People of Michigan v. Neil Andrew Trapp ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
December 17, 2020
Plaintiff-Appellee,
v No. 345293
Macomb Circuit Court
NEIL ANDREW TRAPP, LC No. 2017-004415-FH
Defendant-Appellant.
Before: SWARTZLE, P.J., and BECKERING and GLEICHER, JJ.
SWARTZLE, P.J. (concurring).
I concur in the result only. During oral argument, defense counsel rhetorically asked
whether we can be safe from warrantless entry in “our” homes. I have serious doubts whether
defendant was in “his” home or that he otherwise had a legitimate expectation of privacy in the
trailer where he encountered the officers. Even setting this aside, the appeal should be resolved
on the basis of existing law, rather than reaching a novel question of constitutional law. Given the
posture of this appeal, however, I cannot dissent.
At the time of sentencing, the judgment of sentence listed defendant’s residence as being
on Doepfer Road in Warren, while the address of the trailer identified during the preliminary
examination was on Ready Road, a little over 2-1/2 miles away. Though it is possible that
defendant moved residences between the dates of arrest and sentencing, there is nothing in the
appellate record confirming that defendant actually resided on Ready Road on the date of arrest.
Prior to approaching the trailer, the officers had information that a male with a firearm had
caused a disturbance earlier in the evening, and the male might be a trespasser. The park manager
told the officers that the only person who lived in the trailer was a female. Thus, whether defendant
was a trespasser, a mere short-term/transient guest, or, instead, a social/overnight guest who had a
legitimate expectation of privacy in the trailer, depends on “the totality of the circumstances.”
People v Lombardo, 216 Mich. App. 500, 504; 549 NW2d 596 (1996); 68 Am Jur 2d, Searches and
Seizures, § 11, p 120. It is the defendant’s burden to show that he had a legitimate expectation of
privacy to challenge a warrantless entry under the Fourth Amendment. Lombardo, 216 Mich. App.
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at 505. With all of that said, the prosecutor did not challenge defendant’s standing to raise the
Fourth-Amendment defense.
Our Supreme Court ordered this Court on remand to answer three specific questions, as the
majority notes. I agree with the majority that, in the abstract, the constructive-entry doctrine should
be recognized in Michigan, and I further agree that there were not exigent circumstances when
officers commanded the occupants to exit the trailer. As to whether the facts of this case fall within
the doctrine, I reiterate my doubts on whether defendant had a legitimate expectation of privacy in
the trailer. These officers had reason to believe that there was an armed trespasser in or near the
premises, and they issued a simple, relatively calm command to the male occupants to exit the
trailer—a far cry from the shows of force and “overbearing tactics” found in other constructive-
entry situations. United States v Thomas, 430 F3d 274, 277 (CA 6, 2005) (collecting cases).
Nonetheless, these officers did issue a command, not a request, and assuming arguendo that
defendant had a legitimate expectation of privacy in the trailer, I agree with my colleagues that the
officers constructively entered the trailer.
I would have preferred not to have reached the constructive-entry question, however,
because as the majority recognizes, the arrest was without probable cause in any event. A court
should not address novel questions of constitutional law when the case can be resolved on settled
law, see Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich. 608, 614-615; 684 NW2d
800 (2004), rev’d on other grounds by Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich. 349;
792 NW2d 686 (2010), but our Supreme Court ordered this Court to address specific questions, so
the questions must be addressed.
Accordingly, I concur in the result only.
/s/ Brock A. Swartzle
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