People v. Catania

v Catania PEOPLE v CATANIA (Calendar 7). 76742, 10, Argued April Docket Nos. 76743. No. 30, Rehearing Decided December 1986. denied Mich 1206. by jury Donald Catania was convicted a Berrien Circuit Court, J., Byrns, possession of Chester J. of cocaine with intent deliver, possession marijuana to and of intent deliver with Kelly Appeals, second offense. The Court M. and Mullen, (J. Gillis, P.J., reversed, dissenting), holding JJ. H. that evi- agent’s entry as a an dence obtained result of undercover ruse into the defendant’s home a have without warrant should been suppressed entry voluntary because his consent to the (Docket 71452). knowing people appeal. and No. The opinion by joined In an Boyle, Justice Chief Justice and Riley, Justice Court held: Williams agent Where into a home defendant’s an undercover solely by defendant, is effected the invitation of the albeit misconception agent’s identity purpose, under a as and protected there is no invasion of interest from unreasonable constitutions, long search seizure the state or federal so scope as the does not exceed of the invitation. probable required 1. Neither warrant nor cause is where police suspect’s Likewise, obtain a consent to a search. what a person knowingly exposes public, person’s tо the in the even office, subject protection; home or is not a of constitutional nor wrongdoer protected misplaced ais from confidence in associ- determining governmental ates. test for whether infringes upon protected interest is whether defendant expectation privacy object had a reasonable in the i.e., challenged search: whether the manifested defendant subjective expectation privacy, expectation whether society prepared recognize one that as reasonable. _was References 2d, seq., 84, 88, Am seq., Jur Searches and Seizures et §§ 46 et 90. gain entry affecting admissibility plain-view Officer’s ruse to as evidence—Modern cases. 47 ALR4th 425. See also the annotations in the Index to Annotations under Search and Seizure. 427 Mich 1963, case, holding that art is no Const this there basis protection greater than the federal constitution. affords § legitimately may obtain an An officer 2. undercover identity misrepresentation into a house invitation inside, long scope of invitation is purpose. as the Once so exceeded, require not a warrant observe the officer does not plain A between ruse entries view. distinction activities within illegal apparent incеption purposes the and en- at where are legitimate purposes determine apparently does not with tries validity entry. the case, entry the the of the undercover officer into 3. In this guise permission under of seek- his the defendant’s house with help ing not a under the disabled automobile was search for a 1, not exceed 11. The officer did § Fourth Amendment art by scope the defendant. No the invitation extended the of govern- by attempted entry exercise of was effected or forcible expectation authority. The defendant had no reasonable mental exposed voluntarily privacy to the extent he of in the activities occurred, agent. no no warrant was them to the Because search necessary. showing probable required, cause and no of Brickley only. result Justice concurred the Levin, concurring, stated that the defendant’s convic- Justice that formed the should reinstated because the evidence tion be not as a for conviction was obtained result basis the defendant’s warrant, a but as a result of defen- of a search without agent. misplaced in an The entice- confidence undercover dant’s analyzed by agent of should be ment the defendant entrapment not of of of and in terms search terms the defense seizure law. and Reversed and remanded. joined dissenting, Archer, Cavanagh, by Justice Justice entry person’s a stated that before a ruse into a home without challenge must there be a warrant can withstand constitutional

showing suspect criminal there was a rational basis activity which on within home. Such entries are based objective suspected and articulable facts that criminal taking place arbitrary has taken or is constitute intrusions. (1985) App 140 Mich NW2d reversed. — — 1. Searches and Seizures Ruse Entries. Undercover Officers agent is Where into defendant’s home an undercover defendant, solely of effected invitation albeit under misconception agent’s identity purpose, as to there is protected no invasion of interest from unreasonable search and constitution, long the state or so as seizure federal People v Catania Opinion of the Court (US Const, scope IV; Am does not exceed the the invitation 11). 1963, 1, art Const § Privacy. Expectation — 2. and Seizures Searches Reasonable determining governmental activity whether with test challenged infringed protected respect upon to a search expectation is whether the defendant a reasonable interest had i.e., privacy object in the of the search: whether the defen- subjective expectation privacy, dant manifested a expectation society prepared whether the was one that (US 1963, Const, IV; recognize as reasonable Am Const art §11). — —

3. Searches and Seizures Undercover Officers Ruse Entries. may legitimately An undercover officer obtain an invita- misrepresentation purpose; identity tion into a house inside, long scope as once so the invitation is not exceeded, require the officer does not a warrant to observe (US Const, plain IV; activities within view Am art Const 1,§ID. Kelley, Attorney General, Frank J. Louis J. Maloney, Caruso, General, Solicitor Paul L. Prose- cuting Attorney, Burhans, and John T. Assistant Prosecuting people. Attorney, for the Jesse) (by

Jesse & Jesse James K. for the defen- dant. police case, J. In this an undercover Boyle,

agent entry obtained into the defendant’s home feigning phone. During asking car trouble and to use the tele- agent

the half-hour that the was in marijuana home, the defendant offered her agent which the two left, smoked. The and a of search warrant was obtained on the basis evi- dence of criminal activities obtained Appeals in the while home. The Court of held that probable required support cause was to a ruse as the such one this case. Because find we Michigan no violation of the or the United States Constitution, we reverse. 427 Opinion op the Court

I PACTS County 10, 1981, Berrien Metro On March Squad Ward, attractive JoAnn an Narcotics sent young informant, Ca- to Donald undercover attempt purchase drugs. She to to home tania’s drug possible traffick- that there had been told ing an had worked as at his residence. Ward thirty at least times before. informant knocked at Catania’s Around 7:30 Ward p.m., telephone his because door and asked use back gave problems. feigned a fictitious She also of name for herself. car using telephone, she After way party, to a her car on her that she was said had just overheated, a little bit of and she needed discussing the fact it cool down. After time for that she was going party location, to, and its to a they suggested if wanted she Catania could smoke "joint.” point, At that the defendant a produced counter and over to kitchen walked tray upon taining baggie plastic con- there was which suspected marijuana, clip,” a "roach cigarette rolling papers. He then rolled some suspected cigarette marijuana and smoked it "smoking” cigarette,1 Ward with Ward. While if at that the defendant he lived house asked replied, himself, he "Yeah.” which produced tray marijuana, Before Catania Ms. Ward had not discussed asked drugs. mar- The defendant initiated the talk about any marijuana ijuana. Ward did not look for or see produced tray. the defendant before cigarette, smoking if After Ward asked she couple get "joints” possibly the road. could he didn’t The defendant declined because have merely smoking Ms. simulated the mari Ward testified that she juana. v Catania Opinion of the Court enough. Ward then asked if he knew whether (cocaine) any there around, was "coke” to which replied, you you the defendant "What do think fell into here?” Ward and defendant had some discus- meeting possibly sion about her him at a bar the evening. next She inwas the defendant’s residence period approximately for a total one-half hour. On the basis of the information obtained complaint, Ward, affidavit, and search warrant prepared by Squad. were the Metro Narcotics Upon searching police home, his found a vari- ety incriminating large garbage bag evidence: a marijuana, plastic bag filled with a bale of cocaine, cash, several thousands of dollars in drug paraphernalia.2 vаrious This evidence was (Mi rights After Mr. Catania had been warned of his Miranda Arizona, [1966]), randa v 384 US 86 S Ct 16 L Ed 2d 694 he unsuccessfully get arresting help surrepti tried to officer’s tiously disposing of the evidence: Q. that, Subsequent did Mr. Catania make statement you? Well, immediately A. after that he said that he would tell us say anything say,

—or that he wanted to and after that there I, no myself conversation until he was taken outside. Deputy Gast, assisting scene, who was us there at the took him Deputy get patrol outside the door and Gast went to car to bring upit away. to the door to take Mr. Catania standing We were outside the residence and Mr. Catania effect, something looked at me and said pretty to the said, "You look cool, you help can you talking me out?” I "What are Also, giving about?” I arguing said—he was us a hard time and prior him, cool, with us a lot "Hey, just to that I told be argue give don’t with us every- and don’t us a bad time and thing going right.” said, cool, pretty to be all He "You look you help can says, says, me out?” you And I "What do mean?” He my said, "There’s some shit in you bedroom.” I "What do says, you get mean shit?” He me?” I "Grass. Can it out of there for said, police officer, "I say anything am a don’t more to against you me because it will be used in a court.” patrol At that put time he was taken to the car and in. Q. you At say anything the time that said that he should not you you officer, further to because were a did he make any response to that? you A. Yes. Do want his exact words? Opinion of the Court trial, he was convicted at and admitted Catania’s of with intent possession of count jury one possession of with and one count deliver cocaine marijuana. intent deliver Ms. Ward’s Defendant claims his consent know- voluntary into was not and his home his home ing presence and that Ms. Ward’s warrant. unconstitutional search without an Therefore, urges of fruits Catania war- pursuant obtained to a search —the evidence investigation sup- based Ms. Ward’s upon rant —be Appeals A Court of split panel pressed. Catania, 755; 366 agreed. People v App 140 Mich (1985). find no Because we violation NW2d Constitutions, we Michigan and United States and Appeals reverse the decision the Court reinstate the defendant’s conviction.

ii upon The initial focus is whether either Constitu- Fourth Amendment the United States implicated tion or art 11 is this Const § The provides: case. Fourth Amendment right people The to be secure in their houses, effects, persons, sonable papers, against unrea- seizures, shall vio- searches not be lated, issue, upon prob- and no Warrants shall but Const, cause .... Am able IV.] [US anаlogous Michigan The provision of the Constitu- provides: tion houses, person, possessions papers The person

every shall be from secure unreasonable say? What did he Q. said, "Well, A. He fuck it then.” Catania Opinion of the Court any to search No warrant and seizures. searches place things person any issue shall or or to seize probable describing them, without nor without provi- supported by cause, sions or affirmation. oath to bar construed shall not be of this section proceeding any any criminal from evidence explosive drug, bomb, firearm, narcotic peace weapon, dangerous officer seized other outside state. dwelling curtilage in this house the § 11.] [Const art law, a seizure and search letter” Under "black unreason is considered warrant without a search invalid, it falls per unless se, is thus able specifically and well-de established "a few within Mincey exceptions.”3 Arizona, 437 US v lineated (1978). L 2d 290 2408; 57 Ed 385, 390; 98 S Ct nor a warrant neither in which situation One police required probable the is where cause suspect’s In to a search. consent obtain the S Ct Bustamonte, 412 US Schneckloth (1973), considered the Court 2041; 36 L Ed 2d required under the constitu- nature of consent the tion where agents conducted a known obtaining per- the after without a warrant search mission of the requirement suspect. Rejecting relinquish- suspect make "an intentional that ment or abandonment 235, the p right,” id., of a known showing traditional that a the Court held voluntariness was sufficient: custody subject [W]hen of a search is not the attempts justify a search on

and the State dispute description of the warrant this they Current commentators few, many exceptions, argue than are rather and instead Haddad, See, e.g., Well-delineated cloudy clear. rather than cause, sham, probable L exceptions, claims of 68 J Crim and fourfold (1977) (cited Grano, Perplexing questions about Criminology & activity, Fourth Amendment Fourth Amendment issues: three basic cause, requirement, probable L & Crimi the warrant 69 J Crim 425, 428, [1978]). nology n 31 427 Mich 447 Opinion of the Court consent, the ‍​‌‌​​​​‌​‌​​​​​‌​​‌​​​​​‌‌​‌‌​‌‌‌‌​‌‌‌‌‌‌‌​​​​​​‍Fourth and Fourteenth of his

basis require it that the Amendments demonstrate given, and voluntarily in fact consent was result of duress coercion, express implied. or deter- question is a of fact be Voluntariness [Id., pp .... from all the circumstances mined 248-249.] of the Schneckloth Court was concern primary governmen- from suspect’s

to ensure the freedom Id., p 228. agreeing tal to the search. coercion government is under- cases where cover, coercion about which government not present. Schneckloth Court was concerned is while Schneckloth Indeed, assumed that a search occurred, of undercover type commentators on in this case differ on whether activities involved from consensual ruse removes of the Fourth Amendment alto- protection search) (no exception or is an to the war- gether Gardner, Consent as See, e.g., requirement. rant critique of a scope bar to Fourth Amendment —A 443, theory, common 71 J Crim L & Criminology Governmental Warner, Comments, (1980); 443-444 searches, in consent L R 57 34 U Miami deception (1979). sort, We believe that in cases of this where agent solely by an undercover is effected entry by defendant, under the invitation albeit misconception agent’s pur- as to the identity is no Fourth Amendment or Const pose, there 1, 11, long art so as does activity § scope major- not exceed the of the invitation. The See, agree. ity considering question of courts this gain entry ruse to as Officer's Anno: generally, affecting admissibility plain-view evidence— 2(a). cases, Modern 47 ALR4th § A review of the relevant United States Catania v Opinion of the Court supports Hoffa United this view.4 Court cases L States, 408; 17 Ed 2d 374 385 US 87 S Ct (1966), clearly parallels case. the instant most associates, Partin, became one of Hoffa’s Teamster guise government of friend- informant. Under a ship, private privy ostensibly conver- Partin was in which Hoffa in Hoffa’s hotel suite sations planned tampering. jury jurors in his trial to bribe the relayed to the Partin the conversations against government in the sub- testified Hoffa tampering. sequent jury A four-member trial for majority5 was no Fourth found that there Hoffa Justice Stewart first Amendment involved. protec- scope of Fourth Amendment described the tion: protects Amendment is the the Fourth What upon places he himself

security man relies when protected constitutionally property within a or his area, office, hotel room or it home or his his be his unwar- protected There he is from his automobile. [Id., p governmental intrusion. ranted 301.] turned to the crux of Stewart Then Justice question said, Amendment consent Fourth it member of has ever this Court nor “Neither York, upon Berger S 388 US The dissent’s reliance 1873; v New (1967), Berger misplaced. dealt with 18 L Ed 2d 1040 is Ct New York allowed searches and eavesdropping it invalidated because statute which was upon seizures based warrants which did " searched, persons place 'particularly and the to be describ[e] ” Const, IV; supra, pp things Berger, Am 55-60. The to be seized.’ US particularly noted that the flaws of the New York statute Court occurred within the context of an unconsented unconsented permits entry: "[I]t any showing exigent entry without circumstances.” Id., Berger p entry, 60. Since the instant case involves a consensual entry requires point. not on either a warrant or an There is no debate that an unconsented exception requirement. warrant Stewart, Brennan, Harlan, opin joined in the Justices and Black separately, dissented while ion of the Court. Chief Justice Warren Justices Clark and improvi Douglas that certiorari had been believed participate. granted. dently did not Justices White and Fortas four-person majority. opinion of the Court was thus that of a 427 Mich Opinion of the Court expressed the view that the Fourth Amendment protects wrongdoer’s misplaced belief that a person wrong- voluntarily to whom he confides his doing p Id., it.” 302. will not reveal The Hoffa opinion essentially held that citizens assume the may risk that agents. their associates be undercover p Id., 302. States, 206;

In 87 S Ct Lewis v United US (1966), 424; 17 L Ed a case decided the 2d rejected argu- Hoffa, same term as the Court "any that, warrant, official intru- ment sion absent upon privacy of a home constitutes a Fourth suspect violation and that the fact the Amendment the intrusion cannot be held a

invited waiver the invitation was induced fraud when deception.” p majority Id., and 208. The brief opinion by Chief Justice Earl Warren focused on specific case and held that facts of Lewis there no search because Lewis had converted inviting center, his home into a commercial clients illegal agent business, to enter to conduct nothing had seen that Lewis had not intended p Id., to see. 210. scope term, The next the Court considered the protections, reaffirming Fourth Amendment States, Hoffa and Lewis results. Katz v United (1967), US 88 S Ct 19 L Ed 2d 576 physical trespass the Court abandoned the test6 for determining protected interests under the Fourth years some the Court was of the view that for there to [F]or physi

be a Fourth Amendment search there have must been "constitutionally protected cal intrusion into a area.” These areas were those enumerated in the Fourth Amendment itself: "persons,” including individuals; the bodies and attire of "houses,” rooms, including apartments, garages, hotel business offices, stores, warehouses; letters; "papers,” such as "effects,” Israel, such as automobiles. LaFave & Criminal [1 Procedure, 3.2(a), p 162. Citations § omitted.] People v 457 Catania 1986] Opinion of the Court Instead, govern- Amendment. the Court held that monitoring telephone ment calls made from a public telephone requiring booth was a search warrant under the Fоurth Amendment because monitoring violated Katz’ expecta- reasonable accepted tion of The test7 privacy. currently 8for in- determining governmental whether fringes upon a is set forth in protected interest in Justice Harlan’s concurrence Katz: requirement, is a twofold first that a [T]here person tation of (subjective) expec have exhibited an actual and, second, privacy expectation recognize society prepared be one that is as [Id., p "reasonable.” 361.[8] requirement, expec- The first a subjective actual tation of is privacy, clearly implicated cases like the one at bar. The Katz observed that majority person public, to the knowingly exposes "[w]hat office, even his own is not a subject home Id., protection.” Fourth Amendment 351 p (citing Lewis). White, Katz, concurring Justice ob- served in a footnote: speaks

When one man to another he takes all 7 See, Ciraolo, e.g., —, —; 1809, 1811; California v 476 US 106 S Ct (1986): 210, 90 L Ed 2d analysis The touchstone of Fourth Amendment is whether a

person "constitutionally protected expectation has a reasonable States, 347, (1967) privacy.” Katz v United 389 US (Harlan, J., concurring). posits two-part first, inquiry: Katz subjective expectation pri- has the individual manifested a Second, vacy willing object challenged society in the search? recognize expectation as reasonable? See Smith Maryland, 442 US S Ct 61 L Ed 2d [99 (1979). 8Ironically, Justice Harlan would later retreat from the test which opinions. White, became the basis of later See United States v 401 US (1971) 768-795; (Harlan, J., 91 S Ct 28 L Ed 2d dissenting) and n 8. 427 Mich op Opinion the Court including doing, in so ordinarily inherent

the risks speaks will he the man to whom the risk that Fourth heard. The public what he has make (or against unreliable protect Amendment does [Id., p 363. Citing law-abiding) associates. Hoffa.] their other- open Lewis to choice of Hoffa and undercover the view an areas to private wise creating an area as thus viewed informant can be Amendment. of the Fourth protection outside the White, 745; 91 S Ct States v 401 US United (1971), States the United L Ed 2d 453 1122; 28 question the again faced Court once government undercover evidence obtained White, informant wore government In agents. his which enabled transmitter concealed radio to be monitored the defendant with conversations occurred conversation agents. One government restaurant, home, one in a in defendant’s the or home. the informant’s car in either the rest at testify was unavailable the informant When conversations trial, monitored the agents the who White in was question testify. allowed to were the conversa- the electronic transmittal whether Fourth Amendment. invalid under the tions was failing while upheld activity, the Again Court on agreement why to achieve permissible. opinion9 affirmed plurality

Justice White’s assume of Hoffa’s conclusion that citizens validity government may their associates be the risk joined Burger in Stewart and Blackmun Chief Justice and Justices opinion. the result because Justice Black concurred in Justice White’s intangibles were, view, spoken in his outside like the word (citing protection Justice of the Fourth Amendment. 401 US 364). Katz, supra, p in concurred Justice Brennan Black’s dissent the White result because, view, inapplicable to in his Katz was However, Katz, p 755. before the decision in behavior which occurred monitoring that after Katz electronic Justice Brennan observed Id., require pp 755-756. should a warrant. v Catania 1986] Opinion op the Court made to such informants and that communications of the Fourth protection agents are within Amendment: States, (1966), which Hoffa v United 385 US Katz, held that however

was left undisturbed apparent col- may trust an strongly a defendant respect are not league, expectations this his when it turns protected by the Fourth Amendment agent colleague government is a out regularly сommunicating the authorities. with circumstances, legitimately pro- "no interest these involved,” for Fourth Amendment is tected that amendment affords wrong- protection no to "a he misplaced person that a to whom doer’s belief wrongdoing his will not reveal voluntarily confides States, it.” Hoffa v United at 302. No warrant required in such circum- "search and seize” stances, it when the Government sends nor is his home a secret who conceals defendant’s narcotics from purchase makes a identity and States, 385 US 206 Lewis v United accused, (1966), defendant, agent, unbeknown to the or when the same equipment to record carries electronic gath- words the evidence so the defendant’s Lopez v United ered is later offered evidence. States, 373 US 427 10 L Ed 2d S Ct [83 (1963). [Id., p 749.] constitutionally be Since such encounters could the written down or otherwise communicated opin- to outsiders under the Court’s earlier ions, White reasoned that the simultaneous Justice of a conversation a con- electronic broadcast no to outside listeners was senting participant Id., 751-752. pp different a constitutional sense. the same: essentially The risk assumed is illegal Inescapably, contemplating one activities companions may that his be must realize and risk reporting doubts police. sufficiently If he to the 427 Opinion of the Court trustworthiness, very association will their if But he has or never materialize. probably end doubts, them, risks doubt he allays or or ‍​‌‌​​​​‌​‌​​​​​‌​​‌​​​​​‌‌​‌‌​‌‌‌‌​‌‌‌‌‌‌‌​​​​​​‍what no has, his course his. In terms of what the risk is be, say, we are not do or what he will will will distinguish between unpersuaded that he would probable on the one hand probable informers [Id., p on the other. informers with transmitters 752.] prepared plurality Furthermore, was "not has no constitutional a defendant who hold that right testimony informer’s unaided to exclude the privilege a Fourth Amendment nevertheless has against the events in version of a more accurate p question.”10Id., 753._ dissent, repudiated apparently Justice Harlan In an extensive privacy. protected subjective expectation of Katz for areas of test view, monitoring requires third-party a even if warrant

his electronic Id., Criticizing p participant consents. 769. to the conversation must, analysis plurality’s my analysis,” wrote that "risk Harlan "[t]he legal view, expectations subjective or expecta for transcend the search Id., p subjective assumptions 786. The attribution of of risk.” past citizenry, upon "the customs and values of the based tions id., protection present,” of the Fourth should not restrict Instead, view, question, there in Harlan’s critical "[t]he Amendment. fore, Constitution, government, system in the our as reflected is whether under impose on our citizens the risks of the we should protection of a listener or observer without at least electronic warrant determination, sug requirement.” Harlan Id. To make this gested balancing test: view, must, assessing question my This be answered practice likely particular and the extent of its

nature impact the against security on the individual’s sense balanced utility technique enforcement. of the conduct as a of law significantly jeopard- For those more extensive intrusions that ize the sense of Fourth Amendment self-restraint least warrants should security paramount concern of which is the liberties, more than I am of the view that required at the law enforcement officials is necessary. [Id., pp be 786-787.] view, requirement balancing In Harlan’s third-party greater resulted in a warrant eavesdropping privacy was far because the effect on informants, involving recorded their than that even those who Douglas dissented Justices and Marshall also own conversations. separately in White. 461 v Catania Opinion op the Court spate of Since the undercover cases which sur- 1970, faced between 1966 and the United States problem directly Court has faced the However, of instant case. later cases indicate assumption White that the Hoffa and of risk anal- yses determining are valid whether there is an expectation privacy. of of invasion a reasonable e.g., Maryland, See, Smith v 442 US 99 S Ct (1979) (no expec- 2577; 61 L 220 Ed 2d reasonable privacy in the dialed on a tation telephone) numbers home (five-member majority); United States Miller, 435, 442-444; 96 Ct 48 Ed US S L (1976) (no expectation privacy 2d in bank reasonable records) (seven-member majority). courts, various federal circuits and however, state several recently validity dealt have with entry via evidence obtained a ruse without a war- agent’s purpose rant where the deceit involves identity. as well as

Generally, appeal the federal circuit courts of upheld have evidence obtained virtue of ruse agents. entries effectuated undercover Several argument rejected very circuits have made entry by govern- this case: that where is obtained deception concerning identity mental and the "purpose” entry, entry is an unconstitu- search, tional and the fruits must be suppressed. example, For in United States v (CA Wright, 1981), upheld F2d the court supported evidence obtained evidence of narcotics dant a warrant with seen when the defen- opened help govern- his motel room to agents having they ment had who claimed were Likewise, Scherer, car trouble. United States v (CA 1982), upheld 673 F2d 176 court upon search based evidence firearm violations agents seen while undercover of the Bureau prop- Alcohol, Tobacco and Firearms were on the 427 Mich Opinion the Court erty purportedly In blinds. United to build duck (CA 1980), Baldwin, the 621 F2d 251 States approved an under- obtained court evidence agent home as in the defendant’s who lived cover employee/associate of the defendant. an approving entries, noted the courts In these ruse protect not Amendment "does that the Fourth misplaced wrongdoers confidence their from p associates,” id., 252; defendants invited that the exceeding agents and, the enter without the scope agents illegal invitations, the saw of the supra, p Scherer, such; or evidence of activities agents Wright, supra, p saw 604. Because illegal only which were revealed activities plain view of were the defendants which scope agents of the invita- while within activity: tions, Fourth Amendment there was no exposes public person knowingly to the "What subject office, is not even in his own home or Wright, supra, p protection.” Fourth Amendment Katz). Wright, quoted (quoting the court finding Fourth case no from a Ninth Circuit Amendment violation where an undercover allegedly up a deal: entered to set narcotics may legitimately obtain an invita officer [A]n misrepresenting tion into a house his inside, If identity .... he is invited he does not enter, probable he does not need a need cause warrant, and, quite obviously, he does need to authority purpose. inside announce his the Once house, scope he cannot of his invita exceed ransacking generally, by seize tion the house but he [Wright, supra, may anything plain view. Glassel, United States v Quoting p 604. F2d (CA 1973). 143, 145 Citations omitted.] rejected arguments Thus, these courts federal the Fourth ruse were under entries invalid agents merely had en- because the Amendment People v Catania Opinion of the Court gaged alleged purpose in deceit vis-á-vis the entry as well as their identities.11 Poland,

In State v 132 Ariz 645 P2d 784 (1982), Court of Arizona considered whether evidence obtained via a ruse with- agents out a warrant undercover who entered ostensibly legitimate purpose validly for an During admitted. home, surveillance of Poland’s agents learned that the home Poland was renting They was for sale. contacted the realtor posing prospective buyers, and, аs toured the During tour, home. evidence was obtained probable which was used to furnish cause for a p Id., search warrant. 277. The Arizona court rejected agent’s entry the assertion that an initial violated the Fourth and Fourteenth Amendments by "misrepresenting because it was effected his identity purpose . . . Id. In the view of that purpose agent’s court, the true of an undercover entry always suspect different than believes; the 11 considered, Other varying variations have been with results. government agent Where defendant, government agent the by is known as a the agent by deceiving but the obtains evidence the defendant agent’s purpose, as to the evidence where the e.g., cases, suppressed the Fifth Circuit has the agent intentionally See, deceived the defendant. States, (CA 1968). 5, Alexander v United 390 F2d 101 In recent upheld the Fifth Circuit has admission of evidence where a that, totality circumstances, determination is made consent to under a of the the government agent allow a search a known was volun tary despite being Davis, induced deceit. See United States v 749 (CA 5, 1985); Andrews, (CA F2d 292 5, United States v 746 F2d 247 1984). "typical” In involving the more agent situation an undercover who obtains pursuing evidence in the avowedly illegal purposes, course of generally uphold thе courts to the defendant’s admission of the evidence as obtained due "misplaced See, e.g., confidence.” United States v Haden, (CA 1968) 7, (drugs 397 F2d 460 taken from defendant’s car at direction); (cocaine Glassel, defendant’s chase); supra pur- United States v Harris, (CA 1983) ("narcotics United States v 713 F2d 623 home). meet” at defendant’s When the evidence is obtained via a scope search that invitation, exceeds the of the the evidence is suppressed. See, e.g., Lyons, App 284; United States v 227 US DC 706 (1983); States, F2d 321 65 L Ed 647 261; Gouled v United 255 US 41 S Ct (1921). 427 Opinion op the Court government proper question is the whether the scope suspect’s stays intrusion within the consent: purpose the as the reliance on [Defendant's permissible and im- distinguishing factor between permissible searches is, believe, misplaced. In we the enforcement entry, law the case a deceitful will, definition, be different agent’s purpose contemplated suspect. the the than case, agent may only see what the instant To hold expect prospective buyer would to see. the case of validity the of the search in purpose depends upon whether the entry deceitful of the premises was entering suspect him to allowed

same as the reason enter, entry all searches make deceitful would distinction, then, unconstitutional. between impermissible on permissible intrusions turns deceit, agent’s suspect, as result of the what prem- entering chosen to show the one has ises. [Id., pp Emphasis 277-278. added.] Although Arizona grounds, reversed convic- court obtained via tion on the evidence other upheld Katz, because, under was thus ruse " person exposes public, knowingly '[w]hat subject office, is in his home or even own ” p (citing protection.’ Id., Fourth Amendment supra). People Nisser, Katz, See also v Colo (1975). Ahart, 542 P2d 84 But see State 1982) (ruse (Iowa, entry requires justifi- NW2d that is able and reasonable belief occurring) criminal (Alas, Guidry State, 671 P2d 1277 1983) (search upheld legal or no moral where compulsion entry occurred, in- was not home scope invitation, tended, not officers did exceed canvass). and the was a random Hi case, In this Donald Catania invited Ward v Catania Opinion Court any into his kitchen. Ward did not use exercise of governmental power authority to effect her entry. home, While in Catania’s Ward did not exceed boundaries of the invitation extended displayed marijuana to her. Catania to Ward and invited her to smoke it with him. Under these circumstances, no search Fourth under Amendment art to the United States Constitution or Michigan

1, 11§ Constitution оccurred. Donald Catania invited JoAnn Ward into his exposed possession marijuana home his supra, p 351, States, her. In Katz v United Supreme United States Court observed that person knowingly exposes public, "[w]hat a to the subject office, even in his own home or Fourth Amendment ingly exposed marijuana not a protection.” Catania know- only JoAnn Ward. The thing that Catania did not know that Ward was an undercover informant. Should this Court invalidate the later search on this basis? We supra, p States, believe not. In Hoffa v United majority opinion the four-member noted that "[njeither this Court it nor member of has expressed ever the view that Fourth Amend- protects wrongdoer’s misplaced ment belief that person voluntarily to whom he confides his wrongdoing too, will not So, case, reveal it.” in this misplaced Donald Catania’s Ward would not reveal his belief JoAnn illegal is not activities protected by Michigan the United States or Consti- upon inviting Catania, tutions. Ward into his longer expectation home, no had a reasonable privacy in what he revealed to her. In the Katz dichotomy, longer subjective he no had either a expectation privacy recog- society or one protected. nizes as agree

We with the observation of the Arizonа supra, Poland, Court State v that a Mich 447 427 Opinion op Court illegal pur- entries where ruse distinction between poses apparent inception and entries at the are legitimate purposes apparently not de- does with termine the validity entry. an Even where agent purportedly an enters undercover purpose illegal avowedly purpose, true of agent gathering in- to convict those evidence — ideally, is, al- an in volved the criminal activities — requiring only ways reason for concealed. give of of "notice” ahead time undercover illegal in activities an the defendant’s interest give start” on the defendant a "head would be to "game.” and seizure search holding for 1, § 11, There no in this case basis permits Michigan Constitution, art greater protection the United States Consti- than People 1, Smith, 20-28; tution.12In (1984), adopted the "reason- this Court NW2d able expectation privacy” standard Katz protected 1963, Const under define the interests 1963, 1, art 1, § 11. We find no basis Const art § that Mr. had a reasonable 11 to conclude Catania engaged expectation privacy in he presence. case, In the instant in in Ms. Ward’s he assumed a risk when offered Donald Catania drugs stranger communi- to a total that she would persua- no cate what she saw to world. Since interpret advanced to Const sive reason has been prohibiting 1963, 1, § al- art 11 as the activities decision, Washington Supreme out the recent Court set following guide determining criteria to the bench and bar in whether provided independent protection an for the the state constitution 1) language rights the textual the state individual citizens: 2) constitution, significant parallel provisions textual differences in 3) constitutions, state constitutional and com the federal and state 4) preexisting provision, history, state law the constitutional mon-law 5) constitutions, federal and state structural differences between the 6) particular local concern. State v and matters of state interest or (1986). Gunwall, —; 811-813 Similar 106 Wash 2d 720 P2d determining the would aid this Court in future cases in considerations independent proper scope of state constitution. our v Catania Opinion of the Court Amendment,13 lowed this case under the Fourth interpretation we decline such an this case. See People Nash, v 208-215; 418 Mich 341 NW2d (1983). 439 denying court,

The trial the defendant’s motions suppress, legal applied proper reasoning the the facts of this case: adage longer There is an old that a secret is no person

a secret person’s can be morе than when one knows it. A regards privacy secret and his thereto public by voluntary made his own actions. Now, person when a voluntarily allows another home, person privacy within that secrecy into his he waives and his person may sofar what as observe scope permission given. the the He takes person is; actually for what he or she "snitch,” case, "gossip,” a or in an this undercover agent. plain course, At point, upon entry, the applies. view doctrine However, us, in the case before based on the record, marijuana the originally plain was not in in view, placed but it later voluntarily plain was part view Mr. Catania as a of his hospitality. There is no evidence that at time the under- agent anyway scope cover exceeded this her, permission given going such as into another room, opening action, a drawer or some similar that she took anything out of house. Likewise, is not entry this use of some a case where was governmental force, obtained as to no otherwise, such posing claiming undercover right building inspector. fact, as a there was right, contractual, assertion of governmental or entry by agent. the undercover She 13 alleged Where coercion or duress is to have inducеd the commis crime, proper "remedy” entrapment. sion is the defense of People Turner, (1973), Under NW2d this Court adopted "objective” entrapment an test which considers whether reprehensible police conduct could have induced commission of ready willing entrap crime one not to commit it. Whether ment occurred under the facts of this case should be considered on remand. Mich Opinion Levin, to enter to had car trouble. She asked

claims she phone in. allowed use nothing Therefore, would this Court finds which in this case on unreasonable search constitute an this record. IV

CONCLUSION into Donald Catania’s entry of JoAnn Ward not a under home without a warrant was "search” Amendment United either Fourth Michigan 11 of the Constitution ‍​‌‌​​​​‌​‌​​​​​‌​​‌​​​​​‌‌​‌‌​‌‌‌‌​‌‌‌‌‌‌‌​​​​​​‍or art States § Mr. the home with Constitution. Ms. Ward entered purpose. for a hidden permission, Catania’s albeit home, did not exceed Ward While Catania’s There of extended Catania. scope the invitation attempted14 by effected or no forcible was Mr. authority power. of governmental exercise expectation privacy of had no reasonable Catania Ms. he his activities exposed to the extent occurred, was no warrant Ward. Since no search showing necessary. no оf cause was required, and Therefore, Appeals of the Court of judgment reversed, the Court of and the case is remanded to remaining of the issues. consideration Appeals C.J., J., Riley, Williams, with and concurred Boyle, J. J., only. concurred the result

Brickley, (concurring). J. Donald Catania was con Levin, 1 possession cocaine victed of with intent deliver Inc, Barlow’s, L Ed Marshall v 436 US S Ct Cf. (1978) (search 2d expectation invalid reasonable without a warrant in because government privacy premises osha business vis-á-vis area). inspector despite entry employees into work maintained (2)(a)(iv). 14.15(7401X1), 333.7401(1), (2)(a)(iv); MCL MSA v Catania Levin, Opinion marij possession with intent to deliver and felony as a offender.3 second uana,2 Appeals stating reversed, The Court of that had warrantless search Catania’s there been a and that had not consented to the search. home he agree analysis of I the Court of While Appeals, with join

I in the reinstatement of Catania’s the information that formed conviction because basis for Catania’s conviction was not obtained imparted search, result was as a but rather by Catania to the undercover as a result of misplaced confidence her.

i County Squad The Berrien Metro di- Narcotics eighteen-year Wаrd, an rected JoAnn old law en- student, forcement knock on the door of Cata- door, nia’s home. When Catania answered feigned experiencing she Ward car trou- telephone. ble asked to use the After she had bogus call, a made Ward and sat at Catania then kitchen table. Ward initiated discussion "partying”; about told that she she Catania was on way party to a her told him the location of party. suggested they Catania to Ward that smoke "joint” marijuana. Catania walked over to the tray kitchen counter where there was with a plastic baggie containing suspected marijuana, a clip,” cigarette rolling papers. "roach some proceeded cigarette suspected Catania to roll a marijuana which he and Ward then smoked. they cigarette,

After had smoked Ward couple "joints” if asked she could obtain a of for the road. told Catania her that he didn’t have enough. Ward if then asked Catania he knew 333.7401(1), (2)(c). (2)(c); 14.15(7401X1),

2 MCL MSA 14.15(7413). 3 MCL MSA 333.7413; 427 Opinion by Levin, any "coke” around. Catania there was whether replied, you you into here?” think fell "What do possibility of Catania discussed Ward and night. spent ap- meeting She at a later that bar proximately hour in Catania’s residence. one-half that Ward had the information

On the basis of police obtained, out affidavit for a officer swore an given stating had that Catania a search warrant cigarette, marijuana saw that Ward Ward a rolled marijuana quantity rolled of from which Catania suspected cigarette marijuana there was following marijuana return, his home. The on warrant issued that execution affidavit, the search baggie marijuana. One of included a warrant the officers who executed search stating out an affidavit for a search warrant swore place to be that he "saw in bedroom suspected weighing marijuana searched bale of lbs, scales, 50 and 100 I also saw a set between weighing marijuana, commonly I out also used containing powdery plastic baggie a white saw a suspected cocaine; there also was substance be appeared ledger quantity books and a what to be following paper currency.” return, U.S. warrant, execution that search included one marijuana plastic baggie contain- bale of one ing cocaine.

ii agree Appeals I with the Court of that Donald expectation privacy had a Catania reasonable agree his home. I he also did not consent allowing to search his home when he admitted Ward on a ruse.

The decisions of the States United 471 Catania Levin, Opinion In point.4 аre not Court on consensual searches torts, interfer- consent to an intentional the law if "the or is invalid person property ence with the nature mistaken about consenting person was con- intended quality invasion give If to another a box person duct.”5 were poisoned, it and that knowing that is candy it poisoned, is unaware is person other to person providing candy subject liability to the the other did not consent person because providing the person kind of invasion which the intended.6 candy elaborating on the common-

Judicial decisions decep- indicate that burglary law elements means used to consent to enter Cata- tive obtain attempted define what constitutes a The Court first Carolina, 543; 1788; Bumper (1968). valid consent in v North 391 US 88 S Ct given to a 20 L Ed 2d 797 search after the official that he had failed to meet its and there cannot be consent.” The Court held ineffectual consent conducting falsely the search had asserted possessed prosecution a search warrant. The Court found the "freely proving that the consent was burden voluntarily given” and concluded that there is coercion "[w]here Id., pp 548-550. Bustamonte, In 93 S Ct 36 L Ed 2d Schneckloth v 412 US (1973), custody in even the Court held that consent one not coercion, may voluntаry though if be there is not undue right consenter was unaware of his to refuse consent. The Court said: only subject We hold that when the of a search is not in custody of his attempts justify and the State a search on the basis consent, require the Fourth and Fourteenth Amendments voluntarily it demonstrate that the consent in fact was given, implied. from all the coercion, express and not the result of duress or question Voluntariness ais of fact to be determined [Id., pp .... circumstances 249.] government obligation The potential thus had no affirmative to inform a right consenter of his to withhold consent. The discussion in govern- Schneckloth was limited to searches which a uniformed openly private premises. ment official primary seeks consent to enter authority concern in Schneckloth was use of cloak of person consenting coerce a into to a search. (5th Keeton, ed), 18, 114; Torts, p & Prosser Torts 2 Restatement § 2d, 55, p 88. § 6 Id., 18, pp 119-120. § Opinion Levin, J. At render the consent invalid. nia’s house should burglary of, law, the crime consisted common breaking entering.7 among elements, other gained by Entry con fraud deemed to be a breaking.8 Case see LeMott’s (1650), structive commentary intending Rep Eng (1650), thieves 1073, 1074

84 the door locked and to rob a house found speak pretended they to with tо the house went opened door and the owner. A servant they being then the owner, this the "and entered and robbed night adjudged time, in bur this persons hanged; glary, being for their intention and the open getting rob, a false to the door they legis, pretence in this was fraudem and so guilty burglary Similarly, . in Ann . . .”9 were burglary Case,10 Hawkin’s a thief was indicted for house she induced after she robbed a which had open pot boy by promising to him a of ale. The entry by thief fraud. court said that obtained Subsequent principle case law has extended this generally rather in which entrance has cases 11 gained by trick or been means some artifice. Although activities did not constitute Ward’s burglary, common-law she did not intend because felony, home to commit her into Catania’s gained misrepresenting entry by was, because she purpose seeking breaking entry, her mon law. com- at

hi States, In Lewis v United 385 US 87 S Ct (1966), L 424; 17 312 939 Ed 2d reh den 386 US Scott, Law, 96, p LaFave & Criminal 708. § 8 Id., p 709. 9Id., p 1073. 10 East, (1704). the Crown Pleas of (3d Perkins, Blackstone, ed), p Criminal Law see also (1898). England, pp

Commentaries on the Laws of 226-227 v Catania Opinion Levin, (1967), agent, by misrepresent- a federal narcotics ing identity stating willingness his his purchase narcotics, was invited into defendant’s home where on two occasions a narcotics sale was agent during consummated, neithеr of his seeing, hearing, taking anything visits not con- templated by part necessary the defendant as a illegal his business. The narcotics were introduced objection, evidence, over defendant’s at his trial. The United States Court held that Fourth Amendment was not violated hence narcotics were admissible evidence: case, hand, In the instant on the other

petitioner agent invited the undercover to his specific purpose home for the executing a feloni- ous sale of narcotics. only Petitioner’s concern was agent willing purchaser whether was a who Indeed, pay agreed price. could in order patronage convince the petition- that his at desired, petitioner that, er’s home was told him if regular there, he became a customer he would in the future no bag receive an extra of marihuana at cost; petitioner additional in and fact did hand over bag an extra at a second sale which was place consummated at the same in and precisely the petitioner’s During same manner. neither of his visits to see, hear, agent home did the or take anything contemplated, that was not in and fact intended, by petitioner necessary part as a of his illegal business. . . . The fact that peti- undеrcover entered tioner’s home compel does not question, a different conclu- sion. Without the home is accorded the range full of Fourth protections. Amendment See States, Amos v United 255 US 313 S Ct [41 (1921); L Ed States, Harris v United 654] US 145, 151, (1947). n 15 S Ct 91 L Ed [67 when, here, But as the home is converted into a commercial center to which outsiders are invited purposes for transacting of business, unlawful 427 Dissenting Opinion Archer, it sanctity no than if greater is entitled to business car, store, garage, a or on on in a a were carried in government agent, A the same man- the street. accept private person, may an invitation ner as a upon premises may enter do business contemplated by the very purposes occu- for the that, course,

pant. this does not mean whenever Of and the locus is is obtained invitation entry characterized as authorized business, agent is place a of an general for incrimi- conduct search [Id., nating materials .... at 210-211.] hear, Lewis, "see, Here, in Ward did not as not Cata- contemplated.” take that was anything A cigarette. marijuana nia Ward a search offered permitting warrant was obtained on that basis the basis of what only marijuana. search On warrant, executing in that search was discovered search warrant was obtained аnother offering cocaine evidence ‍​‌‌​​​​‌​‌​​​​​‌​​‌​​​​​‌‌​‌‌​‌‌‌‌​‌‌‌‌‌‌‌​​​​​​‍was obtained. Ward chose make marijuana, of Catania Ward joint it cannot be possession marijuana; aware of his about, seeing, hearing taking said that Ward’s from home of his with her Catania’s information contemplated.” not possession marijuana "was If a marijuana Catania had offered Ward cigarette, had and she rather observed marijuana view,” "plain I agree would with Court Appeals that as a the evidence was obtained result of a suppressed. warrantless search and should be as a evidence here rather obtained result confidence in misplaced Ward.12

I with agree Ward’s entice- majority ment of Catania should analyzed be terms entrapment defense and not terms of search and seizure law. (dissenting), The

Archer, underlying facts (1966). Cf. Hoffa v United States, 385 US 87 S Ct 408; 17 Ed 2d L People v Catania Dissenting Opinion Archer, J. v Cata- this.case are set forth detail nia, (1985). App NW2d pertinent may briefly facts be stated.

Defendant convicted jury possession was deliver, 333.7401(1), of cocaine with intent to MCL 14.15(7401X1), (2)(a)(iv), (2)(a)(iv); MSA posses- deliver, sion of marijuana with intent MCL (2)(c). 333.7401(1), 14.15(7401)(1), (2)(c); MSA Defen- dant received a concurrent eight sentence of for the forty years possession of cocaine offense and fivе to eight years possession for the of mari- juana offense.

Leave to appeal granted was in this case to determine whether defendant’s consent to entry to police his house informant was rendered invalid where the consent was obtained by decep- tions as to the informant’s identity purpose.

We would hold that an without entry a warrant effected ruse constitutes an unreasonable 1963, illegal 11, search under Const art when § there was no rational basis to suspect that crimi- nal afoot defendant’s home at the time the took place. The record in this case is devoid of evidence concerning why the governmental authorities selected defendant’s home to conduct such an entry. We would there- fore remand this case to the trial court for an evidentiary hearing.

I. FACTS 10, 1981, On March Ward, JoAnn described as a very attractive eighteen-year-old, was a confiden- tial informant for the Berrien County Metro Squad. Narcotics Ms. Ward was also the sister-in- law of one of the squad narcotic detectives as- signed to defendant’s case. evening On the March Ms. Ward was directed go to a Mich Opinion Dissenting Archer, J. for the sole 2106 Russell Road located at residence inducing occupant purpose her some the sell Upon drugs. site, knocked at the Ms. Ward arrival Ms. defendant answered. door and on the back sought entry feigned into trouble and car Ward telephone. not She did to use his defendant’s home police agent. identify Defendant ad- a herself as phone. her to the Ms. and directed mitted Ward bogus phone making call, en- Ms. Ward a After gaged pre- defendant and in conversation with girl.” bring "party a She did herself as sented drugs, up subject however, defendant invited the "joint” and him. Ms. Ward smoke a with Ward to provided joint which was then a defendant smoked if asked defendant Ms. Ward then defendant. "coke,” could obtain some he knew where she you responded: you think fell do "What defendant into here?” reported and left home Ms. Ward defendant’s findings On the basis the her authorities. the Ward, an from Ms. affidavit information obtained out, warrant issued. search was sworn a to search search warrant authorized "quantity for a defendant’s of . . . residence marijuana.” During search, officers dis- garbage bag containing later what was covered identified as containing plastic bag

marijuana. A powdery as co- substance later identified white large currency, triple caine, beam amount of placed Defendant was were also discovered. scales possession marijuana. A second under arrest search warrant 19.2 was issued for the cocaine and grams of cocaine were seized.

II. ANALYSIS Relying Court on the United States holdings States, 347; United 88 S Katz v US v Catania Dissenting Aechee, Opinion (1967), 507; Ct 19 L 2dEd Hoffa v United States, 385 US Ct L 87 S 17 Ed 2d 374 (1966), majority concludes that there been has Michigan no violation or United States reaching Constitution sion, in this case. this conclu- majority overlooks the fact concerning record is devoid evidence upon basis which authorities selected defen- entry dant’s home to conduct the initial ruse without a warrant. Berger York, 41, 53;

In v 388 S New US 87 Ct (1967), 1873; 18 L Ed 2d 1040 the United States Supreme Court held: security privacy against

"The one’s arbitrary by intrusion the is at the core the —which Fourth society.” Amendment —is basic to free a Colorado, 25, Wolf v 1359; 338 US 27 Ct L S 93 [69 (1949). Ed And its "fundamental 1782] protections guaranteed against . are . . . . . inva Texas, 476, by sion the States.” 379 Standard US (1965). 506; 481 S Ct 13 L Ed 2d . . . "The [85 purpose Amendment, basic recognized of this as Court, countless safeguard decisions of this privacy security against individuals arbitrary by governmental invasions officials.” At 528. range The home is afforded the full of Fourth protection. Amendment States, Lewis v United (1966), 206, 208; US 87 S Ct 424; L Ed 2d 312 citing States, Amos v United 255 US 41 S Ct (1921) (Bottles L whiskey 65 Ed 654 testi- by government’s fied about witnesses, revenue agents, agents were seized within curti- lage during store, defendant’s house his agents absence. Because the search warrant did not obtain a prior conducting the search of home, defendant’s the Court held that defendant’s 427 Archer, Opinion Dissenting rights had been Amendment Fifth Fourth and agents permitted wife violated. Defendant’s seized The evidence which was enter home. defendant.). returned to the was Berger, holding in we would theOn basis entry home into one’s a ruse before hold Amend- Fourth can withstand a without warrant showing challenge, must be a there ment suspect that criminal basis to there was a rational home. Entries without afoot at the on which are based effected ruse warrants concerning objective facts sus- articulable arbitrary pected activity, intru- constitute criminal Fourth tolerated under the cannot be sions which § 11. art Amendment Const pre- the facts with facts similar to case (Iowa, Ahart, here, sented State v NW2d 1982), to deter- Court was asked Iowa without warrant mine ruse whether violated of defen- a law enforcement officer Fourth Amendment or state constitutional dant’s rights. presented in Ahart were facts case drove a as car to Two law enforcement officers follows. feigned car trouble. home and defendant’s two knocked on defendant’s One the officers person opened the and who door that door told and that he needed to his car had broken down pre- call his The officer was admitted and boss. phone call to some- tended make a credit card making phone call, the officer one. While drug marijuana paraphernalia and observed plain The officer then left the defendant’s view. away days the area. Several home drove from later a search warrant was issued and a subse- place. quent Mari- search of defendant’s home took juana during and seized the search. was discovered response challenge In constitutional defendant’s v Catania by Dissenting Opinion Archer, J. entry by warrant, to the ruse the Iowa without Supreme Court stated: recognize entry

While we that a warrantless if ruse effected must often be allowed government organized crimi- is to ferret out "those nal dealings,” covert activities are characterized Lewis, 427; 210-11; Ct at 385 US at 87 S equally cognizant 17 L Ed at 2d we are against arbitrary intru- security one’s home police sion the core the fourth is at Berger v society. amendment and basic to our New York, 1040; 18 L Ed 2d US S Ct 2d, Seizure[s], 68 Am Jur § Search[es] (1973) .... not all en- Consequently, warrantless gained by tries Certainly, ruse are valid. such an entry is not if is arbitrary. allowable it NW2d [324 319.] whether,

Because the court could determine police sought entry at the time the into defen- they home, dant’s had reason to believe that crimi- activity home, nal was afoot in the Ahart entry without a warrant was found to violate both the United States Constitution and the Iowa Con- Guidry State, stitution. also See 671 P2d 1277 1983) (where (Alas, the Alaska Court suspect used a rational basis to criminal part upholding afoot standard as its reason for challenged entry ruse without a un- warrant Constitution). der the Alaska gained entry case, the instant Ward Ms. into defendant’s home Ward’s ruse. Defendant consented to deception on the basis as to her identity purpose. directed Ms. attempt entry by Ward to ruse into defendant’s purpose gathering home for sole evidence concerning defendant’s involvement in narcotics trafficking. devoid, however, The record is Dissenting Opinion Archer, suggesting why defendant was evidence reasons investigation. targeted police an such ques- prosecution attempted During to trial the Deputy County of the Berrien tion the Sheriff Department, Marschke, concern- Steven Sheriff’s ing why was to defen- reason Ms. Ward sent are this home. reasons which unclear dant’s Court, For not the admis- trial would allow court into An affidavit sion this evidence the record. prepared by Marschke which details was Officer concerning in nar- facts defendant’s involvement trafficking. affidavit, however, is dated This cotics March opinion Appeals is the Court of which after published.1 The

in this affidavit case properly be considered this therefore cannot Court. recognize necessity for some undercover

We "the many activity” and that "in detection types crime, to use the Government entitled agents.” identity decoys of its conceal the supra However, ‍​‌‌​​​​‌​‌​​​​​‌​​‌​​​​​‌‌​‌‌​‌‌‌‌​‌‌‌‌‌‌‌​​​​​​‍Lewis, 208-209. au- at before validly carry can out an without a thorities warrant Constitution or the must be a to ruse under United States effected

Michigan Constitution, there showing that there was a basis rational at the believe criminal was afoot given by defendant’s home. thorities reasons au- support their belief criminal activ- ity taking place place past presently has taken or is objective

must be based on and artic- ulable facts.

CONCLUSION entries are Ruse without warrants which suspicion based on a reasonable that criminal Appeals 19,1985. opinion February The Court was released People v Catania Dissenting Opinion Archer, J. taking place has taken or is constitute arbitrary privacy. Arbitrary intrusions into one’s person’s privacy intrusions into a are not allowa- ble under the Fourth 1, § Amendment or art subsequent and will not validate searches without warrants.

We would reverse and remand this case to the proceedings circuit court for further in accordance opinion. with this J.,

Cavanagh, Archer, concurred with

Case Details

Case Name: People v. Catania

Court Name: Michigan Supreme Court

Date Published: Dec 30, 1986

Citation: 398 N.W.2d 343

Docket Number: Docket Nos. 76742, 76743, (Calendar No. 7)

Court Abbreviation: Mich.