People v. Wagner

• Decision Date: 28 May 1982
• Docket Number: Docket No. 48811
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles David WAGNER, Defendant-Appellant. 114 Mich.App. 541, 320 N.W.2d 251
• Court: Court of Appeal of Michigan — District of US

Page 251

320 N.W.2d 251

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles David WAGNER, Defendant-Appellant.

Docket No. 48811.

114 Mich.App. 541, 320 N.W.2d 251

Court of Appeals of Michigan.

Submitted May 7, 1981.

Decided April 5, 1982.

Released for Publication May 28, 1982.

[114 MICHAPP 545] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Edward J. Grant, Pros. Atty., and John L. Wildeboer, Asst. Pros. Atty. for the People.

Terence R. Flanagan, Asst. State Appellate Defender, Detroit, for defendant-appellant.

[114 MICHAPP 546] Before KELLY, P. J., and BRONSON and DANIELS ^*, JJ.

KELLY, Presiding Judge.

Defendant Charles David Wagner appeals as of right his convictions for armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). The defendant's conviction was entered at the conclusion of a bench trial held before acting Jackson County Circuit Court Judge James M. Justin, and was based upon charges stemming from the April 9, 1979, robbery of the Kwick Shop Party Store in Pleasant Lake. The robbery was allegedly committed by the defendant and an accomplice, Steven Hartranft. In a separate proceeding, Hartranft pled guilty to identical charges. Defendant raises three issues.

I

The defendant first argues as reversible error the lower court's decision not to suppress from evidence two rifles, ammunition, and two ski masks used in the robbery, which were allegedly obtained during an illegal search without a warrant of a townhouse in which the defendant was residing. The disputed search was conducted with the consent of Hartranft, who was arrested with the defendant and questioned just outside of the residence. At the conclusion of the hearing on the suppression of the evidence the trial court concluded that the facts disclosed no search at all since Hartranft had led the investigating officers to the attic in which the evidence was hidden.

A search and seizure without a warrant is unreasonable[114 MICHAPP 547] per se and violates the Fourth and Fourteenth Amendments of the United States Constitution and Const.1963, art. 1, Sec. 11, unless shown to be within one of the exceptions to the rule. People v. Reed, 393 Mich. 342, 362, 224 N.W.2d 867 (1975), cert. den. 422 U.S. 1044, 1048, 95 S.Ct. 2660, 2665, 45 L.Ed.2d 696, 45 L.Ed.2d 701 (1975). The burden of proof is always on the state to show that an exception exists. Id., 362, 224 N.W.2d 867. Whether a valid consent was given is a question of fact, and this Court will not reverse a trial court's finding concerning consent unless it is clearly erroneous. People v. Whisnant, 103 Mich.App. 772, 776, 303 N.W.2d 887 (1981), lv. den. 411 Mich. 960 (1981).

When challenging a search and seizure, a defendant must demonstrate that his Fourth Amendment rights have been violated. Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978). An analysis of whether defendant's Fourth Amendment rights have been violated does not focus on arcane distinctions developed in property or tort law, but on whether defendant had a legitimate expectation of privacy in the place searched. Id., 143, 99 S.Ct. at 430. See also United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

The evidence presented at the preliminary examination demonstrated that defendant was living in the townhouse which was rented by his girlfriend. Although he did not pay rent or utilities, he did sometimes pay for groceries. Defendant had been a full-time resident of the townhouse for approximately four months. While defendant occasionally stayed at his parents' house, the evidence established that he had a legitimate expectation of [114 MICHAPP 548] privacy in the townhouse and could challenge the search.

On appeal, the prosecutor seeks to justify the search by claiming that Hartranft consented to the search. A search pursuant to a valid consent is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 222, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). A search is also valid if the permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to, the premises or things sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). The Court explained common authority:

"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 does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610 [, 81 S.Ct. 776, 5 L.Ed.2d 828] (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483 [84 S.Ct. 889, 11 L.Ed.2d 856] (1964) (night hotel clerk could not validly consent to search of customer's room) but 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 coinhabitants 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., 172, n. 7, 94 S.Ct. at 993, n. 7.

However, the Supreme Court expressly left open the question of whether a search without a warrant may be sustained merely upon a showing that the searching officers reasonably, albeit erroneously,[114 MICHAPP 549] believed that the consenting party had sufficient authority over the premises to permit the search. Id., 177, n. 14, 94 S.Ct. at 996 n. 14.

In People v. Adams, 53 N.Y.2d 1, 439 N.Y.S.2d 877, 422 N.E.2d 537 (1981), the Court of Appeals of New York addressed the issue of whether an officer's reasonable belief was sufficient to justify the search without a warrant. In that case, a police officer, after being shot at by the defendant, was approached by the defendant's girlfriend, who led the police to the defendant's apartment. She unlocked the apartment door and led the police to a closet in which a rifle and ammunition were discovered. Upon leaving the apartment, the girlfriend informed the police that she did not live in the apartment. The defendant tried to suppress the seized evidence but failed and appealed his conviction to the Court of Appeals. Initially, the Court rejected the state's argument that the girlfriend, a private individual, had conducted the search and therefore the Fourth Amendment had not been violated. Id. 439 N.Y.S.2d 879, 422 N.E.2d 539. Examining the issue of whether the police officer's reasonable belief that the woman could consent to the search could justify it, the Court wrote:

"We would agree that where the searching officers rely in good faith on the apparent capability of an individual to consent to a search and the circumstances reasonably indicate that that individual does, in fact, have the authority to consent, evidence obtained as the result of such a search should not be suppressed. * * * We emphasize that the police belief must be reasonable, based upon an objective view of the circumstances present and not upon the subjective good faith of the searching officers. Moreover, a warrantless search will not be justified merely upon a bald assertion by the consenting party that they possess the requisite authority. Nor may the police proceed without making some [114 MICHAPP 550] inquiry into the actual state of authority when they are faced with a situation which would cause a reasonable person to question the consenting party's power or control over the premises or property to be inspected. In such instances, bare reliance on the third party's authority to consent would not be reasonable and would, therefore, subject any such search to the strictures of the exclusionary rule." Id., 439 N.Y.S.2d 881, 422 N.E.2d 541.

The court concluded that the officer had a reasonable belief that the woman could consent to the search. Id., 439 N.Y.S.2d 882, 422 N.E.2d 542.

In this case, on April 10, 1979, the police arrived at the townhouse of Jacalyn Whiting, defendant's girlfriend, where they found the defendant and Hartranft. The two men were taken to different police cars and questioned about certain armed robberies. After Hartranft admitted participating in the robberies, he told the officer that the weapons used in the robberies were in the townhouse. Hartranft proceeded into the house followed by a police officer. He led the officer to a bedroom closet where the officer found the weapons hidden in a crawl space.

At the time of the search, the police did not know who rented the townhouse. When they asked Hartranft if he lived in the townhouse, Hartranft indicated only that defendant's girlfriend rented the townhouse. At the preliminary examination the officer in charge of the search admitted that it was not Hartranft's residence. The record is devoid of any evidence that supports a finding that the police could reasonably believe that Hartranft had common authority over or other sufficient relationship to the premises to justify a belief that he could consent to a search.

We likewise reject the trial court's reasoning that Hartranft and not the police searched the [114 MICHAPP 551] townhouse. While Hartranft did show the police where the weapons were located, he was in police custody at the time and had just confessed to armed robbery. Furthermore, the police officer actually searched the crawl space and seized the weapons. Where, as here, there has been affirmative participation by government officials in obtaining evidence, the police cannot avoid the constitutional limitations imposed upon them by claiming that the acts of a private party are also involved. Adams, supra,...