People v. Phillips , 219 Mich. App. 159 ( 1996 )

555 N.W.2d 742 (1996) 219 Mich. App. 159

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
William Eugene PHILLIPS, Defendant-Appellant.

Docket No. 179105.

Court of Appeals of Michigan.

Submitted May 22, 1996, at Lansing. Decided September 27, 1996, 9:20 a.m. Released for Publication November 22, 1996.

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

Douglas W. Baker, Ann Arbor, for defendant on appeal.

Before MARKEY, P.J., and McDONALD and M.J. TALBOT,^[*] JJ.

McDONALD, Judge.

Following a jury trial, defendant was convicted of being a felon in possession of a firearm, M.C.L. § 750.224f; M.S.A. § 28.421(6). Thereafter, defendant pleaded guilty of being an habitual offender, third offense, M.C.L. § 769.11(1)(b); M.S.A. § 28.1083(1)(b), and was sentenced to 5½ to 10 years' imprisonment. Defendant now appeals as of right, claiming his Fourth Amendment right to privacy was violated when certain papers seized from his jail cell were admitted at trial and that his right to be free from twice being put in jeopardy was violated when he was sentenced as a third-felony offender on the basis of his conviction of being a felon in possession of a weapon. We affirm.

In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the United States Supreme Court held the protection of the Fourth Amendment against unreasonable searches and seizures does not apply to prisoners. However, because the Hudson holding refers to a "prison cell," it remains unclear whether a pretrial detainee, as opposed to a prisoner, retains any Fourth Amendment privacy protection in his cell.^[1] See 4 LaFave, Search and Seizure, § 10.9(a), pp 728-735. Although this appears to be an issue of first impression in Michigan,^[2] other states have addressed the issue, reaching conflicting results. See McCoy v. State, 639 So.2d 163 (Fla.App.,1994) (narrow Fourth Amendment protections); United States v. Cohen, 796 F.2d 20 (C.A.2, 1986) (limited Fourth Amendment rights); and State v. Martin, 322 N.C. 229, 367 S.E.2d 618 (1988) (pretrial detainee does not have a reasonable expectation of privacy within jail cell).

We believe the rationale underlying the Court's decision in Hudson applies equally to pretrial detainees and inmates confined in jails. As noted in Martin, supra at 232, 367 S.E.2d 618:

The same considerations which the [Hudson] Court said restricted a person's constitutional rights while in prison, that is, the need to maintain order in places of confinement, apply to pretrial detainees who are confined in jails.

Moreover, when addressing the restrictions on pretrial detainees' Fourth Amendment rights (before the Hudson decision) in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Court declined to make a distinction between prisons and jails in which people are incarcerated awaiting trial. The Court found in Bell that the fact of confinement and the legitimate objectives of the penal institution curtail the constitutional rights of any prisoner whether convicted or not. In terms of prison security, the Court found there was no basis to conclude pretrial detainees pose a lesser risk to security than convicted inmates. Id. at 546, 99 S.Ct. at 1877-78.

The search of the instant defendant's jail cell did not violate his Fourth Amendment "right to privacy" and thus introduction of the papers seized during the search was proper.

Defendant next argues the use of his prior felony convictions to establish the crime of felon in possession of a firearm and use of the same felony convictions to increase his sentence under the habitual offender laws violated double jeopardy. We disagree.

The double jeopardy provisions of the United States Constitution, U.S. Const., Am. V, and the Michigan Constitution, Const. 1963, art. 1, § 15, protect citizens from being subject to successive prosecutions and multiple punishments for the same offense. People v. White, 212 Mich.App. 298, 536 N.W.2d 876 (1995).

The third-felony habitual offender statute is expressly made applicable to the punishment for felony convictions by persons possessing two or more prior felony convictions. M.C.L. § 769.11; M.S.A. § 28.1083; People v. Brown, 186 Mich.App. 350, 463 N.W.2d 491 (1990). Pursuant to M.C.L. § 750.224f; M.S.A. § 28.421(6), the Legislature has provided that a person who has previously been convicted of a felony shall be guilty of a felony if he possesses a firearm unless he meets certain specified requirements. Neither the habitual offender statute nor the felon in possession of a firearm statute prohibits the application of the statutory habitual offender sentence enhancement provision for a conviction of felon in possession of a firearm. Nor do these statutes expressly preclude a prior felony conviction that is used to establish the crime of felon in possession of a firearm from also being used as a prior conviction under the habitual offender statutes. Brown, supra. "Thus absent an absurd or unjust result, or one clearly inconsistent with the purposes and policies of the statutes involved, [this Court] would not be justified in concluding that the statutes' respective mutual use of a prior conviction" is prohibited. Brown, supra at 354, 463 N.W.2d 491.

Finally, defendant argues that subjecting a defendant who has been found guilty of felon in possession of a firearm to the habitual offender act voids the statutory language that a person found guilty of the offense of felon in possession shall be punished by a term of imprisonment "for not more than five years." M.C.L. § 750.224f(3); M.S.A. § 28.421(6)(3). We disagree. The decision regarding what charges to file is within the discretion of the prosecutor. People v. Jackson, 192 Mich.App. 10, 480 N.W.2d 283 (1991). In those situations where a prosecutor does not file an habitual offender charge, a defendant convicted of felon in possession will not be subjected to an increased punishment and the five-year maximum sentence for the crime will not be voided.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] The record is unclear whether defendant was a pretrial detainee or a prisoner at the time of the seizure. However, because we find reversal is not required even if we assume defendant was a pretrial detainee, the issue may be decided notwithstanding the lack of a clear record.

[2] In People v. Trudeau, 385 Mich. 276, 281, 187 N.W.2d 890 (1971), a pre-Hudson case, our Supreme Court held that persons who are incarcerated in jail while awaiting trial do not lose their right to be protected against unreasonable searches and seizures. However, the Court noted that this holding was not in any way to be construed as limiting the ability to assure the protection of the police and of other prisoners. Id. Thus, even if the holding in Trudeau were to survive Hudson, Trudeau was not violated in this case because the search was conducted out of institutional concerns.