PEOPLE OF MI V KENNETH FERRELL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 13, 2004
Plaintiff-Appellee,
v
No. 244147
Washtenaw Circuit Court
LC No. 00-001301-FH
KENNETH FERRELL,
Defendant-Appellant.
Before: O’Connell, P.J., and Jansen and Murray, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of possession of 50 or more but less than
225 grams of cocaine, MCL 333.7403(2)(a)(iii), possession with intent to deliver less than five
kilograms of marijuana, MCL 333.7401(2)(d)(iii), and two counts of possession of a firearm
during the commission of a felony, MCL 750.227b. Defendant was sentenced to concurrent
prison terms of two years each for the felony-firearm convictions, to be served prior to and
consecutive to prison terms of ten to twenty years for the possession of cocaine conviction and
one to four years for the possession with intent to distribute marijuana conviction. We affirm.
On appeal, defendant challenges the trial court’s denial of his motion to suppress
evidence seized during a warrantless search of his apartment. Defendant and his co-occupant,
Charletta Van Hoose, who was his fiancé, separately gave written consent to search the
apartment. Defendant argued below, as he does on appeal, that the consents were not voluntarily
given and, therefore, were invalid.
“The consent exception to the warrant requirement allows a search and seizure when
consent is unequivocal, specific, and freely and intelligently given.” People v Goforth, 222 Mich
App 306, 309; 564 NW2d 526 (1997). Third parties who possess common authority over the
premises may provide consent to a search of the defendant’s premises. Id. at 311. A person’s
right to be free from unreasonable search and seizure “may be implicated where a person, under
particular circumstances, does not feel free to leave or where consent to search is coerced.”
People v Frohriep, 247 Mich App 692, 698; 637 NW2d 562 (2001). A trial court must review
the totality of the circumstances to decide if the consent to search was valid. People v Marsack,
231 Mich App 364, 378; 586 NW2d 234 (1998).
This Court reviews a trial court’s decision regarding the validity of a consent to search
for clear error. Goforth, supra at 310. The trial court’s resolution of facts at a suppression
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hearing “is entitled to deference,” particularly “where a factual issue involves the credibility of
the witnesses whose testimony is in conflict.” People v Farrow, 461 Mich 202, 209; 600 NW2d
634 (1999) citing People v Burrell, 417 Mich 439, 448-449; 339 NW2d 403 (1983). However,
the ultimate decision on a motion to suppress evidence is reviewed de novo. Frohriep, supra at
702; Goforth, supra at 310.
Defendant argues that the trial court clearly erred in relying on Charletta Van Hoose’s
consent to search the apartment, maintaining that she was subjected to harassment and
humiliation, rendering her “consent” invalid. Defendant maintains that Van Hoose did not
consent to the officers entering her apartment and was detained and not allowed to leave,
although she was not arrested. Further, defendant points out, Van Hoose was not allowed any
privacy to nurse her newborn child, was not permitted to go to the bathroom to attend to her
personal hygiene needs, and was very concerned about the other three children who were present
in the apartment. Defendant also maintains that State Trooper Christopher Harris testified that
Van Hoose was “probably told” that it was police policy to remove children and place them in
foster homes when all adults in a home are taken away.1
Conflicting testimony was presented at the evidentiary hearing regarding the officers’
entrance into the apartment. Trooper Harris testified that the officers conducted surveillance on
defendant’s apartment building, which was located in an apartment complex containing a
number of buildings. After seeing defendant leave the building in which he lived and then return
to the building, the officers ran to catch the door before it latched shut. The officers found
themselves in a small landing at the bottom of a staircase, saw defendant at the top of the stairs,
and took defendant into custody without incident. Trooper Harris testified that Van Hoose and
some children were present in the apartment. Van Hoose testified that the officers put a hole into
the wall of her apartment from the force of opening the door. Van Hoose further testified that,
when the officers first arrived, she stood at the top of the stairs, “screaming and hollering,” and
told them to get out of her house. Van Hoose testified that did not believe that she could leave
the apartment, and her testimony in this regard was substantiated by the testimony of Lieutenant
Steven Schook, who stated that “everyone’s detained while we’re doing a search” and that Van
Hoose was not free to leave “during the investigation.”
The trial court did not clearly err in finding that Van Hoose voluntarily consented to the
search of her apartment.2 The trial court opted to believe Trooper Harris' testimony that the
officers peaceably entered the apartment over the conflicting testimony of Van Hoose. We defer
to the trial court's resolution of this credibility dispute. While the situation may have been
1
The record discloses that Trooper Harris acknowledged that it was “standard protocol” to take
children into custody under such circumstances. Asked if it was “possible” that this was stated
to Van Hoose, Trooper Harris testified, “Could have been yes.”
2
We note that defendant does not dispute that Van Hoose had authority, both apparent and
actual, to consent to the search of the apartment. Van Hoose’s name was the only name on the
apartment’s lease, and she testified that there were no areas of the apartment that were personal
to defendant.
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uncomfortable for Van Hoose, who was not charged with any offense stemming from the search
of her apartment, there was no evidence that the officers were aware of the full extent of her
physical and emotional discomfort. Further, there was evidence that a female officer took the
older children into another room and entertained them. Finally, Van Hoose signed a written
consent form, which stated that she gave her consent to the search “freely and voluntarily” and
that she had “not been coerced or threatened in any manner.”
Furthermore, apart from the question of Van Hoose's consent to search, there was
undisputed evidence that defendant consented to the search. Lieutenant Schook testified that,
when defendant learned that Van Hoose had signed a consent form, he stated, “She’s not
involved. I’ll show you where the stuff is at.” Lieutenant Schook told defendant that he would
need to sign a consent form, read the form to defendant, and asked him to read it as well.
Defendant then signed the form. Although defendant argues that he consented only because he
had no right to resist the search after Van Hoose consented, defendant not only did not resist the
search but, also, actually cooperated with the officers during the search, showing them where
drugs and guns were located. We find no clear err in the trial court's determination that there
was no evidence of threats or promises made to defendant before he consented to the search, and
that his consent was voluntarily given.
Affirmed.
/s/ Peter D. O’Connell
/s/ Kathleen Jansen
/s/ Christopher M. Murray
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