Defendant was convicted by jury of receiving and concealing stolen property of a value greater than $100, MCL 750.535; MSA 28.803. He appeals his conviction as of right, challenging the validity of the search without a warrant that resulted in the seizure of the property in question. We affirm.
Myrtle Soles and defendant lived together for a number of years, until Soles moved out in January 1989. In April 1989, Soles contacted the police, complaining that defendant had scratched the paint on her car with a key. She also told the police that she believed defendant possessed Acer computer equipment that had been stolen from the State of Michigan.
After ascertaining that an office of the Department of State Police to which defendant had access was missing some computer equipment, police obtained the serial number of the missing computer. However, no search warrant was obtained, because Soles had not seen the computer equip *536 ment since leaving defendant several months earlier, and thus the information was stale. An officer visited defendant’s residence in late May 1989 and, after being admitted into the residence by defendant, noticed a computer very similar to the missing property while walking through the house.
The officer interviewed defendant concerning the damage to Soles’ automobile and informed him that he was also investigating the possibility that defendant possessed stolen state computer equipment. Defendant gave the officer permission to check the serial number on the computer equipment, whereupon the officer discovered that it was the missing state equipment.
Defendant contends that the trial court erred in declining to suppress as evidence the seized computer, arguing that the seizure falls under neither the plain-view nor the exigent-circumstances exceptions to the warrant requirement. Defendant does not dispute that he voluntarily allowed the officer to enter his house and to his look at the serial number on the computer. Instead, defendant argues that the officer’s questions about the damage to Soles’ automobile was a mere pretext for getting into defendant’s house to look for the stolen computer and that evidence of the seized computer should have been suppressed because discovery of the computer was not inadvertent.
A seizure without a warrant may be valid under the plain-view exception to the warrant requirement where it is shown that (1) the incriminating character of the evidence was immediately apparent and (2) the police had a lawful right of access to the object.
People v Blackburne,
We conclude that the Michigan Constitution
1
affords no greater protection than does the Fourth Amendment. See, e.g.,
People v Moore (On Remand),
In
Davis,
the dispositive issue was whether the
*538
police had the authority to be in the defendant’s motel room in the first place, not whether the subsequent discovery of a gun in that room was inadvertent. The
Davis
panel neither mentioned nor discussed the effect of
Horton,
instead relying on
Coolidge.
Therefore, consideration of the question whether inadvertence is required under the Michigan Constitution was not essential to the determination of that case, and no rule of law to which Administrative Order No. 1990-6 applies resulted concerning the scope of the Michigan Constitution.
Roberts v Auto-Owners Ins Co,
In Jordan, the issue under consideration was whether a third party (a hospital) had the authority to consent to the search of the defendant’s clothing while the defendant was undergoing surgery for a bullet wound. Again, the Horton decision was not mentioned, and its effect was not discussed. The question whether the Michigan Constitution requires a finding of inadvertence in order to establish the applicability of the plain-view exception was not essential to the determination of the case, and no rule of law to which Administrative Order No. 1990-6 applies resulted concerning the scope of the Michigan Constitution. Roberts, supra; Kuikstra, supra.
We conclude that neither Davis nor Jordan is binding precedent under Administrative Order No. 1990-6 with regard to the question of inadvertence. We do not believe that the Michigan Constitution affords greater protection in this regard than does the Fourth Amendment. See Moore, supra. We follow Horton and hold that inadvertence of discovery is not a requirement of the plain-view exception to the warrant requirement under the Michigan Constitution.
*539 In the present case, defendant does not dispute that he consented to the police officer’s entry and presence in his home and to the officer’s checking of the serial number on the computer located there. The police officer’s entry into and movement within the house with defendant’s consent properly placed him in a position to see the computer equipment, the appearance of which was incriminating in light of Soles’ information and the police investigation. In these circumstances, the seizure of the computer equipment fell within the consent 2 and plain-view exceptions to the warrant requirement. That the officer’s approach to defendant may have been a pretext does not alter the outcome:
The fact that an officer is interested in an item of evidence and . fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement. [Horton,110 S Ct 2309 .]
The trial court’s ruling was not clearly erroneous,
People v Burrell,