People v. Whisnant

• Decision Date: 17 February 1981
• Docket Number: Docket No. 52267
• Citation: 103 Mich.App. 772,303 N.W.2d 887
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Barbara Ann WHISNANT, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 887

303 N.W.2d 887

103 Mich.App. 772

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Barbara Ann WHISNANT, Defendant-Appellee.

Docket No. 52267.

Court of Appeals of Michigan.

Feb. 17, 1981.

Released for Publication April 15, 1981.

James D. Adams, Jackson, for defendant-appellee.

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

Before DANHOF, C. J., and CAVANAGH and MacKENZIE, JJ.

DANHOF, Chief Judge.

The people appeal by leave granted from a circuit court order of May 15, 1980, granting defendant's motion to suppress evidence. Defendant had been charged with bringing drugs or narcotics into a state prison in violation of M.C.L. § 800.281; M.S.A. § 28.1621. The motion was decided on the basis of the preliminary examination transcript.

On October 27, 1979, defendant went to Jackson Prison to visit an inmate. A female uniformed guard at the prison visiting center told her to leave her personal belongings in a locker, and, when defendant had done so, the guard asked her to step into a separate room. The guard then told defendant, "We shake down at random and, if you don't mind, I'm going to shake you down before you go in." Defendant made no response, and the guard conducted a pat-down search, finding a balloon tucked inside the waistband of defendant's jeans. The balloon was turned over to a state police officer who opened it and found valium and marijuana inside. These drugs were the subject of the suppression motion.

When asked how much time elapsed between her warning statement and the search, the guard replied, "Just a couple of seconds. There was no I didn't stand there waiting for her to answer one way or another. She didn't answer, so I assumed she didn't mind if I shook her down." The guard also testified that signs posted in the visitor center parking lot and above the information desk warned visitors that they were subject to search and would be prosecuted for bringing alcohol, drugs, or weapons into the prison. She indicated that defendant was searched pursuant to a random search policy and not because of any suspicious appearance.

The people opposed the suppression motion on the ground that defendant had given valid consent to the search. The trial court found consent was lacking under the following standard recited in People v. Kaigler, 368 Mich. 281, 294, 118 N.W.2d 406 (1962):

"It is elementary that the obtaining of a search warrant may be waived by an individual and he may give his consent to search and seizure; but such waiver or consent must be proved by clear and positive testimony and there must be no duress or coercion, actual or implied, and the prosecutor must show a consent that is unequivocal and specific, freely and intelligently given." (Emphasis in original; citations omitted.)

We apply the "clearly erroneous" standard of review to the trial judge's findings on the consent question. People v. Bunker, 22 Mich.App. 396, 177 N.W.2d 644 (1970), GCR 1963, 517.1.

The people first argue on appeal that the trial court applied the wrong standard. They claim that the Kaigler test, quoted above, was rendered obsolete when the Michigan Supreme Court, in People v. Lumpkin, 394 Mich. 456, 231 N.W.2d 637 (1975), and People v. Reed, 393 Mich. 342, 224 N.W.2d 867 (1975), cert. den. 422 U.S. 1044, 95 S.Ct. 2660, 45 L.Ed.2d 696 (1975), 422 U.S. 1048, 95 S.Ct. 2665, 45 L.Ed.2d 701 (1975), adopted the following standard for determination of consent to a search and seizure set forth by the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 248-249, 93 S.Ct. 2041, 2058-2059, 36 L.Ed.2d 854 (1973).

"(W)hen the subject of the search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent."

The people point in particular to the refusal of the Court in Bustamonte to apply a standard requiring the state to demonstrate "intentional relinquishment or abandonment of a known right or privilege" in order to show valid consent to a search. Id., 235-241, 93 S.Ct. 2051-2055.

The Kaigler and Bustamonte standards are consistent with each other in requiring that any consent given be voluntary; the latter merely elaborates by indicating that voluntariness should be determined based on all of the facts and circumstances and that the subject's lack of knowledge of the right to refuse consent does not mandate a conclusion that the consent was involuntary. We do not equate the "clear, unequivocal and specific" language in Kaigler with the intentional relinquishment or abandonment standard rejected in Bustamonte which applies to a waiver of constitutional guarantees protecting a defendant at trial. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The emphasis in application of the Kaigler test is on the words or actions of defendant which manifest his consent. This differs from a test focusing on waiver of a right to refuse consent, which would make knowledge of the right to refuse determinative.

The Michigan Supreme Court has not expressed any desire to overrule the Kaigler standard. In fact, Kaigler was cited in Reed, supra, and in People v. Chism, 390 Mich. 104, 211 N.W.2d 193 (1973), another case dealing with the issue of consent to a search. We reject the people's argument that the Kaigler test is no longer valid generally in search and seizure cases.

The people concede in their brief that the lower court may have reached the correct result under Kaigler but argue that a different standard should be applied because of the strong governmental interest in prison security and the lessened expectation of privacy on the part of prison visitors. They compare the instant case with a number of cases involving administrative searches of airline passengers or courthouse visitors. These cases do not stand for the rule that administrative searches are valid without consent. In United States v. Davis, 482 F.2d 893 (CA 9, 1973), the Court recognized the validity of airport-screening searches provided that the subject has the right to avoid the search by choosing not to board the aircraft. The Court indicated that where a person aware of the search procedures attempts to board an aircraft "consent" to the search would exist. See, United States v. Dalpiaz, 494 F.2d 374 (CA 6, 1974), McMorris v. Alioto, 567 F.2d 897 (CA 9, 1978). Thus, in United States v. Doran, 482 F.2d 929 (CA 9, 1973), the Court held that consent to a search of defendant's carry-on bag at an airport could be inferred because he proceeded after being put on notice that all passengers were subject to search by signs and public address announcements.

The implied-consent analysis suggested by the...