People v. Wilkens
| Decision Date | 10 November 2005 |
| Docket Number | Docket No. 254668. |
| Citation | 705 N.W.2d 728,267 Mich. App. 728 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lawrence WILKENS, Jr., Defendant-Appellant. |
| Court | Michigan Supreme Court |
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and Mark Kneisel, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Jacqueline J. McCann) and Robert L. Wilkens, Jr., in propria persona, for the defendant.
Before: COOPER, P.J. and BANDSTRA and KELLY, JJ.
Following a bench trial, defendant was convicted of two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(c) (); one count of producing child sexually abusive material, MCL 750.145c(2); and one count of eavesdropping through installation of a camera, MCL 750.539d.1 The trial court sentenced defendant as a third-offense habitual offender to 35 years and 5 months to 60 years' imprisonment for the CSC-I convictions, 20 to 40 years' imprisonment for producing child sexually abusive material, and 2 to 4 years' imprisonment for eavesdropping, to be served concurrently. Defendant appeals as of right his convictions and sentences. We affirm.
In March 2003, Detective Robert Peto and Sergeant Craig Annas of the Ypsilanti Police Department went to defendant's home to investigate criminal allegations unrelated to this case. The officers requested consent to search defendant's home for a gun or knife. Defendant provided written consent to search his home except for rooms rented to tenants. While looking in the shower, Detective Peto observed a homemade device with electrical switches and a motion detector. He thought it was suspicious because it is unusual to have electrical switches and a motion detector in a shower, especially when female tenants used the shower. Detective Peto also saw a "small, approximate quarter-inch hole drilled underneath where the sensor normal-sensor housing normally is." Detective Peto flashed his light on the hole and saw the reflection of glass, which appeared to him to be the lens of a microcamera. Because Detective Peto and Sergeant Annas knew that defendant's tenants used the shower, they arrested defendant for eavesdropping. They also halted their search of the home, and Detective Peto left to obtain a search warrant.
Upon execution of the search warrant, Detective Peto retrieved the camera behind the panel. He found that the wiring from the camera led to recording systems in both defendant's bedroom and the living room. A working remote control for the system was also found in defendant's bedroom. The officers seized video and camera equipment, including a camera from atop defendant's dresser, audio and visual recordings, and sexual toys and photographs.
Detective Peto testified that, during the initial consent search, he and Sergeant Annas found two videotape recordings between the mattresses on defendant's bed. They were not concerned about the videotape recordings at the time. They were not looking for videotapes, and defendant volunteered that they were his personal videotape recordings. When the officers executed the search warrant later that night, however, they seized several other videotapes. On one tape, entitled "Mixed Signals," defendant had recorded himself, a 14-year-old male, and a 16-year-old female engaging in sexual acts.
Defendant argues that all the evidence found and seized after Detective Peto used his flashlight to examine the small hole in the shower should have been suppressed because shining the light in that hole, when the object of the search was a gun or knife, exceeded the scope of the consented-to search. We disagree.
We review a trial court's findings of fact for clear error, giving deference to the trial court's resolution of factual issues. "A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made." We overstep our review function if we substitute our judgment for that of the trial court and make independent findings. However, we review de novo the trial court's ultimate decision on a motion to suppress. [People v. Frohriep, 247 Mich.App. 692, 702, 637 N.W.2d 562 (2001) (citations omitted).]
"Generally, if evidence is unconstitutionally seized, it must be excluded from trial." People v. Jordan, 187 Mich.App. 582, 588, 468 N.W.2d 294 (1991).
The right against unreasonable searches and seizures is guaranteed by both the state and federal constitutions. US Const, Am IV; Const 1963, art 1, § 11. The state constitutional standard is not higher than the federal standard. The constitutions do not forbid all searches and seizures, only unreasonable ones. Reasonableness depends upon the facts and circumstances of each case. The applicable test in determining the reasonableness of an intrusion is to balance the need to search, in the public interest, for evidence of criminal activity against invasion of the individual's privacy. [Id. at 586, 468 N.W.2d 294 (citations omitted).]
"The exclusionary rule applies not only to evidence improperly seized during a search without a warrant, but to evidence subsequently seized pursuant to a warrant obtained as a result of an initial illegal search." Id. at 588, 468 N.W.2d 294. "Among the recognized exceptions to the warrant requirement are exigent circumstance, consent, and plain view." Id. at 587, 468 N.W.2d 294. "The plain view doctrine allows police officers to seize, without a warrant, items in plain view if the officers are lawfully in a position from which they view the item, and if the item's incriminating character is immediately apparent." People v. Champion, 452 Mich. 92, 101, 549 N.W.2d 849 (1996).
The initial search of defendant's home took place under the consent exception. The scope of a consent search is limited by the object of that search. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). Defendant admits that he signed a written consent, which did not specify the object of the search and was not limited in any manner. However, it is undisputed that defendant orally consented to a search for a knife or a gun. Defendant only limited the search area to exclude the private rooms of his tenants. Detective Peto's search of the shower for a gun or knife was clearly within the scope of defendant's consent. Under the plain view doctrine, Detective Peto could have seized the device that he discovered in the shower without benefit of a warrant. Detective Peto was lawfully searching the shower, the device was in plain view, it was suspicious, and detective Peto knew that defendant's female tenants used the bathroom. Thus, the incriminating nature of the device was readily apparent even though the full nature of the device was unknown at that time. According to defendant's affidavit, Detective Peto removed screws from the unit and showed them to defendant before the search warrant was obtained. Even assuming that defendant's statements are true, because detective Peto could have seized the device given its obvious incriminating nature, viewing the device with a flashlight and removal of the screws was also permitted. No other evidence was seized until after the search warrant was obtained. Therefore, trial court did not err in admitting the evidence.
Defendant further argues that the trial court erred when it denied defendant's request for a polygraph examination, which would have assisted him in proving that the seizure of evidence was illegal and led to the suppression of the evidence against him. In addressing a trial court's denial of a request for a polygraph examination, our Supreme Court held:
In cases involving preserved, nonconstitutional error, a defendant must demonstrate, "`after an examination of the entire cause,'" that it "is more probable than not that the error was outcome determinative." The reviewing court must examine the nature of the error and assess its effect "`in light of the weight and strength of the untainted evidence.'" [People v. Phillips, 469 Mich. 390, 396-397, 666 N.W.2d 657 (2003) (citations omitted).]
Under the circumstances of this case, even if the trial court's denial was error, defendant cannot demonstrate that it is more probable than not that it was outcome determinative. MCL 776.21(5) provides:
A defendant who allegedly has committed a crime under sections 520b to 520e and 520g of Act No. 328 of the Public Acts of 1931 [MCL 750.520b to 750.520e and MCL 750.520g], shall be given a polygraph examination or lie detector test if the defendant requests it.
"The purpose of affording individuals accused of criminal sexual conduct a right to a polygraph exam is to provide a means by which accused individuals can demonstrate their innocence, thereby obviating the necessity of a trial." People v. Phillips, 251 Mich.App. 100, 107, 649 N.W.2d 407 (2002), aff'd 469 Mich. 390, 666 N.W.2d 657 (2003). In this case, however, defendant did not seek a polygraph examination to prove his innocence of the alleged crime. Rather, he sought a polygraph examination to support his argument that the evidence against him should have been suppressed because of an illegal search and seizure. As discussed above, even accepting defendant's affidavit as true, these facts would not have affected the outcome of the suppression issue. Therefore, defendant cannot establish that the trial court's denial of his request for a polygraph examination was outcome determinative.
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