifles, ammunition and clothing admitted as evidence at the trial should have been excluded as products of an illegal warrantless search and seizure. Prior to the commencement of trial, counsel for both sides agreed that evidence relating to the search and seizure question would be taken during the course of the trial rather than in a separate suppression hearing. At the close of the prosecution's proofs, the court ruled that the disputed items were admissible for two reasons; first, because defendant lacked standing to contest the search and seizure and second, because Hartranft had consented to the police action.

The evidence in question was seized from the attic of a townhouse rented by defendant's girlfriend, Jacalyn Ann Whiting. The police, acting on an anonymous tip, arrived at the house on the morning of April 10, 1979. They were investigating the March 20 party store robbery and a similar robbery which had occurred on the night of April 9. Defendant and Hartranft responded to a knock on the door and agreed to talk to the officers outside. They were taken to separate police cars and interviewed. Hartranft informed the police that there were weapons hidden in the house and volunteered to go in and bring them out. Two officers then accompanied Hartranft into the house. He led one of them upstairs to a bedroom closet which contained a trap door leading to the attic. He began to open the door, stating that the guns were just inside. At this point, the police officer reached into the attic and removed two rifles, ammunition and clothing. The parties then left the house with one of the officers carrying these items.

The police did not obtain a search warrant before entering the house. Hartranft had informed a police officer prior to the entry that he and his wife, who was inside at the time, had spent the night in the house. The police made no attempt to determine who actually lived there. At the trial, the tenant (Ms. Whiting) testified that she lived in the townhouse and that defendant had moved in with her and had been living there for an indefinite time. She stated that he kept his clothes there and spent his nights there. She also testified that Hartranft and his wife were overnight guests for one night and did not have permission to allow anyone else to enter the house without her knowledge.

We conclude that the trial judge clearly erred in ruling that defendant lacked standing to raise the search and seizure issue. The current requirement for standing in search and seizure cases is that the defendant have had a "legitimate expectation of privacy" in the area searched. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The defendant had such an expectation of privacy with respect to the townhouse, which was his home. We do not find his lack of a property interest based on tenancy or ownership to be a significant factor under the circumstances of this case. See, People v. Mason, 22 Mich.App. 595, 178 N.W.2d 181 (1970); People v. Mack, 100 Mich.App. 45, 298 N.W.2d 657 (1980).

The validity of Hartranft's consent to the police entry and seizure presents a more difficult question. Initially, we note that a warrantless search and seizure is unreasonable per se and violates the Fourth Amendment of the United States Constitution and art. 1, § 11 of the Michigan Constitution unless shown to fall under one of the exceptions to the warrant requirement. People v. Reed, 393 Mich. 342, 224 N.W.2d 867 (1975). One of these exceptions is consent, and in determining the validity of the consent search, the trial court must review the "totality of the circumstances". Its decision will not be reversed unless clearly erroneous. People v. Chism, 390 Mich. 104, 211 N.W.2d 193 (1973).

When the prosecution relies on consent to justify a search, it has the burden of proving that the person who gave the consent was authorized to do so and did so freely and voluntarily. People v. Taylor, 67 Mich.App. 76, 240 N.W.2d 273 (1976). In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court stated:

"(W)hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." 415 U.S. at 171, 94 S.Ct. 993, 39 L.Ed.2d 249.

In a footnote, the Court added the following:

"Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third- party consent * * * rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." Id., fn. 7.

This Court similarly has held that a third party with a right of possession or control of the premises equal to that of defendant can give valid consent to a police search of the premises for evidence to be used against the defendant. People v. Barbat, 49 Mich.App. 519, 212 N.W.2d 318 (1973), lv. den. 391 Mich. 795 (1974).

The evidence indicates that Hartranft himself had access to the townhouse and the attic where the evidence was hidden. Had he gone inside alone, without police involvement, and brought the evidence out, the Fourth Amendment would not apply. People v. Smith, 31 Mich.App. 366, 188 N.W.2d 16 (1971). We conclude, however, that the prosecution did not meet its burden of proving that Hartranft had the authority to consent to police entry of the townhouse. This was not a case where the consenting party had apparent authority to allow the entry, since Hartranft had informed the police that he had "spent the night" at the townhouse. This statement should have prompted further...

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