People v. Wagner

320 N.W.2d 251, 114 Mich. App. 541

• Court: Michigan Court of Appeals
• Decided: April 5, 1982
• Docket: Docket 48811
• Status: Published

Opinions

M. J. Kelly, P.J.

Defendant Charles David Wagner appeals as of right his convictions for armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The defendant’s conviction was entered at the conclusion of a bench trial held before acting Jackson County Circuit Court Judge James M. Justin, and was based upon charges stemming from the April 9, 1979, robbery of the Kwick Shop Party Store in Pleasant Lake. The robbery was allegedly committed by the defendant and an accomplice, Steven Hartranft. In a separate proceeding, Hartranft pled guilty to identical charges. Defendant raises three issues.

I

The defendant first argues as reversible error the lower court’s decision not to suppress from evidence two rifles, ammunition, and two ski masks used in the robbery, which were allegedly obtained during an illegal search without a warrant of a townhouse in which the defendant was residing. The disputed search was conducted with the consent of Hartranft, who was arrested with the defendant and questioned just outside of the residence. At the conclusion of the hearing on the suppression of the evidence the trial court concluded that the facts disclosed no search at all since Hartranft had led the investigating officers to the attic in which the evidence was hidden.

A search and seizure without a warrant is unreasonable per se and violates the Fourth and Fourteenth Amendments of the United States Constitution and Const 1963, art 1, § 11, unless shown to be within one of the exceptions to the rule. People v Reed, 393 Mich 342, 362; 224 NW2d 867 (1975), cert den 422 US 1044, 1048 (1975). The burden of proof is always on the state to show that an exception exists. Id., 362. Whether a valid consent was given is a question of fact, and this Court will not reverse a trial court’s finding concerning consent unless it is clearly erroneous. People v Whisnant, 103 Mich App 772, 776; 303 NW2d 887 (1981), lv den 411 Mich 960 (1981).

When challenging a search and seizure, a defendant must demonstrate that his Fourth Amendment rights have been violated. Rakas v Illinois, 439 US 128, 134; 99 S Ct 421; 58 L Ed 2d 387 (1978). An analysis of whether defendant’s Fourth Amendment rights have been violated does not focus on arcane distinctions developed in property or tort law, but on whether defendant had a legitimate expectation of privacy in the place searched. Id., 143. See also United States v Salvucci, 448 US 83; 100 S Ct 2547; 65 L Ed 2d 619 (1980), Rawlings v Kentucky, 448 US 98; 100 S Ct 2556; 65 L Ed 2d 633 (1980).

The evidence presented at the preliminary examination demonstrated that defendant was living in the townhouse which was rented by his girlfriend. Although he did not pay rent or utilities, he did sometimes pay for groceries. Defendant had been a full-time resident of the townhouse for approximately four months. While defendant occasionally stayed at his parents’ house, the evidence established that he had a legitimate expectation of privacy in the townhouse and could challenge the search.

On appeal, the prosecutor seeks to justify the search by claiming that Hartranft consented to the search. A search pursuant to a valid consent is constitutionally permissible. Schneckloth v Bustamonte, 412 US 218, 219, 222; 93 S Ct 2041; 36 L Ed 2d 854 (1973). A search is also valid if the permission to search was obtained from a third party who possessed common authority over, or other sufficient relationship to, the premises or things sought to be inspected. United States v Matlock, 415 US 164, 171; 94 S Ct 988; 39 L Ed 2d 242 (1974). The Court explained common authority:

"Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v United States, 365 US 610; 5 L Ed 2d 828; 81 S Ct 776 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v California, 376 US 483; 11 L Ed 2d 856; 84 S Ct 889 (1964) (night hotel clerk could not validly consent to search of customer’s room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the coinhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Id., 172, fn 7.

However, the Supreme Court expressly left open the question of whether a search without a warrant may be sustained merely upon a showing that the searching officers reasonably, albeit erroneously, believed that the consenting party had sufficient authority over the premises to permit the search. Id., 177, fn 14.

In People v Adams, 53 NY2d 1; 439 NYS2d 877; 422 NE2d 537 (1981), the Court of Appeals of New York addressed the issue of whether an officer’s reasonable belief was sufficient to justify the search without a warrant. In that case, a police officer, after being shot at by the defendant, was approached by the defendant’s girlfriend, who led the police to the defendant’s apartment. She unlocked the apartment door and led the police to a closet in which a rifle and ammunition were discovered. Upon leaving the apartment, the girlfriend informed police that she did not live in the apartment. The defendant tried to suppress the seized evidence but failed and appealed his conviction to the Court of Appeals. Initially, the qourt rejected the state’s argument that the girlfriend, a private individual, had conducted the search and therefore the Fourth Amendment had not been violated. Id., 7. Examining the issue of whether the police officer’s reasonable belief that the woman could consent to the search could justify it, the court wrote:

"We would agree that where the searching officers rely in good faith on the apparent capability of an individual to consent to a search and the circumstances reasonably indicate that that individual does, in fact, have the authority to consent, evidence obtained as the result of such a search should not be suppressed. * * * We emphasize that the police belief must be reasonable, based upon an objective view of the circumstances present and not upon the subjective good faith of the searching officers. Moreover, a warrantless search will not be justified merely upon a bald assertion by the consenting party that they possess the requisite authority. Nor may the police proceed without making some inquiry into the actual state of authority when they are faced with a situation which would cause a reasonable person to question the consenting party’s power or control over the premises or property to be inspected. In such instances, bare reliance on the third party’s authority to consent would not be reasonable and would, therefore, subject any such search to the strictures of the exclusionary rule.” Id., 9.

The court concluded that the officer had a reasonable belief that the woman could consent to the search. Id., 11.

In this case, on April 10, 1979, the police arrived at the townhouse of Jacalyn Whiting, defendant’s girlfriend, where they found the defendant and Hartranft. The two men were taken to different police cars and questioned about certain armed robberies. After Hartranft admitted participating in the robberies, he told the officer that the weapons used in the robberies were in the townhouse. Hartranft proceeded into the house followed by a police officer. He led the officer to a bedroom closet where the officer found the weapons hidden in a crawl space.

At the time of the search, the police did not know who rented the townhouse. When they asked Hartranft if he lived in the townhouse, Hartranft indicated only that defendant’s girlfriend rented the townhouse. At the preliminary examination the officer in charge of the search admitted that it was not Hartranft’s residence. The record is devoid of any evidence that supports a finding that the police could reasonably believe that Hartránft had common authority over or other sufficient relationship to the premises to justify a belief that he could consent to a search.

We likewise reject the trial court’s reasoning that Hartranft and not the police searched the townhouse. While Hartranft did show the police where the weapons were located, he was in police custody at the time and had just confessed to armed robbery. Furthermore, the police officer actually searched the crawl space and seized the weapons. Where, as here, there has been affirmative participation by government officials in obtaining evidence, the police cannot avoid the constitutional limitations imposed upon them by claiming that the acts of a private party are also involved. Adams, supra, 7.

The weapons, ammunition and ski masks introduced at trial were the fruits of an illegal search and should not have been admitted at the defendant’s trial.

The defendant next asserts that his confession, volunteered at the time investigating officers emerged from the townhouse with the rifles, ammunition and clothing, should have been ruled inadmissible at trial as a fruit of the illegal search. The panel in the prior Wagner case, raised but did not decide this issue sua sponte.1 The facts pertinent to the defendant’s confession were outlined in the following discussion:

"An issue that was argued below, but not raised by defendant’s appellate counsel, is whether his confession resulted from an illegal search and seizure and should have been excluded as 'fruits of the poisonous tree’. See People v Roderick Walker, 27 Mich App 609; 183 NW2d 871 (1970). The evidence indicated that defendant initially refused to make a statement and requested an attorney when questioned in a police car outside of the townhouse. When Hartranft and the two police officers emerged with the seized evidence, defendant changed his mind and, after waiving his Miranda rights, admitted his participation in the two armed robberies. He repeated the confession in a written statement later that day, again preceded by a waiver of his Miranda rights.” People v Wagner, supra, 179-180.

We note that a decision of a trial court at a hearing on the suppression of evidence will not be reversed on appeal unless the decision is found to be clearly erroneous. People v Erskin, 92 Mich App 630; 285 NW2d 396 (1979).

Our inquiry into this question is guided by the United States Supreme Court’s decisions in Brown v Illinois, 422 US 590; 95 S Ct 2254; 45 L Ed 2d 416 (1975), and its progeny. In Brown, a case said to lie at "the crossroads of the Fourth and the Fifth Amendments”, id., 420, the Court analyzed the admissibility of incriminating statements made after the defendant’s arrest without probable cause, in violation of the Fourth Amendment. The Court relied on its prior decision in Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963), to hold that the giving of Miranda² warnings alone could not purge a confession of the primary taint brought about by the original illegal arrest. The test espoused in Brown to determine the voluntariness of a confession following an arrest violative of the Fourth Amendment was most recently summarized in Rawlings v Kentucky, 448 US 98, 106-107; 100 S Ct 2556; 65 L Ed 2d 633 (1980):

"As we noted in Brown v Illinois, [supra,] where we rejected a 'but for’ approach to the admissibility of such statements, 'persons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality.’ In Brown we also set forth the standard for determining whether such statements were tainted by antecedent illegality: ■

" 'The question whether a confession is the product of a free will * * * must be answered on the facts of each case. No single fact is dispositive. * * * The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. The voluntariness of the statement is a threshold requirement. And the burden of showing admissibility rests, of course, on the prosecution.’ 422 US 603-604; 45 L Ed 2d 416; 95 S Ct 2254 [1975] (footnotes and citations omitted). See also Dunaway v New York, 442 US 200, 218; 60 L Ed 2d 824; 99 S Ct 2248 (1979).”

See also People v Solomon Washington, 99 Mich App 330, 334-335; 297 NW2d 915 (1980), lv gtd 410 Mich 868 (1980), and People v Martin, 94 Mich App 649, 653-654; 290 NW2d 48 (1980), for cases applying the same test to assess the admissibility of confessions or statements made after otherwise illegal arrests.

We do not agree with the people that, based upon an argued distinction between an illegal arrest and an illegal seizure of evidence as the catalyst for subsequent incriminating statements, the above test to determine voluntariness is inapplicable in examining the voluntariness of this defendant’s confession. See United States v Ceccolini, 435 US 268; 98 S Ct 1054; 55 L Ed 2d 268 (1978), retaining the general analytical framework espoused in Brown, but holding that "the exclusionary rules should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object”. Id., 280; 55 L Ed 2d 279. Review of the Ceccolini majority’s opinion discloses a similar view toward statements offered by a defendant;³ thus, we are required to apply the Brown standards to the instant facts.

Our inquiry thus directed, we hold that the trial court’s decision to admit the defendant’s confessions, despite the reservation to excluding statements of a live witness in Ceccolini, was in error. But applying the Brown standards to the defendant’s first confession, we find that there was a close temporal proximity between the illegal seizure of evidence and the incriminating statements. The evidence discloses that the defendant first requested an attorney upon being questioned in a squad car outside of his residence. At that juncture the questioning ceased, except for a discussion initiated by the defendant concerning possible penalties for armed robbery. Only when investigating officers emerged from the residence with the illegally seized weapons did the defendant indicate his desire to discuss the circumstances of the offense. Further, there is no evidence in the record of intervening circumstances between the seizure and confession. The defendant, upon seeing the weapons, immediately indicated his desire to discuss the offense for which he was charged. Finally, while the purpose of the seizure does not appear to have been aimed at extracting a confession from the defendant, the effect was a logical consequence. Balancing these factors, we conclude that the first confession was the fruit of the illegal search and seizure.

III

A similar conclusion can be made with regard to the defendant’s subsequent confession, given at the Michigan State Police Post in Blackman Township shortly after the first statement was made. The second statement was made by the defendant less than one hour after the first, and the only intervening event of significance was a third recitation of defendant’s Miranda rights. Although the warnings given before the second confession was made would have been sufficient to purge the statement of any Fifth Amendment objections concerning voluntariness, Brown v Illinois, supra, 426, citing Wong Sun, supra, 486; 83 S Ct 407; 9 L Ed 2d 441 (1963), the same is not true for alleged illegalities grounded on the Fourth Amendment. In Dunaway v New York, 442 US 200, 218; 99 S Ct 2248; 60 L Ed 2d 824 (1979), the Supreme Court stated:

"The situation in this case is virtually a replica of the situation in Brown. Petitioner was also admittedly seized without probable cause in the hope that something might turn up, and confessed without any intervening event of significance. Nevertheless, three members of the Appellate Division purported to distinguish Brown on the ground that the police did not threaten or abuse petitioner (presumably putting aside his illegal seizure and detention) and that the police conduct was 'highly protective of defendant’s Fifth and Sixth Amendment rights,’ 61 AD2d 303; 404 NYS2d 493. This betrays a lingering confusion between 'voluntariness’ for purposes of the Fifth Amendment and the 'causal connection’ test established in Brown. Satisfying the Fifth Amendment is only the 'threshold’ condition of the Fourth Amendment analysis required by Brown. No intervening events broke the connection between petitioner’s illegal detention and his confession. To admit petitioner’s confession in such a case would allow law enforcement officers to violate the Fourth Amendment with impunity, safe in the knowledge that they could wash their hands in the 'procedural safeguards’ of the Fifth. ” (Footnotes omitted; emphasis added.)

See also People v Solomon Washington, supra, 336, for a case in which a defendant’s statement was sufficiently attenuated from his illegal arrest. In Washington, the defendant’s confession was precipitated by the revelation of a legally obtained statement made by the defendant’s sister to police. Here, there were no intervening events to purge the defendant’s second confession of the taint caused by the illegal seizure herein. We hold that the statement was the fruit of an illegal search. Thus, the lower court erred in permitting the statement to be admitted.

IV

The defendant’s final allegation of error concerns the trial court’s denial of a defense motion, offered on the day scheduled for trial, to withdraw the defendant’s prior waiver of his right to a jury trial. On June 18, 1979, defendant executed both a written and oral waiver of jury trial and elected to be tried before Jackson County Circuit Court Judge Charles J. Falahee. By the August 13, 1979, trial date, however, District Judge Justin had been assigned to preside over defendant’s trial because Judge Falahee was on vacation. After a number of motions designed to have the case heard by Judge Falahee and after two recesses, defendant indicated his desire to withdraw his jury waiver. Thereupon, the trial court made inquiries to determine the availability of a jury panel. Upon finding no panel available and because the lower court thought the motion was a delaying tactic to avoid trial, the motion was denied.

In People v John Haddad, 306 Mich 556, 559; 11 NW2d 240 (1943), the Supreme Court was presented with a question similar to that argued herein: "Did the [trial] court err in refusing to allow defendant the right to withdraw a waiver of a trial by jury when a request was made before any witnesses were called and sworn?” After the Haddad Court noted the statutory right of a defendant to waive his right to a jury, 3 Comp Laws 1929, § 17131 (Stat Ann § 28.856), since replaced by MCL 763.3; MSA 28.856, the Court held:

"At the opening of his trial before the court at that time, while discussing the lack of counsel, the defendant said 'I’d like to get a jury trial anyway.’ To grant this request would have merely resulted in a continuance until a jury was present, at which time the defendant again might have waived a jury trial, as he would have the right to do. Carried to the extreme, such a procedure would delay trial indefinitely. With each change from jury to nonjury docket, or vice versa, the accused might reverse his position as a ruse to delay trial. In this case, six months had elapsed since the defendant had waived jury trial, and nearly a year since his arraignment. The orderly procedure of courts for the prompt trial of criminal cases does not require more than was done by the court in this case. Defendant’s constitutional rights were not violated.”

The standard of review to be applied to motions for withdrawal of jury waivers has not been previously decided by this Court. In this regard we note, however, the general rule summarized in 47 Am Jur 2d, Jury, § 67, pp 684-685:

"As a general rule, and apart from statutes limiting its authority, a court may permit the withdrawal of a waiver of the right to trial by jury, or on motion or request, set aside such a waiver, if the request is timely made, unless the waiver has been acted upon. According to some cases, once a waiver of jury trial has matured, the waiver may not be withdrawn at the instance of one party, although other cases have recognized that such a waiver may, for good cause, be withdrawn with the consent of the court. As a general rule, a waiver of a jury trial voluntarily and regularly made cannot afterward be withdrawn except in the discretion of the court.” (Footnotes omitted.)

In our view, the trial court did not abuse its discretion in denying the defendant’s motion to withdraw. Review of the record at trial discloses that the defendant’s request for a jury, after his prior waiver, was made as part of a general attempt to delay trial so that the case could be heard before Judge Falahee. Absent additional factors, we do not view this rationale as adequate to support withdrawal of a prior waiver. The trial court thus did not abuse its discretion in denying the defendant’s motion.

V

We must finally determine whether the erroneous admission of the defendant’s confessions and the articles seized at defendant’s residence constituted error requiring reversal under the standards noted in People v Robinson, 386 Mich 551; 194 NW2d 709 (1972). In the first Wagner decision, this Court found the error arising from improper admission of the evidence seized at defendant’s residence and "any error which may have occurred regarding the admissibility of defendant’s confessions” to be harmless. Additional evidence supporting the conviction, which rendered harmless the errors committed by the trial court, was summarized in the following discussion:

"If we assume that the statements were inadmissible along with the evidence seized in the townhouse, there was other evidence adduced at trial which supported defendant’s conviction. Kenneth James Darnall, the party store clerk, identified defendant as one of the robbers. On cross-examination, he acknowledged that the robbers wore stockings over their faces, but claimed he could identify defendant because the stocking over defendant’s face was clear. The trial judge indicated that Darnall’s testimony alone was sufficient to support the conviction. However, we should note that a portion of this witness’s testimony concerned one of the rifles seized from the townhouse attic. The testimony of defendant’s girlfriend, Ms. Whiting, also supported the conviction. She stated that defendant told her that he had robbed the Party Pointe store and taken about $300.” People v Wagner, supra, 180.

In this case, the properly admitted evidence is less supportive of the defendant’s guilt. Unlike the first decision, the store clerk in this case was unable to identify either defendant. The sole testimony directly supporting a guilty verdict was that of the defendant’s girlfriend, Jacalyn Whiting. At this trial, Whiting testified that the defendant and Hartranft returned to her home possibly around midnight, April 9, 1979, the date of the second robbery. Whiting related a conversation she had with defendant that night, during which the defendant said he and Hartranft "had just robbed a Quick Shop, or a party store at Pleasant Lake” and that "he (Wagner) was scared because he said he was pretty sure he was caught”.

In light of the lack of properly admitted evidence supporting defendant’s guilt in this case, we cannot say that the errors below were harmless beyond a reasonable doubt. The defendant’s convictions are thus reversed and the case is remanded for a new trial.

Reversed and remanded.

1 After reviewing the evidence properly admitted in the defendant’s trial on the first charge, the Court concluded it was unnecessary to decide whether the confession was a fruit of the illegal search. The Court held that the remaining evidence implicating the defendant in the March 20, 1979, robbery was sufficient to render harmless any error arising from admission of the firearms and other materials found in the townhouse or the defendant’s confession. People v Wagner, 104 Mich App 169; 304 NW2d 517 (1981).

2 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).

3 The majority reasoned:

"Evaluating the standards for application of the exclusionary rule to live-witness testimony in light of this balance, we are first impelled to conclude that the degree of free will exercised by the witness is not irrelevant in determining the extent to which the basic purpose of the exclusionary rule will be advanced by its application. This is certainly true when the challenged statements are made by a putative defendant after arrest, Wong Sun, supra, 491; 9 L Ed 2d 441; 83 S Ct 407; Brown v Illinois, supra, and a fortiori is true of testimony given by nondefendants.

"The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness. Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence. The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness’ willingness to testify.

"Another factor which not only is relevant in determining the usefulness of the exclusionary rule in a particular context, but also seems to us to differentiate the testimony of all live witnesses — even putative defendants — from the exclusion of the typical documentary evidence, is that such exclusion would perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby. Rules which disqualify knowledgeable witnesses from testifying at trial are, in the words of Professor McCormick, 'serious obstructions to the ascertainment of truth’; accordingly, '[f]or a century the course of legal evolution has been in the direction of seeping away these obstructions.’ C. McCormick, Law of Evidence, § 71 (1954). Alluding to the enormous cost engendered by such a permanent disability in an analogous context, we have specifically refused to hold that 'making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.’ United States v Bayer, 331 US 532, 541; 91 L Ed 1654; 67 S Ct 1394 (1947).” United States v Ceccolini, supra, 276-278; 55 L Ed 2d 277-278. (Emphasis added; footnote omitted.)