PEOPLE v GRAINGER
Docket No. 51885
117 MICH APP 740
July 13, 1982
Docket No. 51885. Submitted December 3, 1981, at Detroit. — Decided July 13, 1982.
Peter G. Grainger was convicted in Wayne Circuit Court, Patrick J. Duggan, J., of carrying a concealed weapon. The charge arose out of the attempt by defendant to board a commercial airplane under an assumed name with a handgun concealed in the briefcase he was carrying. When airline officials became suspicious, defendant was asked to accompany them to an x-ray machine for a scan of the briefcase. The scan revealed the outline of a gun and a police officer was summoned. The officer instructed defendant to open the locked briefcase. Defendant refused, stating that the briefcase belonged to a friend. The briefcase was again x-rayed, defendant was arrested, and the briefcase was opened, revealing a loaded handgun, identification in defendant‘s true name, and a concealed weapon permit issued to defendant. Defendant moved to suppress both the gun as the prоduct of an illegal search and seizure and his statement disclaiming ownership of the briefcase because of the failure to inform him of his constitutional rights prior to questioning him. The prosecution argued that defendant lacked standing to raise the search and seizure issue and that the defendant‘s statement was voluntary rather than the product
REFERENCES FOR POINTS IN HEADNOTES
[1]
Application of “clearly erroneous” test of Rule 52(a) of Federal Rules of Civil Procedure to trial court‘s findings of fact based on documentary evidence. 11 ALR Fed 212.
[2]
[3, 14]
[4, 16]
[5-8, 17]
[9, 10]
[10]
Modern status of doctrine of res judicata in criminal cases. 9 ALR3d 203.
[11]
[12, 13]
[15]
1. While an x-ray scan of luggage at an airport is a search within the meaning of the constitutional provisions concerning searches and seizures, defendant lacked standing to raise the search and seizure question because his disclaimer of ownership of the briefcase amounted to abandonment of any right of privacy he might have in such property.
2. Defendant‘s statement disclaiming ownership of the briefcase was a voluntary statement rather than the product of an interrogation and thus did not have to be suppressed even though, at the time it was made, defendant had not been informed of his right to remain silent.
3. It was error to submit to the jury the question of whether defendant‘s concealed weapons permit was in force on the day in question. The determination of the Oakland Circuit Court in a suit against the Oakland licensing board that the license was in force on the day in question is binding on the Wayne County Prosecutor. Since it is impossible to determine whether the jury relied upon this theory or on the alternative theory presented at trial in reaching its verdict, reversal of defendant‘s conviction is mandated.
Reversed and remanded.
BRONSON, J., concurred that reversal is mandated. He, however, would hold that both the gun and defendant‘s statement of disclaimer should have been suppressed since they were obtained in violation of defendant‘s constitutional rights.
OPINION OF THE COURT
1. APPEAL — CRIMINAL LAW — EVIDENCE — MOTION TO SUPPRESS.
The Court of Appeals will not reverse a trial court‘s ruling on a motion to suppress evidence unless that ruling is found to be clearly erroneous.
2. SEARCHES AND SEIZURES — AIRPORTS — X-RAY SCANS — CONSTITUTIONAL LAW.
An x-ray scan of luggage at an airport is a search within the requirement of the Fourth Amendment since the x-ray scan system is part of a screening system required by the federal government.
The proper test for determining whether a defendant has standing to dispute a search and seizure is whether he has a legitimate expectation of privacy in the area searched.
4. SEARCHES AND SEIZURES — ABANDONED PROPERTY.
A disclaimer of ownership of property constitutes abandonment of the property; a person does not have, for search and seizure purposes, a legitimate expectation of privacy in abandoned or unсlaimed property.
5. CRIMINAL LAW — POST-CUSTODY STATEMENTS — VOLUNTARY STATEMENTS — CONSTITUTIONAL LAW — MIRANDA WARNINGS.
Not all statements obtained by police after a person has been taken into custody should be considered products of interrogation, and volunteered statements of any kind are not barred by the Fifth or Fourteenth Amendments; interrogation which would trigger the necessity of giving a defendant Miranda warnings should reflect a measure of compulsion above and beyond that inherent in the custody itself.
6. CRIMINAL LAW — MIRANDA WARNINGS — INTERROGATIONS OF SUSPECTS IN CUSTODY.
Miranda safeguards should be observed whenever a person in custody is subjected to express questioning by the police or to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.
7. CRIMINAL LAW — MIRANDA WARNINGS — PROTECTION OF SUSPECTS IN CUSTODY — UNFORESEEN RESULTS OF POLICE ACTIONS.
Miranda safeguards vest a suspect in custody with an added measure of protection against coercive police practices without regard to objective proof of underlying police intent, but police should not be held accountable for the unforeseeable results of words or actions which they should not have knоwn would be likely to elicit an incriminating response.
8. CRIMINAL LAW — VOLUNTARY STATEMENTS — CONSTITUTIONAL LAW.
A response by an individual that he did not own a piece of luggage after being asked by a police officer at a luggage check point in an airport to open that piece of luggage is a voluntary statement which may be admitted into evidence even though the individual had not been informed of his Miranda rights prior to being questioned.
It is error to submit to a jury the question of the validity of a concealed weapons permit on a certain date for the purpose of a criminal charge of carrying a concealed weapon where, in a separate licensing proceeding, a circuit court had determined that the permit was in effect on the date of the possession of the concealed weapon giving rise to the criminal charge.
10. JUDGMENTS — COLLATERAL ESTOPPEL — PROSECUTING ATTORNEYS.
The prosecuting attorney of one county, for the purpose of a criminal prosecution, is precluded by the operation of the doctrine of collateral estoppel from relitigating the validity of a conсealed weapons permit where the question of the validity of such permit has been determined in an action against the licensing board of another county which issued the permit; the prosecuting attorney and the licensing board both being creatures of the same sovereign, the State of Michigan, the parties in the two actions are sufficiently identical to permit the application of the doctrine of collateral estoppel.
11. CRIMINAL LAW — JURY INSTRUCTIONS — ALTERNATIVE THEORIES OF GUILT.
Reversal of a criminal conviction is mandated where two theories of guilt are presented to the jury and one of those theories is legally insufficient to support a conviction and it is impossible to tell upon which theory the jury relied.
CONCURRENCE BY BRONSON, J.
12. SEARCHES AND SEIZURES — CONSENT — BURDEN OF PROOF.
The prosecution has the burden of proving that, under the totality of the circumstances, consent to a search was freely and voluntarily given.
13. SEARCHES AND SEIZURES — CONSENT — ACQUIESCENCE.
A showing of acquiescence by a person to a claim of lawful authority to conduct a search is insufficient to establish consent by such individual to a search.
14. SEARCHES AND SEIZURES — CONSTITUTIONAL LAW — STANDING.
The State of Michigan has traditionally afforded the citizenry greater protections against unreasonable searches and seizures than have been afforded by the United States Supreme Court; automatic standing to raise a search and seizure issue remains available under the Michigan Constitution despite the retreat
15. SEARCHES AND SEIZURES — CONSTITUTIONAL LAW — SUPPRESSION OF EVIDENCE.
In the absence of a federal mandate to suppress as evidence a firearm seized outside the curtilage of a dwelling house, a firearm so seized, even if the product of an unlawful search and seizure, may not be suppressed as evidence since the Michigan Constitution specifically provides that such evidence seized under such circumstance shall not be barred from evidence (
16. SEARCHES AND SEIZURES — ABANDONED PROPERTY — DISCLAIMER OF OWNERSHIP.
A disclaimer of ownership of property under circumstances where a claim of ownership could reasonably lead to criminal liability does not constitute abandonment of the property or any right of privacy in the property so as to defeat a claim of an illegal search and seizure of the property.
17. CRIMINAL LAW — VOLUNTARY STATEMENTS.
A statement by a defendant disclaiming ownership of a briefcase in response to a police request to open the briefcase where a claim of ownership would reasonably lead to criminal charges and under circumstances in which the defendant was in custody is a statement elicited as the result of interrogation and is not a voluntary statement subject to the requirement that a defendant be given his Miranda warnings prior to interrogation.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Andrea L. Solak, Assistant Prosecuting Attorney, for the people.
Nora J. Pasman, Assistant State Appellate Defender, for defendant on appeal.
Before: DANHOF, C.J., and J. H. GILLIS and BRONSON, JJ.
PER CURIAM. Defendant was convicted of carry-
On April 4, 1978, at approximately 10 p.m., defendant approached the ticket countеr of Delta Airlines at Detroit Metropolitan airport. Defendant informed the customer service agent that he had a reservation in the name of David Sims. The agent obtained defendant‘s ticket, a one-way ticket to Miami, Florida. Defendant paid for the ticket with cash. It was close to boarding time.
While at the ticket counter defendant checked a briefcase which had a warning sticker. The agent asked defendant if the sticker was a restricted article sticker which had to be cleared through air freight, but the defendant replied it was not. The agent read the sticker which stated, “These premises protected by automatic alarm system from Northern Electric“. The agent then alerted her supervisor, Bob Tolstyka, that the defendant fit the FAA hijacker profile. Mr. Tolstyka explained to defendant that he fell within the guidelines of federal regulations and that it was required that he check defendant‘s identity. Defendant could not produce any identification. Mr. Tolstyka then told the defendant that his briefcase would have to be searched. Since the briefcase was small Mr. Tolstyka said it could be put through the x-ray machine at the security checkpoint.
The defendant did not respond in any way but accompanied Mr. Tolstyka to the security checkpoint where Linda Duchesne, a Pinkerton security agent, was operating the machine. The briefcase was passed through the machine. The machine
Defendant claims that the trial judge erred by denying his motion to suppress the gun seized from his locked, checked luggage because defendant‘s briefcase was unconstitutionally seized and searched.
The people maintain that the search and seizure were permissible for two reasons: 1) the defendant has no standing because he denied owning the briefcase so he had no reasonable expectation of privacy; and 2) defendant‘s behavior and statements constituted a voluntary consent to the search of his briefcase.
At the suppression hearing held prior to trial, the trial judge found thаt the evidence should not be suppressed because the defendant had no expec-
In United States v Henry, 615 F2d 1223 (CA 9, 1980), the court stated that an x-ray scan is clearly a search and is therefore subject to the requirements of the Fourth Amendment because the x-ray scan system is used as part of a screening system required by the federal government. In Henry, the defendant attempted to check his briefcase, but because he was wеaring an ill-fitting wig and a couple of sets of clothing and appeared to be nervous, he was told that the airline had closed the luggage acceptance for that flight and he would have to take the bag to the gate where it could be loaded as checked luggage. At the security checkpoint, the security agent ran the briefcase through the scanner twice. She asked the defendant to open it, but the defendant stated that he did not have a key to open it. Subsequent events led to the opening of the case. With regard to the first x-ray scan, the court found that the scan was a reasonable procedure and that the defendant impliedly consented to it. The court
Henry is factually distinguishable from the case at bar in that the defendant in Henry physically carried the briefcase to the checkpoint himself. In the case at bar the actual carrying was done by Mr. Tolstyka. Nonetheless, defendant herein made no objection and, after accompanying Mr. Tolstyka to the machine where the briefcase was x-rayed, he offered to open the briefcase for Ms. Duchesne. These facts indicate that the initial x-ray scan was done with defendant‘s implied consent.
At this point, however, the police officer arrived. The defendant refused to open the briefcase for him, stating that the bag was not his but belonged to a friend of his. The people contend that under these facts the defendant lacks standing to challenge the subsequent search.
The proper test for determining whether a defendant has standing to dispute a sеarch and seizure is whether he has a legitimate expectation of privacy in the searched area. Rakas v Illinois, 439 US 128; 99 S Ct 421; 58 L Ed 2d 387 (1978), People v Wagner, 104 Mich App 169; 304 NW2d 517 (1981).
The trial judge did not err in finding that the defendant had no legitimate expectation of privacy in the briefcase. Defendant disclaimed ownership and therefore had abandoned it. In United States
In Colbert, as the police approached two defendants, the defendants set the briefcases they were carrying on the sidewalk and denied that they owned the briefcases. The defendants began tо walk away from the officers, leaving the briefcases on the sidewalk. The court found that the defendants had abandoned their briefcases and therefore had no standing to challenge the search.
In Anderson, the defendant was arrested in an airport after having checked certain bags. The police recovered the bags, and the defendant claimed ownership of one of the bags but disclaimed ownership of the other. The bags were searched without a warrant and a pistol and other incriminatory evidence were found in the unclaimed bag. The court found that the pistol and the other evidence were admissible because the defendant had abandoned the bag. Thus, the defendant had no expectation of privacy and lacked standing to challenge the search of the unclaimed suitcase.
In the present case, Duchesne and the police officer testified that the defendant twice denied
Defendant next claims that his statements to the police officer denying ownership of the briefcase should not have been admitted in evidence because he had not been advised of his Miranda1 rights. Defendant claims he was sufficiently in custody and the focus of suspicion to require a warning and waiver of his Miranda rights at this point.
We find that, even assuming defendant was in custody, his statement need not have been denied admission because the statements were not the product of interrogation. In People v Benjamin, 101 Mich App 637, 647-648; 300 NW2d 661 (1980), the Court discussed “interrogation“:
“In Rhode Island v Innis, 446 US 291; 100 S Ct 1682; 64 L Ed 2d 297 (1980), the United States Supreme Court addressed the question of what constitutes ‘interrogation’ under Miranda. After noting that not all statements obtained by police after a person has been taken into custody are considered products of ‘interrogation’
and that volunteered statements of any kind are not barred by the Fifth or Fourteenth Amendments, the Court indicated that ‘interrogation‘, as contemplated in Miranda, must reflect a measure of compulsion above and beyond that inherent in custody itself. The Court continued:
” ‘We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspeсt, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.’ 100 S Ct 1689-1690. (Footnotes omitted; emphasis in original.)”
In a footnote, the Court stated that Innis, supra, also indicated that whether the police officer was aware of any unusual susceptibility of the defendant to any particular form of persuasion, whether by word or deed or that the officer perceivеd the defendant to be unusually disoriented or upset at the time are factors that may affect the determination as to whether a police practice constitutes interrogation under Miranda.
Defendant next claims that the prosecutor should not have been allowed to argue the validity оf defendant‘s concealed weapons permit to the jury. We agree.
At trial, the prosecutor was allowed to introduce evidence for the purpose of establishing that defendant‘s concealed weapons permit had been revoked prior to the date of the offense. Testimony showed that a letter was sent by the Oakland County Concealed Weapons Licensing Board to the address listed on defendant‘s permit application giving defendant notice to appear at a permit revocation hearing. The notice stated that failure to appear would result in automatic revocation of the permit. Defendant did not appear and his license was revoked as of September 13, 1977. The notice of hearing was later returned as undeliverable. By further testimony the prosecutor attempted to imply that defendant resided at the address but refused delivery of the notice.
On April 24, 1978, defendant filed suit against the licensing board concerning the revocation of
On September 29, 1978, an order signed by the circuit court judge was entered. Defendant‘s permit was thereby restored nunc pro tunc to September 13, 1977. The order further stated that the licensing board‘s revocation of defendant‘s permit on September 13, 1977, was set aside and held for naught, apparently due to lack of proper notice to defendant.
At the trial of the case at bar the jury was instructed that it was to determine whether defendant‘s license was revoked at the time of the offense, as contended by the prosecutor, or whether it was valid and in full force, as argued by defendant. With respect to the Oakland County Circuit Court order the jury was instructed as follows:
“I instruct you that you may determine based on Oakland County Circuit Judge Robert Templin‘s order of September 29, 1978, Exhibit #16, that the defendant‘s gun permit was never revoked.”
We find that it was error for the judge to submit to the jury the question of the validity of the license. The prior circuit сourt order had already determined that the permit was not revoked. The jury could not otherwise determine the issue.
The doctrine of collateral estoppel precludes relitigation of an issue in a subsequent suit involving the same parties based upon a different cause of action. Topps-Toeller, Inc v Lansing, 47 Mich App 720, 727; 209 NW2d 843 (1973). Although the prior circuit court case involved the licensing board, whereas the present case involves the Wayne County Prosecutor, these parties are suffi-
The error requires reversal and a new trial in this case. Two theories of guilt were submitted to the jury: (1) that defendant had a invalid permit, and (2) that defendant had a valid permit but was carrying the gun in violation of certain license restrictions. The first theory, we have held, should not have been submitted to the jury.
The second theory, that defendant had a valid permit but was carrying the gun in violation of the license restrictions, was proper grounds for conviction of defendant. The permit authorized carrying the gun “for business, bank and home, hunting and target“. Defendant contended that he was going to Florida on a business trip and the license allowed him to carry the gun for business purposes. The testimony of defendant‘s employer supported his claim. He testified that he sent defendant to Florida to attend a business meeting in his place. However, other evidence established that defendant purchased a one-way ticket, traveled under an assumed name, paid for the ticket with cash, and denied ownership of the briefcase. These facts could indicate that the defendant was not traveling to Florida for business purposes.
Evidence further established that, although the gun permit allowed defendant to use the gun for the purpose of carrying large amounts of money from his place of business to the bank or his home, defendant had not been asked by his employer to carry a large amount of money to Florida. Therefore, even if the jury believed that defendant was going to Florida on business, it could have found that the gun was being carried outside the confines
Where one of two alternative theories of guilt is legally insufficient to support a conviction, and where it is impossible to tell upon which theory the jury relied, the defendant is entitled to a reversal of his conviction and a new trial. People v Olsson, 56 Mich App 500, 505; 224 NW2d 691 (1974). Such is the case here. The second theory would support a conviction, the first would not. We cannot tell upon which theory the jury relied.
Accordingly, defendant‘s conviction is reversed and the case is remanded for a new trial in accordance with this opinion.
BRONSON, J. (concurring). I concur in the majority‘s decision to reverse this case. I generally agree with the majority‘s statement of the facts. However, I believe additional explication is necessary to resolve the constitutional issues raised and will set forth these additional facts with the analysis sections of my opinion. I disagree that the facts of this case support the majority‘s conclusion that the search and seizure conducted here was constitutionally permissible.
I
The prosecution does not dispute defendant‘s assertion that the search and seizure here came within the purview of both the Fourth Amendment to the federal constitution and
“It is entirely clear from the materials summarized above, however, that throughout the period since late 1968 the government‘s participation in the development and implementation of the airport search program has been of such significance as to bring any search conducted pursuant to that program within the reach of the Fourth Amendment.
* * *
“The government‘s role in the airport search program is and has been a dominant one. But even if governmental involvement at some point in the period could be characterized accurately as mere ‘encouragement,’ or as ‘peripheral, or * * * one of several cooperative forces leading to the [alleged] constitutional violation,’ see United States v Guest, 383 US 745, 755-756; 86 S Ct 1170, 1177; 16 L Ed 2d 239 (1966), that involvement would nevertheless be ‘significant’ for purposes of the Fourth Amendment. Constitutional limitations on governmental action would be severely undercut if the government were allowed to actively encourage cоnduct by ‘private’ persons or entities that is prohibited to the government itself.” Id., 904. (Footnote omitted.)
See, also, Note, The Constitutionality of Airport Searches, 72 Mich L Rev 128, 134-137 (1973).1
discussed in Andrews, Screening Travelers at the Airport to Prevent Hijacking: A New Challenge for the Unconstitutional Conditions Doctrine, 16 Ariz L Rev 658, 703-704 (1974), as follows:
“(2) Low-level x-ray weapon detector check. Under this procedure, the carry-on baggage remains shut and is passed on a conveyor belt through the detector. Some of these devices project onto a television-type screen an image of the objects inside each piece of baggage, while others appear to project only a complex of lines which enable a trained monitor to deduce the size and nature of each such object. This procedure also invades privacy, although to a lesser degree than the manual inspection since the bag remains closed and there is no indiscriminate viewing of its contents or disruption of their order. However, the very process of projecting even an imprecise image of the shape and relative location of all items in any deliberately closed containеr is so similar to actually looking into the container as to partake of the essence of a search. The x-ray weapons detector does amount, then, to a search within the fourth amendment.” (Footnote omitted.)
The majority has no difficulty in concluding that defendant consented to the search because he made no objection to the airline employee, Robert Tolstyka, taking the briefcase to be x-rayed and because defendant offered to open the briefcase for Linda Duchesne, a security guard.
The prosecution has the burden of proving that, under the totality of the circumstances, consent to search was freely and voluntarily given. Schneckloth v Bustamonte, 412 US 218, 222; 93 S Ct 2041; 36 L Ed 2d 854 (1973), United States v McCaleb, 552 F2d 717, 721 (CA 6, 1977), People v Reed, 393 Mich 342, 362-363; 224 NW2d 867 (1975), cert den 422 US 1044; 95 S Ct 2660; 45 L Ed 2d 696 (1975), People v Whisnant, 103 Mich App 772, 775-777; 303 NW2d 887 (1981), lv den 411 Mich 960 (1981). I do not believe the prosecution met its burden here.
The record in this case shows that defendant was not told that he could avoid the search of his briefcase by declining to fly. He was not told that he could refuse consent. Nor does the record show that warning signs were posted at the ticket counter, where this incident initially arose, advising defendant that checked-in baggage was subject to search оr that he had a right to refuse the search. In addition, the record reveals that at the time Tolstyka told defendant that his bag had to be searched, it was then in the exclusive control of airline and/or security personnel.
In my opinion, all the record before us establishes is acquiescence to a claim of lawful author-
Assuming that I am wrong concerning the effectiveness of defendant‘s “consent” to the x-ray search, I would still conclude that the firearm had to be suppressed. There were actually two searches here, the x-ray examinatiоn which revealed a gun inside the briefcase and the actual opening of the briefcase and the seizure of the gun.
The issue of consent with respect to the x-ray examination presents a close question. However,
The majority focuses on the fact that defendant offered to open up the case for Duchesne as showing consent. Exclusive reliance on defendant‘s willingness to open the case for Duchesne, however, ignores the fact that when Officer Jerry Sumeracki came to the checkpoint, defendant refused to open the briefcase. Sumeracki admitted before the trial court that, at this point, defendant was in custody and not free to leave. Ultimately, the police, without a search warrant, opened the briefcase when defendant continued to refuse to do so. I believe that the physical search of the briefcase was conducted without consent and that the contrary result can only be rеached by a strained reading of the record.
I conclude that the physical search was not valid based upon defendant‘s “consent“. Moreover, there were no exigent circumstances which justified the search. The police officers had probable cause to believe defendant was guilty of carrying a concealed weapon after the x-ray scan. However, no exigent circumstances justified the subsequent warrantless search. The briefcase was immobile in police custody. See United States v Chadwick, 433 US 1, 13; 97 S Ct 2476; 53 L Ed 2d 538 (1977), Arkansas v Sanders, 442 US 753, 763; 99 S Ct 2586; 61 L Ed 2d 235 (1979), People v Plantefaber, 410 Mich 594, 603-604; 302 NW2d 557 (1981), cert den 454 US 975; 102 S Ct 527; 70 L Ed 2d 396 (1981), People v Miller, 110 Mich App 270; 312 NW2d 225 (1981).
III
In light of my conclusion that defendant did not
In People v Nabers, 103 Mich App 354, 375; 303 NW2d 205 (1981), rev‘d in part on other grounds 411 Mich 1046; 309 NW2d 187 (1981), I noted that, as a matter of state constitutional law, the courts of this state have traditionally afforded the citizenry greater protections against unreasonable searches and seizures then have been extended by the United States Supreme Court. Since Nabers, I have had occasion to criticize Rakas in People v Chernowas, 111 Mich App 1; 314 NW2d 505 (1981), and my concurring opinion in People v Wagner, 114 Mich App 541; 320 NW2d 251 (1982). Since then, one panel of this Court has declined to apply Rakas, finding as a matter of state constitutional law that, under
The Michigan courts applied the exclusionary rule long before such application was mandated by Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961). See Nabers, supra. An examination of some of these early decisions reveals that defendants who wоuld be found to have no constitutionally protectable Fourth Amendment rights under Rakas were nonetheless not thrown out of the state courts because of a lack of standing. See, e.g., People v Stein, 265 Mich 610; 251 NW 788 (1933) (defendant was one passenger in a taxicab, did not own the cab, and was manifesting his criminal behavior in front of the cabbie and the other passenger),3 People v Orlando, 305 Mich 686; 9 NW2d 893 (1943) (search of car belonging to neither of the codefendants). In light of the fact that pre-Mapp search and seizure law in Michigan did not develop Rakas-like standing requirements, I see no reason to conclude that they should be developed now.
Despite the foregoing, I would conclude that if the search and seizure here violated the Michigan Constitution, but defendant did not have a “legitimate expectation of privacy” under Rakas, defendant‘s conviction could not permissibly be re-
Since the weapon in this case could not be suppressed under the anti-exclusionary provision of the Michigan Constitution, I turn to the question of whether, under Rakas, defendant had a reasonable expectation of privacy in the briefcase. It is the majority‘s position that after defendant denied the briefcase was his, he had abandoned it and any expectation of privacy he might have had in the same. I acknowledge that, at present, the great weight of authority supports the majority. However, in my opinion this authority does not adequately analyze the issue.
Of more interest to me is the Supreme Court‘s summary rejection of the prosecution‘s abandonment theory in Walter v United States, 447 US 649, 658, fn 11; 100 S Ct 2395; 65 L Ed 2d 410 (1980), where the Court said:
“Nor can petitioners’ failure to make a more prompt claim to the Government for return of the films be fairly regarded as an abandonment of their interest in preserving the privacy of the shipment. As subsequent events have demonstrated, such a request could reasonably be expected to precipitate criminal proceedings. We cannot equate an unwillingness to invite a criminal prosecution with a voluntary abandonment of any inter-
est in the contents of the cartons. In any event, the record in this case does indicate that the defendants made a number of attempts to locate the films before they were examined by the FBI agents.”
In my opinion, this excerpt from Walter is applicable to this case. Defendant‘s statement that he did not own the briefcase was obviоusly made to avoid criminal proceedings against him. It is clear that defendant did not intend to relinquish or abandon the briefcase. The statement was made under the coercion of police custody. Even as the statement was made, defendant did not voluntarily give up the case; rather, he offered his lack of ownership as a reason for keeping the briefcase, with its incriminating evidence, closed. Defendant‘s act of prevarication was an attempt to preserve his privacy in the contents of his briefcase and to vindicate his expectation of privacy in the same.
In United States v Tolbert, 517 F Supp 1081, 1086-1094 (ED Mich, 1981), Chief Judge Feikens’ opinion constitutes what I consider to be the definitive analysis of what actions precipitated by police confrontation should be construed as an “abandonment” of Fourth Amendment rights in the searched item. Applying Justice Harlan‘s test for determining whether a reasonable expectation of privacy exists in a searched area from Katz, supra, and later accepted by a majority of the Supreme Court in Smith v Maryland, 442 US 735; 99 S Ct 2577; 61 L Ed 2d 220 (1979), Judge Feikens found that the defendant in Tolbert had not abandoned her property. Justice Harlan‘s concurrence in Katz imposes a twofold requirement for determining if a reasonable expectation of privacy exists: (1) that the person whose property has been searched exhibits a subjective expectation of privacy, and (2)
Here, defendant exhibited a subjective expectation of privacy in the briefcase up until the time it became clear that Officer Sumeracki intended to examine its interior. I agree with Judge Feikens’ Tolbert decision that the abandonment of this subjective expectation at the time of the police confrontation does not negate defendant‘s Fourth Amendment interests in the property. As Judge Feikens indicates:
“If ‘reasonable expectations of privacy’ define the range of protected Fourth Amendment interests, there is no reason to exclude her interest from the protection of the Amendment because she lost her actual expectation of privacy when the police approached. The coverage of the Fourth Amendment does not expand or contract to match a person‘s expectations about police behavior. Certainly, no one would contend that police may conduct a night-time raid without probable cause if the frightened homeowner has anticipated that it will occur.
* * *
“In an ‘abandonment’ case, the defendant takes ‘normal precautions to maintain his privacy‘, demonstrates a subjective expectation of privacy until the police arrive. After police confront him, his actual expectation of privacy is influenced heavily by his personal reaction to their presence. He may or may not expect his privacy to be jeopardized, depending upon his attitudes about police and his knowledge of Fourth Amendment law. Society‘s interest in the admission of incriminating evidence is no greater when the defendant‘s personal reaction to police includes loss of his expectation of privacy than it is in other cases. In fact, the need for deterrence may even be greater if the defendant has openly revealed his cynical expectations about police behavior.” Id., 1091-1092. (Footnotes and citations omitted.)
“Of course, the usual explanation of ‘abandonment’ is that the defendant‘s disclaimer destroys the legitimacy of his privacy interest. * * *
“First, if the ‘reasonable expectation of privacy’ standard is a limit of the substantive scope of the Fourth Amendment, the disclaimer does not remove defendant‘s privacy interest from the group of ‘legitimate’ or ‘reasonable’ privacy interests protected by the Amendment. She still owns the luggage, and still has an interest in the privacy of her ‘papers, and effects.’ US Const, Am IV. Society‘s interest in the prоtection of her personal privacy remains as strong after the disclaimer as before it.
“At least in police confrontations, ‘abandonment’ is really a doctrine of forfeiture or estoppel. A person realizes that his property is about to be searched, panics, and desperately tries to disown it. By the disclaimer, he is hopelessly trying to preserve his privacy. Of course, the lie is ignored, and the search proceeds. Yet, because of an absurd, pathetic statement which no one believes, he forfeits constitutional protection of his privacy. I find no precedent for attaching such a penalty to lying to the police.
“Second, if the standard is really a limitation of the exclusionary rule, defendant‘s ‘abandonment’ has not created the need for an exception to the rule. In Schneckloth v Bustamonte, supra, the Supreme Court recognized that deterrence of police misconduct plays no role in situations in which the police have relied in good faith upon a consent which appeared to be knowing and voluntary. Therefore, they refused to apply the exclusionary rule in ‘voluntary consent’ cases.
“No good faith reliance is present in a case of so-called ‘voluntary abandonment‘. The police do not rely
on the disclaimer. On the contrary, the search proceeds upon the assumption that the defendant is lying. The dynamics of the situation do not change. Whether or not the exclusionary rule actually serves its purpose, the need for deterrence of police misconduct remains.
“In fact, ‘abandonment’ actually presents a relatively appealing case for application of the rule. It is not a situation in which ‘the criminal is to go free because the constable has blundered.’ The ‘abandonment’ theory enables police intentionally to circumvent the privacy protections of the Fourth Amendment. They may approach a ‘suspicious’ person and try to pressure him into ‘abandoning’ his property. If they fail to coerce ‘abandonment‘, their actions аre never scrutinized by a magistrate. If they succeed, they are free to search the ‘abandoned’ property, and seize whatever they find. They have no warrant. They have no probable cause to believe that they will discover evidence of a particular crime. They simply go fishing. Their conduct is reviewed only when they catch something. The exclusionary rule was created specifically to deter this kind of systematic violation.” Id., 1093-1094. (Footnotes and citations omitted.)
My belief that defendant did not abandon his case is also reinforced by my opinion that prior to the time that defendant disclaimed ownership of the case, he should have been advised of his Miranda4 rights. We need not merely assume, as the majority has, that defendant was in custody. Officer Sumeracki admitted that he would not have let defendant leave had the latter tried to go.5 The question of interrogation is only a little closer. I first note that on cross-examination, Officer Sumer-
Defendant was asked to open his case. By Officer Sumeracki‘s admission, defendant responded, “why?” Sumeracki answered, “because the outline of a gun was seen in the bag. We have to have it opened.” Defendant then said the case belonged to a friend. As Tolbert, supra, makes abundantly clear, this is the typical scenario leading to a prosecutorial claim of abandonment. Far from defendant‘s response appearing “to be a voluntary, unsolicited statement“, it seems to me that this is precisely the kind of response Officer Sumeracki‘s conversation with defendant would be expected to elicit. I conclude that defendant‘s Fourth and Fifth Amendment rights were violated well before the police opened the briefcase without consent.