PEOPLE OF MI V PAUL A TAYLOR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
October 8, 2002
9:00 a.m.
Plaintiff-Appellant,
v
No. 237223
Wayne Circuit Court
LC No. 01-002472 FC
PAUL A. TAYLOR,
Defendant-Appellee.
Updated Copy
January 3, 2003
Before: Kelly, P.J., and Murphy and Murray, JJ.
KELLY, P. J.
Defendant was charged with possession with intent to deliver less than fifty grams of
cocaine, MCL 333.7401(2)(a)(iv), and possession of a firearm during the commission of a
felony, MCL 750.227b. The trial court granted defendant's motion to suppress the evidence and
dismissed the case against defendant. We reverse and remand.
I. Basic Facts and Procedural History
On February 7, 2001, Detroit Police Officer William Ashford was assigned to a plain
clothes unit that investigated narcotics complaints. During his six years of employment with the
precinct, he was dispatched to 17387 Ferguson in the city of Detroit approximately fifteen times
to investigate such complaints. Ashford believed that drugs were being sold at the location, and
he had recovered drugs from the house during the previous year. However, he never observed
defendant at or in the house on any of these fifteen prior occasions.
Approximately two weeks before the incident resulting in defendant's prosecution,
Ashford was again called to the Ferguson house to follow up on a narcotics complaint. At that
time, Ashford believed, on the basis of the condition of the premises, that the house was
unoccupied and vacant. There were no doors whatsoever on the house and only the windows on
the north side of the house were boarded up. There was no running water or working gas in the
house. Because the electrical meter box was disconnected and there was an orange 110-volt
extension cord running to the house from a neighboring property, Ashford believed that the
electricity servicing the house was illegally procured. There was raw sewage in the basement
and a card table was the only furniture found in the house.
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On February 7, 2001, Officer Ashford and his partner Charles Oates were dispatched to
17387 Ferguson to investigate still another narcotics complaint. Ashford testified that when he
arrived at the home, he noticed that more windows were boarded up but no doors hung in the
doorways. The officers got out of their vehicle and approached the south side of the house.
While the officers traveled down the south side, they heard a cell phone ringing and proceeded to
the rear entrance. Officer Ashford testified that there was no door at the rear entrance to the
house, but at one time it had been boarded up. On this particular instance, Ashford testified that
the board was moved away from the doorway, allowing the officers an unobstructed view into
the basement.
The officers did not have a search warrant. Nevertheless, they proceeded through the rear
entrance and up the stairs into the kitchen, where they observed defendant seated at a card table
with packaging bags that Officer Ashford believed contained crack cocaine. A cell phone and a
firearm were also on the card table along with the suspected crack cocaine. The officers placed
defendant under arrest and seized the contraband. At the time of his arrest, defendant stated that
he resided at 15893 Muirland. Later, at the precinct, he reaffirmed the address as his residence.
Defendant moved to have evidence of the narcotics suppressed on the ground that the
search and seizure without a warrant violated both the United States Constitution and the
Michigan Constitution, US Const, Am IV; Const 1963, art 1, § 11, as an unreasonable search and
seizure. In support of his position, defendant produced a lease for the premises at 17387
Ferguson. Defendant argued that because he had a leasehold interest in the house, he had an
expectation of privacy that required a search warrant to invade. The prosecutor argued that
defendant did not have a legitimate expectation of privacy in the property despite the lease
because the property was obviously abandoned and, furthermore, defendant was not actually
living at the house.
After hearing the evidence presented, the trial court suppressed the evidence seized,
ruling:
[T]he officers believed in good faith that the place was vacant. It looks
vacant. There are no doors, the windows are boarded up, and they have been
getting complaint after complaint, which is what they get all of the time on these
kinds of houses.
And the person who is just in there occupying it without a real legal right
to be there has not [sic] expectation of privacy. And therefore, as long as it was
actually vacant, the officers had every right to just walk right in there and look.
Now, in this instance, the defendant has presented a lease. He has an
expectation of privacy, which would require that they get a search warrant.
[T]here are a lot of things that people lease or own that they expect to have
privacy in. They're not always houses. They are all kinds of things. But once
they lease them, they have an expectation of privacy, and it requires a search
warrant to go in and violate that interest.
So I am going to have to suppress the evidence . . . .
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The prosecution appeals as of right.
II. Standard of Review
In a suppression hearing, this Court reviews a trial court's factual findings for clear error
and will affirm unless left with a definite and firm conviction that a mistake was made. People v
Davis, 250 Mich App 357, 362; 649 NW2d 94 (2002). However, we consider de novo the trial
court's ultimate ruling on defendant's motion to suppress. Id.
III. Fourth Amendment Jurisprudence
The right against unreasonable searches and seizures is guaranteed by both the United
States Constitution and the Michigan Constitution. US Const, Am IV; Const 1963, art 1, § 11;
Illinois v McArthur, 531 US 326, 330; 121 S Ct 946; 148 L Ed 2d 838 (2001); People v
Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000). The Fourth Amendment "was a
reaction to the evils of the use of the general warrant in England and the writs of assistance in the
Colonies, and was intended to protect against invasions of `the sanctity of a man's home and the
privacies of life,' [citation omitted], from searches under indiscriminate, general authority."
Warden, Md Penitentiary v Hayden, 387 US 294, 301; 87 S Ct 1642; 18 L Ed 2d 782 (1967). To
jealously guard and protect these private interests from arbitrary governmental intrusions, the
Fourth Amendment prohibited unreasonable searches and seizures and further required the use of
a warrant that particularly describes "the place to be searched, and the persons or things to be
seized," thus "interposing 'a magistrate between the citizen and the police.'" Id. (citation
omitted).
Not all searches, however, implicate the Fourth Amendment. To be sure, those seeking
asylum in the Fourth Amendment must demonstrate its applicability. Rawlings v Kentucky, 448
US 98; 100 S Ct 2556; 65 L Ed 2d 633 (1980); People v Nash, 418 Mich 196, 204; 341 NW2d
439 (1983). Because the Fourth Amendment protects people, as opposed to places or areas, the
United States Supreme Court emphasized that a search for purposes of the Fourth Amendment
occurs when the government intrudes on an individual's reasonable, or justifiable, expectation of
privacy. See Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967); Nash,
supra at 205. Indeed, what an individual "'seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected.'" People v Clark, 133 Mich App 619,
625; 350 NW2d 754 (1983), quoting Katz, supra at 351-352.
IV. Reasonable Expectation of Privacy
The prosecution argues that the trial court's decision suppressing the evidence solely on
the basis of defendant's leasehold interest in the property constituted error. We agree and find
that a leasehold interest alone does not establish a legitimate expectation of privacy entitled to
Fourth Amendment protection.
An expectation of privacy is legitimate only if the individual exhibited an actual,
subjective expectation of privacy and that actual expectation is one that society recognizes as
reasonable. Bond v United States, 529 US 334, 338; 120 S Ct 1462; 146 L Ed 2d 365 (2000), on
remand 213 F3d 840 (CA 5, 2000); People v Perlos, 436 Mich 305, 317; 462 NW2d 310 (1990).
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Whether the expectation exists, both subjectively and objectively, depends on the totality of the
circumstances surrounding the intrusion. Id. at 317-318; People v Smith, 420 Mich 1, 27-28; 360
NW2d 841 (1984).
To determine whether defendant had a reasonable expectation of privacy in the Ferguson
house sufficient to challenge the search under the Fourth Amendment, we must inquire whether
defendant "took normal precautions to maintain his privacy—that is, precautions normally taken
by those seeking privacy." Id. at 26, quoting with approval Rakas v Illinois, 439 US 128, 152155; 99 S Ct 421; 58 L Ed 2d 387 (1978) (Powell, J. concurring). At best, the record reveals that
defendant nailed up additional boards on the windows but otherwise neglected to erect doors in
the doorways for purposes of excluding the general public. Indeed, a "normal precaution" to
maintain privacy, at a bare minimum, certainly includes installing functional doors on the outside
of the premises, replacing shattered windows, and erecting signs against trespass to discourage
would-be intruders from entering. When the officers went to the vacant house to investigate the
complaint, they did not observe any signs posted against trespass, or any other measure taken to
exclude members of the public in general. See People v Taormina, 130 Mich App 73, 79; 343
NW2d 236 (1983), quoting People v Dinsmore, 103 Mich App 660, 669; 303 NW2d 857 (1981)
(listing some factors that demonstrate an individual's reasonable expectation of privacy).
Though defendant contends that he displayed a subjective expectation of privacy by
nailing up a board or two, that alone was insufficient to "maintain his privacy" and is not, as a
matter of law, an expectation that society is prepared to accept as reasonable. Smith, supra at 26;
see also People v Custer (On Remand), 248 Mich App 552, 560; 640 NW2d 576 (2001);
California v Greenwood, 486 US 35, 39; 108 S Ct 1625; 100 L Ed 2d 30 (1988). Although the
Fourth Amendment viciously protects one's privacy interest in the home as against warrantless
governmental intrusions, that expectation is considerably reduced while in a structure that by all
objective indications appears abandoned.
A. Abandonment
A person can abandon property and thus entirely deprive himself of the ability to contest
a search and seizure of that property. See People v Zahn, 234 Mich App 438, 448; 594 NW2d
120 (1999); see also People v Rasmussen, 191 Mich App 721; 478 NW2d 752 (1991). The
search and seizure of property that has been abandoned is "presumptively reasonable," because
the owner no longer has an expectation of privacy in the abandoned property. Rasmussen, supra
at 725, citing People v Romano, 181 Mich App 204, 214; 448 NW2d 795 (1989). "Because there
is no expectation of privacy in abandoned property, and because Fourth Amendment protections
apply only when there is such an expectation of privacy, the defendant bears the burden of
showing that the property searched was not abandoned." Rasmussen, supra at 725. The proof
required to substantiate abandonment "should reasonably lead to an exclusive inference of
'throwing away.'" Id., citing People v Shabaz, 424 Mich 42, 65-66; 378 NW2d 451 (1985).
Whether an owner "abandoned" his property is an ultimate fact that turns on a combination of act
and intent. Id.; Rasmussen, supra at 725.
With respect to abandoned or vacant structures, objective factors pertinent to the totality
of the circumstances inquiry must be evaluated. Case by case, these factors will become relevant
to determine whether police officers must secure a warrant before entering: (1) the outward
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appearance, (2) the overall condition, (3) the state of the vegetation on the premises, (4) barriers
erected and securely fastened in all openings, (5) indications that the home is not being
independently serviced with gas or electricity, (6) the lack of appliances, furniture, or other
furnishings typically found in a dwelling house, (7) the length of time that it takes for temporary
barriers to be replaced with functional doors and windows, (8) the history surrounding the
premises and prior use, and (9) complaints of illicit activity occurring in the structure. Although
the listed factors are not exhaustive or otherwise dispositive, a trial court must necessarily place
them into the totality of the circumstances equation where a vacant structure is at issue.
B. The Ferguson House
Applying these objective factors to the case at bar leads to the reasonable inference that
the Ferguson house was indeed abandoned. From its exterior, it appeared to be vacant, i.e.,
unoccupied, abandoned. Either boards hung in place of windows and doors or the openings
remained entirely exposed. In fact, police could see directly into the interior of the house
through the vacant rear doorway. In its interior, the house had no running water, no apparent
legitimate source of electricity, and no gas, and in the basement stood raw sewage. Additionally,
not even the most basic of appliances were found in the house and the only furniture was a card
table and a few boxes on which to sit, providing further, objective indicia that the house was
abandoned.
In addition, Ashford's testimony established that, over the past six years, he had been at
17387 Ferguson approximately fifteen times for purposes of responding to various narcotics
complaints and had recovered drugs from the house during the previous year. Two weeks before
the date at issue, Ashford answered a narcotics complaint at 17387 Ferguson. At that time, there
were no doors hanging in the doorways. In other words, all doorways were completely open.
Additionally, the windows on the north side of the house were all boarded up and there was no
running water or working gas servicing the house. When Ashford returned on February 7, 2001,
the condition of the house remained largely unchanged except, in addition to the boarded up
windows on the north side of the house, additional boards appeared on the front window and in
the front doorway. Also, a board that appeared to have, at one time, covered the rear doorway,
was removed, allowing Ashford to have an unobstructed view into the house.
Importantly, the history surrounding the house lends further credence to the belief that it
was abandoned. For years police received numerous complaints that the house was used for drug
trafficking. Most telling is defendant's own conduct. Indeed, on two occasions, defendant gave
a different address to identify his residence and did not produce a lease for the Ferguson
premises until the evidentiary hearing.
A review of the objective, verifiable facts and the circumstances in their totality indicates
the external appearance and internal condition of the house gave rise to a reasonable inference
that the house was utterly abandoned. Even presuming the validity of the lease presented by
defendant, defendant's own actions clearly establish that he had no reasonable expectation of
privacy in the Ferguson house that would entitle him to Fourth Amendment protection. Zahn,
supra at 448.
V. Conclusion
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We hold that the entry into and contemporaneous search of an abandoned structure is
presumptively reasonable because "the owner no longer has an expectation of privacy in the
property that he has abandoned." Rasmussen, supra at 725. Police officers do not need a
warrant before entering structures that, by all objective manifestations, appear abandoned.
Consequently, the officers did not tread on any interest protected by the Fourth Amendment
when they entered the Ferguson house without a warrant and observed defendant in plain view
placing crack cocaine into individual baggies. See Clark, supra at 629. Accordingly, we find
that the trial court clearly erred in finding a reasonable expectation of privacy by virtue of
defendant's leasehold interest alone.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ William B. Murphy
/s/ Christopher M. Murray
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