People v. Grady

193 Mich. App. 721 (1992) 484 N.W.2d 417

PEOPLE
v.
GRADY

Docket No. 134847.

Michigan Court of Appeals.

Decided April 21, 1992, at 9:15 A.M.

Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

Richard L. Wurtz, for the defendant.

Before: MacKENZIE, P.J., and SULLIVAN and G.S. ALLEN,^[*] JJ.

PER CURIAM.

The people appeal by leave granted a circuit court order that affirmed a district court order granting defendant's motion to suppress. We reverse.

The facts are undisputed. In September 1988, the Mundy Township Police Department was asked by James Horton to make periodic "vacation checks" of a residence at 9512 S. Linden Road. The owner of the home, Horton's uncle, had died, leaving the home unoccupied. Horton informed the police that he expected to visit the home on occasion and described two automobiles that he would be driving. The police then began making periodic inspections, recording a total of thirty-three checks over the next eight months.

When Officer Marshall David Guigear made a routine check on May 9, 1989, he looked into the garage and saw two cars that did not match the description of Horton's cars. Officer Guigear checked the doors of the home and found a breezeway door between the house and garage unlocked. Believing that the security of the home may have been violated, Officer Guigear checked the house door and found it locked. The door to the garage was unlocked, however. Officer Guigear went into the garage and confirmed that the cars parked there did not match those owned by Horton. The hood of one of the cars, a late model Buick, was partially open and its engine was missing. Officer Guigear checked with the Law Enforcement Information Network and learned that the Buick had been reported stolen. The other automobile was registered to defendant, with 9512 S. Linden Road as his address.

Unbeknownst to the police, the residence at 9512 S. Linden Road had been sold and deeded to defendant approximately three months earlier, on February 2, 1989. Attempting to contact defendant, Guigear learned that defendant worked for a business that police knew built high-performance vehicles from assorted vehicle parts. A search warrant was then obtained, and the Buick was seized. Defendant was charged with possession of the stolen Buick.

The district court originally found that the search and seizure was proper and denied defendant's motion to suppress the car as evidence, reasoning that the police had a right to be on the property because they had been requested to check the residence and were not notified to stop their periodic checks. On reconsideration, however, the court accepted the defense argument that Horton's consent had been terminated as a matter of law by the sale of the property. The court therefore concluded that the officer's presence was based solely on "a good faith belief that permission still existed for him to inspect the property without a warrant." Because Michigan has rejected the "goodfaith" exception to the exclusionary rule, People v Sundling, 153 Mich App 277; 395 NW2d 308 (1986), the district court suppressed the evidence. The circuit court affirmed.

On appeal, the people contend that, notwithstanding that the property changed hands, the question for the court was whether, under the totality of the circumstances, the police reasonably believed that consent to search had been given. The people maintain that because the search was proper under the consent exception to the search warrant requirement, defendant's motion to suppress should have been denied. We agree.

The Fourth Amendment generally prohibits the entry without a warrant of a person's home, whether to make an arrest or to search for specific objects. Payton v New York, 445 US 573; 100 S Ct 1371; 63 L Ed 2d 639 (1980). The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched, see Schneckloth v Bustamonte, 412 US 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973), or from a third party who possesses common authority over the premises, see United States v Matlock, 415 US 164; 94 S Ct 988; 39 L Ed 2d 242 (1974).

Recently, the United States Supreme Court addressed the question presented in this case — whether an entry and search without a warrant is valid where it is based upon the consent of a person whom the police believe has authority over the premises, but who, in fact, no longer has such authority. Illinois v Rodriguez, 497 US ___; 110 S Ct 2793; 111 L Ed 2d 148 (1990). In Rodriguez, the Court held that an entry without a warrant based on the consent of a third party whom the officers reasonably believe to possess common authority over the premises, but who in fact does not possess such authority, does not violate the Fourth Amendment proscription of unreasonable searches and seizures.

The Court's opinion in Rodriguez explicitly rejected the notion that, where police officers erroneously believe that a person has authority to consent, the consent is invalid for Fourth Amendment purposes, noting that the Fourth Amendment prohibits only "unreasonable" searches and seizures:

What [a person] is assured by the Fourth Amendment itself, however, is not that no government search of his house will occur unless he consents; but that no such search will occur that is "unreasonable." US Const, Amdt 4. There are various elements, of course, that can make a search of a person's house "reasonable" — one of which is the consent of the person or his cotenant. The essence of respondent's argument is that we should impose upon this element a requirement that we have not imposed upon other elements that regularly compel government officers to exercise judgment regarding the facts: namely, the requirement that their judgment be not only responsible but correct.

* * *

... It is apparent that in order to satisfy the "reasonableness" requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government — whether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the warrant requirement — is not that they always be correct, but that they always be reasonable. As we put it in Brinegar v United States, 338 US 160, 176; 69 S Ct 1302; 93 L Ed 1879 (1949):

"Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability."

We see no reason to depart from this general rule with respect to facts bearing upon the authority to consent to a search. Whether the basis for such authority exists is the sort of recurring factual question to which law enforcement officials must be expected to apply their judgment; and all the Fourth Amendment requires is that they answer it reasonably. The Constitution is no more violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises, than it is violated when they enter without a warrant because they reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape. [111 L Ed 2d 158, 159-160.]

Thus, the police belief that they have valid consent must be reasonable under the circumstances; a good-faith belief is not the controlling criterion. Michigan case law is in accord. See People v Gary, 150 Mich App 446; 387 NW2d 877 (1986).

In this case, defense counsel in arguing his motion to suppress explicitly conceded that at the time Guigear conducted his inspection of defendant's home, he reasonably believed that he was doing so pursuant to James Horton's valid request. Because Officer Guigear's conduct was completely reasonable, there was no Fourth Amendment violation.

Reversed.

NOTES

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