People v. MacK

298 N.W.2d 657, 100 Mich. App. 45, 1980 Mich. App. LEXIS 2921

Opinions

D. C. Riley, J.

Defendant was convicted of first-degree felony murder, MCL 750.316; MSA 28.548, and of possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2).

Defendant appeals as of right, alleging two errors, one of which we hold requires reversal.

Defendant correctly argues that the court erred in denying his motion to suppress evidence seized in a warrantless search of the home where he was staying. Although the search was conceded to be improper, the trial court ruled that defendant was without sufficient proprietary or possessory interest in the home to have standing to invoke the exclusionary rule.

At the evidentiary hearing, testimony revealed that the house belonged to defendant’s mother and was occupied by his cousin. Defendant was not present when the search took place, but he had been living there for approximately two weeks. Although defendant maintained another address where he received his mail, he had some of his clothing at his mother’s home and was free to come and go as he pleased.

In Rakas v Illinois, 439 US 128; 99 S Ct 421; 58 L Ed 2d 387 (1978), the Supreme Court established a test for determining standing to dispute a search and seizure.¹ A defendant may challenge a search only if he has a legitimate expectation of privacy in the searched area.

In the instant case, defendant had an expectation of privacy in his mother’s house. We believe that this expectation was reasonable, based on his having lived there for approximately two weeks, his keeping some clothes there, and his cousin’s full acceptance of his freedom to come and go at will.

In People v Mason, 22 Mich App 595; 178 NW2d 181 (1970), this Court found, on nearly identical facts, that the defendant had standing to dispute the contested search. Although that case was de cided under the "legitimately on the premises” test of Jones v United States, 362 US 257; 80 S Ct 725; 4 L Ed 2d 697 (1960), repudiated by United States v Salvucci, — US —; 100 S Ct 2547; 65 L Ed 2d 619 (1980), we believe that it, like this case, would have the identical result under the Rakas "legitimate expectation of privacy test”. The instant court erred, therefore, in its denial of the defendant’s motion to suppress.

Reversed and remanded.

E. A. Quinnell, J., concurred.

Footnotes

1

This new concept of standing has been explained further in United States v Salvucci, — US —; 100 S Ct 2547; 65 L Ed 2d 619 (1980), Rawlings v Kentucky, — US —; 100 S Ct 2556; 65 L Ed 2d 633 (1980). It replaces the earlier standard enunciated in Jones v United States, 362 US 257, 267; 80 S Ct 725; 4 L Ed 2d 697 (1960), "that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him”.