People v. Zahn

• Decision Date: 12 March 1999
• Docket Number: Docket No. 209176
• Citation: 594 N.W.2d 120,234 Mich.App. 438
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Scott Louis ZAHN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 120

594 N.W.2d 120

234 Mich.App. 438

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Scott Louis ZAHN, Defendant-Appellee.

Docket No. 209176.

Court of Appeals of Michigan.

Submitted Oct. 12, 1998, at Lansing.

Decided March 12, 1999, at 9:05 a.m.

Released for Publication June 10, 1999.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, Donald A. Kuebler, Chief, Appeals, Research, and Training, and Timothy J. Cassady, Assistant Prosecuting Attorney, for the people.

Jerome F. O'Rourke, Flint, for the defendant.

Before: TALBOT, P.J., and McDONALD and NEFF, JJ.

TALBOT, P.J.

The prosecution appeals as of right from a circuit court order granting defendant's motion to suppress certain evidence and to dismiss the charge of delivery of 225 grams or more but less than 650 grams of a mixture containing cocaine, M.C.L. § 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii). We reverse.

At the hearing regarding defendant's motion to suppress, the parties stipulated to allow the circuit court to decide the motion solely on the basis of the testimony taken at the preliminary examination. ¹ At the preliminary examination, James Hall testified that he had been a friend of defendant's for about thirty years. Acting in cooperation with the police, Hall telephoned defendant in Florida and arranged to buy some cocaine. Hall and defendant agreed that Hall would send a partial payment of $3,000 to Carolyn Kelly, in Florida. Upon receipt of the money, defendant would send the cocaine to Tim Reiter's residence at 2220 East Court Street, Apartment 2, in the city of Flint. The cocaine was to be addressed to a "Mrs. Hoelzer or Hoelzen." Upon satisfactory delivery, Hall was to send the $6,000 balance to the Florida address. Hall obtained $3,000 from the police and sent it to Kelly in Florida. A few days later, defendant telephoned Hall and informed him that the cocaine had been sent.

Flint Police Sergeant Alan McLeod testified that he intercepted and took into his possession a Federal Express package delivered to the residence at 2220 East Court Street in the city of Flint. The package was addressed to "Jane Hoelzer." The sender was listed as "John Hoelzer" of 400 Park Street, Hollywood, Florida. McLeod opened the package to discover a bubble cushion envelope containing a brown paper bag wrapped tightly around a Tupperware container that was taped shut. Inside the Tupperware container was a Ziplock bag containing a crystalline material that was later revealed to be 275 grams of a substance containing cocaine.

Working in conjunction with police in Florida, police from the city of Flint staged a delivery of the remaining balance of money "owed" to defendant for the cocaine. A Florida police officer, posing as a Federal Express delivery person, delivered $6,000 in a Federal Express envelope to a woman at Kelly's Florida apartment. Shortly thereafter, McLeod went to the apartment and spoke to the woman. She identified herself as Kelly and authorized the officers to enter and search the apartment. Four or five police officers entered the apartment while six more officers waited outside. It was apparent that the officers were armed. In the course of their search, the police recovered the Federal Express envelope containing the cash. Shortly thereafter, defendant arrived at the apartment.

McLeod introduced himself and told defendant that he was involved in an investigation regarding some money that had been sent from Michigan to the Florida apartment. When he asked defendant if there was some place they could talk, defendant suggested the bedroom. Three police officers went into the bedroom with defendant. McLeod advised defendant that he was not under arrest and that he was not in custody. Defendant indicated to McLeod that he understood that he was not under arrest. When asked about the $6,000, defendant explained that Hall sent it as repayment of a loan. Defendant denied knowing anyone whose last name was "Hoelzer," and explained that he did not know who would be mailing cocaine to Hall. Defendant then consented to the search of his vehicle. Police recovered a date book with defendant's name and address written on the front page. The word "Hoelzer" was written on the page for the day on which Hall had placed his order.

Before leaving Michigan, McLeod obtained a warrant for defendant's arrest. During the interview in Florida, McLeod had the warrant in his possession. At the preliminary examination, McLeod testified that defendant would not have been allowed to "walk out of" the Florida apartment. This information was not conveyed to defendant. Sometime after defendant was questioned in the bedroom, he was arrested and moved to Michigan. The actual circumstances and timing of defendant's arrest are not discernible from the lower court record.

After the preliminary examination, defendant moved to suppress (1) evidence of the Federal Express package mailed to the Flint apartment, (2) evidence of his exculpatory statements made to McLeod in Florida, and (3) all of the evidence seized in Florida. Defendant argued that the search and seizure of the Federal Express package was unconstitutional because the police did not have a warrant. The prosecution countered that defendant lacked standing. Defendant argued that his statements to the police in Florida were inadmissible because they were obtained without the benefit of Miranda ² warnings. The prosecution countered that Miranda warnings were not required because the statements were not made during a custodial interrogation. In a written opinion and order, the trial court suppressed evidence of the cocaine recovered from the Federal Express package on the ground that a warrant was necessary. The trial court also suppressed evidence of defendant's exculpatory statements and the date book removed from his vehicle on the ground that they were both the product of an unlawful interrogation. On the basis of these rulings, the trial court dismissed the delivery charge.

On appeal, the prosecution again argues that defendant lacked standing to challenge the search and seizure of the Federal Express package containing the cocaine. We agree. To the extent a trial court's decision regarding a motion to suppress is based on an interpretation of the law, appellate review is de novo. People v. Marsack, 231 Mich.App. 364, 372, 586 N.W.2d 234 (1998). Factual findings made in conjunction with a motion to suppress are reviewed for clear error. People v. Mendez, 225 Mich.App. 381, 382, 571 N.W.2d 528 (1997). The deferential "clear error" standard is the appropriate standard of review for findings of fact because the trial court is usually in a superior position to assess the evidence. See People v. Mack, 190 Mich.App. 7, 17, 475 N.W.2d 830 (1991). In this case, however, the trial court made its decision solely on the basis of the preliminary examination transcript. Therefore, the trial court was in no better position than this Court to assess the evidence, and there is no reason to give special deference to the trial court's "findings."

In Michigan, a person's right to be secure from unreasonable searches and seizures is guaranteed by both the state and federal constitutions. See People v. Smith, 420 Mich. 1, 18-19, 360 N.W.2d 841 (1984), quoting Const 1963, art 1, § 11 and U.S. Const, Am IV. The right is personal and may only be invoked " 'at the instance of one whose own protection was infringed by the search or seizure.' " Smith, supra at 17 and 24, 360 N.W.2d 841, quoting Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Thus, a defendant is said to have "standing" to challenge a search or seizure if, under the totality of the circumstances, he has a subjective expectation of privacy in the object of the search or seizure and the expectation of privacy is one that society is prepared to recognize as reasonable. Smith, supra at 28, 360 N.W.2d 841; see also Rakas v. Illinois, 439 U.S. 128, 143, n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The defendant bears the burden of establishing standing. People v. Lombardo, 216 Mich.App. 500, 505, 549 N.W.2d 596 (1996).

A wrapped package delivered by a private freight carrier, like a letter sent through the United States mail, is among the class of effects in which a member of the public may have a legitimate expectation of privacy. United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); see also Lombardo, supra at 505, 549 N.W.2d 596. As a general rule, both the sender and the addressee have a legitimate expectation of privacy with regard to a mailed item while the item is en route. Upon delivery, the sender's legitimate expectation of privacy terminates. See 4 LaFave, Search and Seizure (2d ed.), § 11.3(f), pp. 341-346; see also United States v. King, 55 F.3d 1193, 1195-1196 (C.A.6, 1995); United States v. DiMaggio, 744 F.Supp. 43, 46 (N.D.N.Y., 1990). In this case, defendant has admitted that he sent the Federal Express package in question. ³ On the bases of defendant's admission and the fact that the package was carefully wrapped, the trial court concluded that defendant had standing to contest the search and seizure of the package. While it is undisputed that defendant would not have a privacy interest worthy of constitutional protection if he did not send the package, see, e.g., United States v. Koenig, 856 F.2d 843, 846 (C.A.7, 1988), we are not persuaded that his role in instigating the delivery of the package was, in itself, sufficient to establish standing to challenge its eventual search and seizure.

Defendant has failed to establish any connection between himself and the package beyond the fact that he was the person who caused its delivery by Federal Express. Nothing in the record suggests that defendant was known as "John Hoelzer," the name listed on the package as being the sender, and there is no apparent...