People v. Nash

NASH PEOPLE v 9) (Cаlendar 4,May Argued No. Docket No. 68280. . Decided December 1983. by jury L. Nash was convicted a in the Gladwin Circuit Carrón J., Court, second-degree Campbell, of murder. The Robert H. (Kail- P.J., MacKenzie, Burns, Appeals, R. B. and Court J., man, dissenting part), concurring part and reversed trial, holding the case for a new that evidence and remanded suppressed body it was the victim’s should have been because during that certain discovered an unconstitutional search and defense counsel was admissible evidence seized in the office of place but that the where it was found should not have been 78-5505). (Docket people appeal. jury No. disclosed separate opinions by Brickley, Boyle, Ryan, Justices Cav- anagh, Kavanagh, Supreme Court held: The search and seizure without warrant of a box contain- ing body of the victim did not violate the defendant’s state rights. body or federal constitutional Evidence of the However, bullets recovered from it was admissible at trial. of evidence that the source of certain items of admission incriminating independently evidence which were linked to the defendant was the office of defense counsel violated the defen- attorney-client privilege, trial. dant’s and there must a new Brickley body Justice stated that evidence of the victim and the bullets recovered from it was admissible at trial. circumstances, totality In the there was no search within Amendment, meaning of the Fourth because whatever expectation privacy containing the defendant had in the box [1-3, ^{[2] [3]} [4-6] ^[5] 81 Am Jur Witnesses 222. 68 Am Jur 68 Am Jur 68 Am Jur Attorney-client privilege committed. 16 ALR3d 1029. nications, 68 Am Jur 8] 29 Am Jur 2d, 2d, 2d, 2d, or transmission of References 2d, Searches and Seizures 20.§ Searches and Seizures Searches and Seizures Searches and 2d, Evidence 418. § for Points as affected Seizures § evidence, relating § in Headnotes §§ §§ its assertion as to commu- 2, 6, 2, 4, 49. 42 et 16. to crime seq. already v Nash body the victim’s while it was in her trailer was defeated and longer objectively legitimate was no reasonable or under fed- eral law once the box was moved outside the trailer private person. action of a The state constitution does not require application higher of a of standard reasonableness than imposed by that the Fourth Amendment to the examination of dwelling. Testimony the box outside the defendant’s that cer- tain evidence was seized at the office of defense counsel was proper. Generally, provides 1. the Fourth Amendment that a search per However, without a warrant is unreasonable se. not all by government meaning intrusions are searches within the of protects the Fourth Amendment. The Fourth Amendment persons, places. Fourth Amendment interests are intruded upon governmental activity infringes justifiable where on a or expectation privacy. reasonable expectation Whether such an privacy subjective objective exists in both the sense is by scrutinizing totality determined of circumstances sur- rounding the intrusion. case, necessary 2. In this it is not to determine whether the expectation privacy defendant had a reasonable inside the trailer, body because the box which contained the victim’s had by private been person moved outside the trailer to an area normally open public. The box was unsealed and was made of cardboard. Because the defendant had no reasonable expectation privacy box, viewing in the of the contents of the box was not meaning a search within the of the Fourth Amendment. impose 3. The state constitution does not a standard of police respect reasonableness for conduct with to searches and higher seizures without required warrants which is than that by the federal constitution. Before the federal standard was declared, imposed the state constitution a standard of reason- as, high of, ableness at least as but not in excess the standard required by later held to be the Fourth Amendment. As a remedy standard, for violation providing of the state a rule illegally exclusion of seized adopted by case law. The state constitution was later amended application to bar exclusionary of that rule to a seizure of weapons or narcotics. The effect of the declaration of the exclusionary federal during rule was considered the 1961 Con- Convention, language stitutional substantially but similar to that of the adopted. former constitution was The inferences to be drawn are provision pre- search and seizure as people sented to the unchanged was intended to be from the Mich previous people, adopting constitution and that the the state constitution, placed understood that no restrictions would be upon stringent required searches and seizures more than those

by the federal constitution. Testimony 4. that certain items offered as evidence at trial were seized at the officeof defense counsel was admissible. The evidence, only which was seized with a warrant and was physical non-testimonial, was volunteered defense coun- attorney-client privi- sel and did not involve a violation of the lege. knowledge To withhold of where the evidence was found jury attorney-client privilege from the would not further the imрair truth-seeking and would function of a trial diminishing destroying or the usefulness of evidence. Boyle, joined by Williams, agreed Justice Chief Justice the search and seizure of the box did not violate the defen- rights dant’s state and federal constitutional and that evidence body admissible, of the and the bullets from recovered it was separately question but wrote to note that whether an attorney may compelled testify that he received evidence presented from a defendant was not in this case because infringement attorney-client privilege was avoided when the sheriff testified that he seized the evidence from the office of defense counsel. Ryan, agreed Justice that the search of the box and seizure of its contents did not violate the defendant’s state and federal protection against constitutional search and seizure without a

warrant, but wrote that admission of evidence that certain incriminating independently items which were linked to the defendant had been obtained from the office of defense counsel attorney-client violated privilege the defendant’s and denied logical the defendant a fair trial. The most inference to be possession drawn from defense counsel’s of the items was that they given were to him the defendant. That fact was either privileged assertive compo- conduct or the nonverbal behavioral nent of a communication the defendant to defense counsel accompanied which delivery of the items. Cavanagh, agreed Justice the search of the box in question and the seizure its contents did not violate the rights, defendant’s state or federal constitutional but stated that there is no need to decide whether the state constitution imposes higher a standard than the federal for review of during conduct searches and seizures. It cannot be concluded that the impose higher state constitution does not a standard ground on the that the electorate has indicated disdain for the judicially exclusionary created rule. The state standard has no v Nash imposed rule relation to the deter violations of the standard. agreed Ryan He with Justice that admission of evidence seized defense counsel violated office of the defendant’s attor- ney-client privilege, and that the conviction must be reversed. Levin, Kavanagh, joined by Justice Justice would affirm the Appeals reversing decision of the Court of the conviction for given opinion, fully the reasons that Court’s which accurately sets forth the law: the defendant had reasonable a of, expectation privacy in the it box when was moved outside of, curtilage expectation but within the her trailer and that the worthy protection. Although was of Fourth Amendment there committed, probable cause to believe that a crime had been exigent justify were insufficient an there circumstances to a immediate search box without warrant. Admission of body evidence of the of the victim found in the box and all of stemming the evidence from it was not harmless error in a prosecution Likewise, mostly based on circumstantial evidence. incriminating the revelation that certain had been attorney prejudicial obtained from the defendant’s was more probative. than judgment Appeals reversing of the Court of and re- affirmed; manding holding for a new trial its but on the search and seizure issue is reversed. (1981) App 110 Mich 313 NW2d 307 as to affirmed result. Opinion by Beickley, Legitimate — — 1. Searches and Seizures Without a Warrant Expectation Privacy Admissibility — of Evidence. body Evidence of the of a victim and bullets recovered from it seized without a warrant outside a defendant’s house trailer prosecution second-degree was admissible in a murder meaning where there was no search within the of the Fourth Amendment an because unsealed cardboard box which con- body by private tained the had been moved outside the trailer person open public into an area defendant no longer objectively legitimate could claim an reasonable or (US expectation Const, privacy IV; Am art Const §11). Legitimate — —

2. Searches and Seizures Without a Warrant Expectation Privacy. of person’s right against A unreasonable is searches and seizures upon governmental activity infringes intruded where aon justifíable expectation privacy; or reasonable whether such subjective and privacy expectation exists in both an totality scrutinizing by objective sense is determined surrounding the intrusion. circumstances Admissibility — — Without a Warrant and Seizures 3. Searches of Evidence. impose of reasonable- a standard does not The state constitution respect seizures to searches conduct with and ness for required by higher than warrants which without 11). (US Const, IV; art § Am Const federal constitution Admissibility — — 4. Searches Offices of Counsel and Seizures Evidence. during prosecu- offered as Evidence that certain items second-degree at the office of murder were seized tion for to warrant was used was admissible where a defense counsel only physical and and the evidence obtain the evidence by with- defense counsel and was volunteered non-testimonial privilege. violating attorney-client out Concurring Boyle, J. Privileged — Attorney — —

5. and Client Homicide Evidence — of Counsel. Withdrawal Communications may compelled attorney question to whether a defendant’s possessed which testify he certain items in a murder trial that and that he had received would incriminate the defendant defendant, the effect of which would have them from the undermining eyes and of the ñnder of fact the defense counsel, presented require withdrawal of defense was not would had seized the items in a case where a sheriff testiñed that he (DR 5-102[B]). at the officeof defense counsel Dissenting Opinion Concurring Ryan, Part in Part Attorney Privileged — — 6. Evidence Communica- Client tions. incriminating items which

Admission of evidence that certain independently obtained were linked to the defendant had been from the office of defense counsel violated defendant’s logical attorney-client privilege inference because the most possession items was be drawn from defense counsel’s defendant, they given and that fact were to him privileged beha- was either conduct or the nonverbal assertive component by the defendant vioral of a communication accompanied delivery defense of the items. counsel which People v Nash Dissenting Concurring Opinion Part and in Part Cavanagh, J. Admissibility — — Without a Warrant 7. Searches and Seizures оf Evidence. required by for review of the state constitution

The standard during and seizures has no relation to conduct searches judicially rule that evidence seized in violation of created trial, merely will excluded at because the standard be con- has indicated dislike for rule it cannot electorate higher imposed is not than that cluded that the state standard (US Const, IV; constitution Am Const art the federal 1,§U). Opinion by Kavanagh, J. Dissenting Expectation — — a 8. Searches and Seizures Without Warrant Privacy. prosecution second-degree A defendant in a for murder had a expectation privacy in a box which reasonable was moved outside, of, trailer, curtilage was within the her and the but expectation worthy protection, pre- was of Fourth Amendment cluding found without admission of evidence a warrant of the it, body of the victim in the box and of bullets recovered from although probable cause to believe that a where there committed, exigent crime had there were insufficient been (US Const, justify IV; circumstances to the search Am Const 1, §11). art — — — 9. Searches and Place of Seizures Evidence Admissibility. Seizure — Offices Counsel prosecu- during Evidence that certain items offered as evidence second-degree tion for murder were seized with a warrant at the office of defense counsel should not have been admitted place prejudicial proba- because the of seizure was more than tive. Attorney General, Frank J. Kelley, Louis J. General, Solicitor Caruso, Jacobson, A. Douglas Prosecuting Attorney, and Leonard J. Malinowski, Attorney people. General, Assistant for the Appellate (by Lev) State Defender Stuart B. the defendant. Brickley, of second- was convicted J. Defendant

Brickley, 28.549, for the murder, 750.317; MSA MCL degree husband, Douglas Leon of her shooting death Nash, imprisonment. to life and was sentenced convic- reversed defendant’s Appeals Court of trial. the case for a new tion and remanded Nash, 313 NW2d 307 App 110 Mich for leave application the granted prosecutor’s We (1982), to consider 414 Mich appeal, to holding erred in Appeals the Court of whether of the victim should body that evidence trial it was dis- suppressed at because have been search of as a result of an unconstitutional covered the We also consider property. the defendant’s evi- holding Appeals of the Court of while the execution against dence defendant obtained on defendant’s attorney may of a search warrant trial, the at the fact that evidence was be admitted from the cannot be made known to attorney seized reverse the decision of the jury. We would Appeals holdings. Court of on both

I trial, all suppress Prior defendant moved evidence of the victim’s and the bullets recov body it. By stipulation, ered from the motion was sub mitted to the trial court on the of the facts basis Af brought out at examination.1 preliminary receiving ter an decision on the mo unfavorable sought tion defendant a and an eviden rehearing, tiary hearing was held. The relevant from examination and from the preliminary hearing and evidentiary showed that defendant victim lived a house trailer rented from practice deciding exclusively search and seizure motions on brought preliminary prohib- the facts ited. out at the examination is now People Talley, 301 NW2d 809 v Nash Brickley, Paul Ballard. Defendant was a few Margaret middle of in her rent as weeks behind had not been seen at recently January Neighbors moving trailer. had seen someone boxes out of trailer. 20, 1974, the Ballards received an January

On the trailer. Mr. Ballard went renting about inquiry prospective trailer with the tenants. He to the in a the trailer to be vacated and partially found condition, wadded-up with news- untidy somewhat in the A slight the floor and a odor air. papers on box, odor, exuding strong a was found ex- large bucket, odorous, mop A also tending from closet. Ballard, help Mr. with the the bathroom. son, the box out of the trailer and left pushed his it next to the door. home, Mr. Ballard told

Upon returning Mrs. go the box. He asked her to Ballard about box, up trailer to check the as well as to clean red marks left it in the trailer. Mrs. Ballard thought possible it the box contained a body, thought but Mr. Ballard that it contained meat scraps dogs. for defendant’s 21, 1974, January

On Mrs. Ballard went dogs trailer. Defendant’s were not there. She found a 4' 17" 17" cardboard box outside the just X X trailer’s northwest ‍‌​​​‌​​​​‌​​​​​‌​​​‌‌​‌‌​​‌‌‌‌‌‌‌‌​‌​‌​​‌‌​‌​‌​​‍door. The the box was top of open and slightly opened unsealed. She the box and thought might saw what she body be the the victim.

Mrs. Ballard went directly to the sheriffs office reported that thought maybe "she that there was a dead body” or "it could bones or cow just hides” in renting the box on the property she to Douglas defendant and Nash. Ballard, sheriff,

Mrs. the out to others went the trailer. No search After procured. warrant was Mich 196 Brickley, in an a hole through to anything unable see

being it, box, opened the sheriff the corner of upper Douglas body decomposed revealing badly that disclosed examination Subsequent Nash. wounds, one gunshot of two as a result victim died back, but both from the and one the front from 21, 1974, Also, January on the heart. through tell them she the Ballards to telephoned defendant left trailer and had renting the to continue wished of work. place Mr. Ballard’s check at a rent ruling: following made the trial court that this opinion when court is of "And the Mrs. Ballard or to the sheriff reported to matter was him, being outside that the box and then to his office related circumstances and with the were] full view [that Ballard, search the so-called Mrs. to sheriff view, the search that in full was within the box was circumstances.” under the the law allows trial court’s decision agree with the Although we we suppress, analyze to the motion deny differently. issue warrant, to certain subject

A search without here, per unreasonable applicable is exceptions the United Fourth Amendment se under Arizona, 437 US v Mincey Constitution. States (1978). 2408; L 2d 290 Of 385; 98 S Ct Ed course, intrusions constitute government not all Fourth meaning within searches the Fourth seeking Amendment. One the benefit of the burden of show- carry Amendment must first applicable. ing the Fourth Amendment 98; 2556; Rawlings Kentucky, 448 US 100 S Ct L65 Ed 2d 633 States, Katz v United 389 US 88 S Ct (1967),

507; L 576 the United States 19 Ed 2d Nash v Opinion by Brickley, scope Court articulated the of Fourth Supreme Stressing the amend- protections. Amendment areas, and not or protects persons places ment Fourth Amendment interests to be Court found governmental in- activity when the implicated reasonable, fringed justifiable, expectation on a or Katz, Stewart, supra, p of (opinion of privacy. J.). Harlan, J.), of in (opinion expressed As p cases, the issue to be decided is whether later "legitimate of expectation privacy defendant had Illinois, Rakas v place”, in the invaded US (1978). 128, 143; 421; 58 L 2d 387 An 99 S Ct Ed if expectation privacy legitimate of the individ- actual, subjective expectation ual has an of privacy expectation and that actual is one that society Knotts, recognizes as reasonable. United States v (1983). 276; 1081; 103 S 75 L 2d 55 460 US Ct Ed expectation Whether an exists in privacy both and the subjective objective sense is deter- scrutinizing mined totality circumstances alleged intrusion. United States surrounding 1982). Hawkins, (CA See Rawl- 681 F2d 1343 Rakas, ings, supra; supra Powell, J., (opinion concurring). case, present it is by no means clear that

defendant had retained any property interest in premises. rented Supreme United States " Court rejected has the idea that 'arcane distinc- ” * * * tions developed property dispos- law’ are Rakas, itive of supra, Fourth rights. Amendment 149-150, pp fn 17. Yet interests remain property Salvucci, relevant. United States v 83; 448 US S Ct 65 L Ed 2d 619 an Without interest, property otherwise, or premises, defendant would certainly right have no to com- plain decide, however, of a search. We need not whether defendant had a expectation reasonable Mich 196

206 by Opinion Brickley, J. inside trailer.2 We find that in privacy in cirсumstances which the search actually took place had no legitimate defendant reasonable or of expectation privacy. containing

The box the victim had been moved outside of the trailer Mr. by Ballard. This action in by private persoñ no way involves Fourth Amendment, which is limited to protecting per intrusions. Burdeau v sons from governmental McDowell, 41 465; 574; 256 US S Ct 65 L Ed 1048 v Coolidge Hampshire, New (1921); 443; 403 US 91 2022; S Ct 29 L Ed 2d 564 The location of the box it after was moved Mr. Ballard was next to a trailer door. In the absence of special circumstances, this is an area normally open to Kramer, See United States v public. 711 789 F2d (CA 7, 1983); Magana, United States v 512 F2d (CA 9, 1975); Pruitt, United States v 1169 464 F2d (CA 1972). 9, 494 Defendant has offered no evi dence that visitors to the trailer were somehow barred from approaching the trailer door. The box cardboard, was made of not a certainly substance one would reasonably expect keep out the curi ous. Perhaps even more importantly, the box was unsealed. Compare the expectation reasonable of Chadwick, United States v privacy in analyses 1; (1977) (reason US 2476; 97 S Ct L53 Ed 2d 538 expectation able of in privacy a double-locked footlocker), Sanders, Arkansas v 442 US Appeals The Court of stated "that defendant had a reasonable expectation box, privacy of in the when moved outside the trailer but curtilage, worthy protection”. within the Mich of Fourth Amendment App 437. The Court went on to consider defendant whether had property, defining abandoned the an abandonment as the combination of two-step analysis applies act and the intent to abandon. Such a * * * developed property rejected those "arcane distinctions law” Supreme sup- the United States Court. Those facts which would port property the conclusion that had been abandoned are more properly determining considered in whether had a defendant expectation privacy place. reasonable in the -first Nash Brickley, (1979) (reasonable 2586; 61 L 99 S Ct Ed 2d 235 expectation privacy unlocked, closed, but suitcase), Neumann, with United States v 585 F2d 1978) (CA (no expectation reasonable box), privacy in an unsealed cardboard and United 1980) (CA (no Mackey, States v 626 F2d 684 expectation privacy paper bag). reasonable in a considered, final factor which One must be al- though weight, we ascribe to it little is that already macabre contents of the box had become alleged known to Mrs. Ballard at time of the States, In 649; search. Walter v United 447 US (1980), 2395; S Ct 65 L Ed 2d 410 six members of Supreme although Court, the United States reach- ing opinion conclusions, different were of the that by an initial intrusion a civilian into an area any expectation privacy. lessened reasonable of present may case, while defendant well have subjective expectation privacy entertained a of underly- the ing trailer, box as it stood in the the facts expectation changed. had The box had been moved out of the trailer and its contents Although by may viewed. a search a civilian expecta- be able to defeat an otherwise reasonable privacy objective tion of somewhat US sense, it must — See, also, it. Andreas, lessen Illinois v —; 3319; 103 S Ct 77 L Ed 2d 1003 totality Under the circumstances, of we conclude that the the cardboard box was not searched within

meaning of the Fourth Amendment. Whatever expectation privacy of defendant had in con- tents of the box while it was in the trailer defeated once the box was moved outside the expectation privacy trailer. Defendant’s of nowas longer objectively legitimate reasonable or under federal law.

Relying on this Court’s statements in by Brickley, (1982),

Secrest, 413 Mich de- 321 NW2d 368 body that evidence of the of contends fendant suppressed have been under should victim required conduct police standard higher 1, Constitution Michigan 11 of the article § language contends 1963. Defendant 1, 11, application mandates art Const § conduct exclusionary rule when our state’s higher this standard. does not meet IV, Const, provides: Am US persons, people to be secure in their right of the "The effects, houses, against unreasonable papers, and violated, seizures, and no shall not be and searches Warrants ported ing to be seized.” issue, cause, upon probable sup- but shall affirmation, particularly or describ- Oath searched, persons things and the or place to be 1, 11, provides: art Const § houses, possessions every papers and person, "The from unreasonable searches person shall be secure any any place or to seize No warrant to search seizures. them, describing person nor without mation. The construed things or shall issue without cause, or affir- probable supported oath shall not be provisions of this section proceed- any in to bar from evidence criminal bomb, firearm, any or drug, explosive ing any narcotic officer out- dangerous weapon, peace other side the seized dwelling in this state.” curtilage any house Secrest, 525, the lan- supra, p compared we Even provisions. of the constitutional guage two on an in based though our decision that case was law, we stated: analysis of federal the two. wording between "Thеre are differences under result, higher standard imposed a As a the state we have the item provision the federal when than v Nash Brickley, the third sen- proviso of not one within seized is 426, 435; Moore, 391 Mich 1, People v 11. of art tence 216 NW2d § 554, Beavers, 393 Mich (1974); People v (1975).” 567-568; 227 NW2d read to mean statement the above To the extent Michigan Consti- Court, construing this conduct tution, a standard applied has constitu- the federal required by than that higher or narcotics weapons where tion in all instances involved, disapprove. not we are construction do statutory rules of The technical construing a constitution. Traverse apply not when General, 384 Mich Attorney School Dist v City (1971). 390, Instead, task is 405; 185 NW2d 9 our of the understanding” pro- to divine the "common vision, minds, meaning "which reasonable themselves, give great people mass of the would (6th ed), p it”. Const Limitations 81. Words Cooley, given meaning. Regard are to be their ordinary given leading must also to the circumstances and the adoption provision purpose v Board of Kearney sought accomplished. to be Auditors, State 666, 673; 189 Mich 155 NW 510 (1915). The constitutional convention debates and people, though controlling, address not are relevant. Beech Grove Investment Co v Civil Comm, Rights 380 Mich NW2d 10, Const art as originally adopted by § the people, provided: houses, persоn, "The papers possessions every

person shall be secure from searches and any unreasonable seizures. No person any place warrant to search or to seize ‍‌​​​‌​​​​‌​​​​​‌​​​‌‌​‌‌​​‌‌‌‌‌‌‌‌​‌​‌​​‌‌​‌​‌​​‍things them, or describing shall issue without cause, probable nor without supported by oath or affir- mation.”

Although required to do so the federal 210 196 418 Mich Brickley, Marxhausen, v Mich People constitution, 204 in (1919), adopted 557 this Court 559; 171 NW for violations of remedy rule as the exclusionary Weeks v United See, also, 1908, 2, 10. art Const § L 652 States, 232 US 383; 341; 34 Ct 58 Ed S Colorado, 1359; vWolf 25; 338 US 69 S Ct (1914); L Ed 1782 93 Stein, 610; People v 265 Mich 251 NW 788

(1933), applied exclusionary this Court our state of carry- to reverse the defendant’s conviction rule weapon ground unlicensed on the ing an seized. Hard weapon unconstitutionally had been Stein, in heels of this Court’s decision on the reaffirmed Const Michigan of the State people 2, 10, 1908, following proviso: added the art but § "Provided, however, provisions That of this sec- any tion not be construed to bar from evidence shall pro- jurisdiction, any or in criminal court of criminal any magistrate justice or ceeding held before firearm, rifle, revolver, peace, any pistol, automatic bomb, shell, gun, explosive, pistol, machine bomb black- knuckles, jack, slungshot, billy, gas-ejecting metallic device, any dangerous weapon thing, or or seized other by any peace curtilage any outside the dwell- officer 1,No 1935 Joint Resolution ing house in this state.” 3, 1936. ratified November Language prohibiting the from evidence exclusion of "any drug drugs” narcotic or was added to the 1, 1952 Joint Resolution No list of items in 1952. 4, ratified November 1952. v People

This Court people’s enforced the will Gonzales, (1959), 247; 97 16 Mich NW2d Winkle, People v 100 NW2d (1960), and into weapons allowed admission of though evidence even were they unconstitutionally Thus, 1960, seized. as of it is clear that relatively while Const art at as imposed least § Nash Opinion Beickley, J. the did as conduct police on high a standard state were Amendment, of this people the Fourth 2, 10 with 1908, art Const willing § to enforce was certain rule when exclusionary an 1961, 19, how June seized.3 On unconstitutionally decided Court ever, Supreme States the United 6 L 2d Ed 643; 81 S Ct Ohio, 367 US vMapp the defen- entered officers Mapp, police three engaged in and a warrant dant’s house without as "official described opinion majority what the rights. abuse” basic flagrant and "a lawlessness” and, searched house was 367 US 655. The entire and looking person for a the were though materi- bombing, to a obscene relating information facts of the the unusual Despite were seized. als were case, broad: the states holding quite the to Fourth rule required exclusionary to apply in all cases. Amendment violations Cоn- Michigan The of the Constitutional focus on the Mapp on the effect of vention of 1961 was 2, 1908, 10. The Const art third sentence of § Suffrage, Rights, Committee on Declaration of of Const proposed Elections the final sentence 1908, 2, phrase art 10 be deleted in favor of the § of this section "Evidence obtained violation law”. except by shall not be used as authorized holding of The committee reasoned that the broad Mapp final sentence of may have invalidated Const art 10. The merits of that sentence § Michigan Both the United Constitu- States Constitution and the Colorado, prohibit supra, tion unreasonable searches. In Wolf Supreme United States Court held Fourth Amendment prohibition against applicable unreasonable searches was to the states through the Due Process Clause of the Fourteenth Amendment. however, Court, apply declined to also the Fourth Amendment rem- Therefore, edy prior Mapp, exclusionary of the rule to the states. Michigan definition no less of an unreasonable search could be was, nevertheless, Michigan apply than the federal definition. free to apply exclusionary or not its state rule it chose to do so. when Brickley, by The com- the committee. also considered

were as authorized phrase "excеpt mittee added the because: law” imposed federal limits of the "Should the definition evi- respect admissibility with

on the States dence and the future, Michigan Legislature change in the incorporate, statute Michigan courts could decisions, respect those rules with and court opinion of reflect the admissibility of evidence which Michigan courts as to what Legislature and the State, subject in this practice ought to constitute sound only to the recognition limits set continuing Proposals supremacy.” Committee federal constitutional 1961, Support- Reports, Convention Constitutional 15, 7, pp 10. Proposal No ing Report, Committee committee was at- appears It therefore that the of a less tempting possibility to allow for the if exclusionary of the rule stringent application law, attempting rather than by allowed federal and strengthen Michigan protec- search seizure tion. at of the committee of the whole debates of,

the convention the merits and. considered both on, 1908, 2, 1 Mapp the effect of Const art 10. See § 1961, Record, pp Official Constitutional Convention 464-484, 488-533, Mapp 674-688. The view that was dwellings limited to searches of and a limita- that the tion on the rule on exclusionary proper was merits carried the to unite Michi- day. Attempts gan and United States search and seizure law by adopting the Amend- language exact of the Fourth ment in the were proposed Michigan Constitution Instead, pro- defeated. anti-exclusionary-rule 1908, 2, viso of Const 10 art was amended back § Record, proposed into the constitution. Official 1961, Constitutional Convention 531-688. Ulti- pp mately, language similar to that substantially People v Nash Brickley, 10, amended, 1908, 2, adopted Const art as § people. the convention recommended people The convention’s address stated 1963, 1, proposed Const art 11 was "No § 10, II, change from Sec. Article of the present except improvement constitution in phraseol- Record, ogy”. Official Constitutional Convention 1961, Indeed, p 3364. understanding common people upon reading proposed constitu- provision tional could nothing but the belief the search and seizure provision of the new represented change. constitution no There had been no substantive alterations. There is no indica- tion that in readopting language 1908, of Const 1, art 10 in Const art people § § place this state wished to restrictions on law en- greater forcement activities than required those fact, the federal In constitution. in- contrary tent is expressed.

With advantage of hindsight, we know that those who subscribed to a limited view of Mapp were in error. Yet such a view was not unreason In Winkle, re able at the time. See 292; 372 Mich (1964) 125 NW2d 875 (opinion J.); Kelly, Blessing, 51; (1966) 378 Mich 142 NW2d 709 JJ.). (opinions Kelly, O’Hara, Black, People v Pennington, 178 NW2d 471 (1970), however, this Court recognized the suprem acy of federal law and held unconstitutional final 1963, sentence 1, 11, Const art § extent it conflicted with Mapp. People Still, v in Moore, 391 Mich (1974), NW2d we gave limited force to the final sentence of Const 1963, 1, art 11. We stated that sentence § precludes a higher standard of reasonableness searches that uncover narcotics or firearms than the standard imposed on us federal law. Brickley,

Necessarily in subsumed our statement Moore 1963, 1, § 11 is the conclusion that Const art does preclude higher a standard than the federal people adopted standard. When of this state they 1963, 1, 11,§ the third sentence of Const art first,two. adopted nearly sentences, also Those identical to those contained in the Fourth Amend- part Michigan’s ment, had been Constitutions 1835, 1, § 8; 1850, 1835. since See Const art Const 6, § art 26. It was under those sentences that this body Court created a of state constitutional search adopted exclusionary rule, and seizure law and an subject all before either was to a federal floor. We necessarily cannot view the final sentence of Const against evolving 1963, 1, § art anas interdiction concepts of reasonablenеss under the first two Though people sentences. igan of the State of Mich- they have corrected this Court when have gone far, believed it to have too the historical general power of this Court to construe the consti- provision relating tutional to searches and seizures history has not been removed. The of Const plain import, suggest 1, § 11, art however, its expansion, further its with the concomitant expansion exclusionary it, rule to enforce only compelling should occur when there is a reason to do so. suggests

Defendant that we read v Sec height rest to mean that because there can be no weapons ened standard of reasonableness when or heightened seized, narcotics are there is a stan Considering history dard in all other cases. language 1, 11, of Const § art it would be illogic an have, incredible act of to do so. We on Michigan (cid:127)occasion, in a construed the Constitution greater rights manner which results than those given by e.g., People constitution, see, federal Nash Opinion by Brickley, J. Beavers, (1975), 393 Mich 227 NW2d 511 reason, compelling where there is we will undoubt however, again. not, do so edly We have created per higher se standard because any just weapons are not narcotics involved.4 We can of no why conceive reason the search of dwelling a сardboard box outside the door of a subject should be to a standard of reasonableness higher than that required by the Fourth Amend- ment. We hold that the evidence of the body of victim and the bullets recovered from it prop- at trial in this case. erly introduced

II We next consider whether evidence that items were seized from the office of defendant’s attorney was properly introduced at trial. prior

Sometime to defendant’s ex- preliminary amination, prosecutor received a letter from counsel, defense which stated: dissenting analysis, Our brother Justice Cavanagh, in to this correct when he notes that the standard reasonableness and the application should be exclusionary Michigan of the rule under the Constitution analytically separate inquiries. Unfortunately, assump- remedy tion that the standard of reasonableness and the for breach of inexorably permeates prior that standard are linked decisions of this Moore, supra, Court. This Court’s statement the anti-exclu- sionary-rule proviso ness precluded of art a standard § of reasonable- higher weapons than that of the federal constitution when or analytically narcotics are involved likewise makes this incorrect assumption. merely expanded assumption Secrest on that incоrrect weapons involved, state that when or narcotics are not the standard of reasonableness for searches that reveal all other items must be higher. We, therefore, analysis involving are left with whether our of issues anti-exclusionary-rule proviso standard of reasonableness and the writing should be as it has been or as it should be. Were we on a slate, separate analyses Michigan blank we would our of whether the Constitution has been violated and whether that violation calls for application Michigan exclusionary common-law rule. To do so now, however, overruling would necessitáte both and Secrest. Moore Beicklby, opinion received an informal ethics "Pursuant advising Michigan, you I am Bar of

from State ** * my I office certain materials hereby that have in this matter.” may constitute evidence which The letter listed: 2) box, contents; believed contain wallet and "D (2) 3) revolver,

ammunition; believed to contain two 4) cartridges; spent and holster.” police days later, the arrived at defense Several ‍‌​​​‌​​​​‌​​​​​‌​​​‌‌​‌‌​​‌‌‌‌‌‌‌‌​‌​‌​​‌‌​‌​‌​​‍presented a counsel’s office and search warrant the items listed in his letter. Defense counsel’s partner containing

produced bags, for the officers two one belonged wallet,

the which to the vic- containing tim, revolver, another the whiсh and weapon, later determined to be the murder was ammunition, possession and the holster. officers took bags departed. and During trial, the officer who executed the war- prosecution, objec- rant testified for the without revolver, wallet, tion, ammunition, that during holster had been seized search warrant at defense the execution of a office. The

counsel’s prosecutor commented on the location of the evi- during argument closing dence when seized his jury. Appeals The Court of found that defense counsel duty physical had a to turn the over to evidence doing and that so did not violate attorney-client privilege. accepted It defendant’s argument was, however, it a violation of the attorney-client privilege police officer to for the testify physical that the from evidence was seized adopting specifically counsel, the office of defense approach Washington Supreme in Court Olwell, State ex rel Sowers v 2d Wash Nash Opinion by Brickley, Additionally, P2d the Court found that admission of the source of the physical more than prejudicial probative, violation Court, of MRE 403. Defendant contends this as Appeals, she did in the Court of the introduc reversal, tion of the was error requiring evidence, implicating attorney-client рrivilege and the Amendment.5 Sixth outset,

At we our express dismay over what reported increasing is to be an trend toward law searches, office with concern that such a practice take root in this may state. The issue of the searches, propriety of third-party partic- more offices, ularly receiving grow- the search of law See, e.g., Law Offices of ing judicial attention. MacFarlane, D Morley, Bernard PC v 647 P2d Johnson, (Colo, 1982); O’Connor v 287 NW2d Los (Minn, 1979); 400 Deukmejian Angeles Supe- Court, rior 253; 103 Cal 3d App Rptr 162 Cal 857 (1980); Bloom, The Law Office Search: An Emerg- ing Solutions, Problem and Some Suggested 69 (1980). L 1 Georgetown J The specter of law-en- forcement officers rummaging through the files papers and of a nonsuspect lawyer’s office has grave implications involving not only attorney- client privilege of the suspect and all other clients of the attorney, but also the constitutional rights against self-incrimination and of counsel. See Note, The Assault on the Citadel of Privilege 5No direct evidence was ever introduced at trial that defendant gave question the items in to defense counsel. Defendant moved in Appeals the establishing purpose Court of for remand to the trial court for the attorney-client privi a factual basis for the claim of the lege. opposed by prosecutor Thе motion was and was denied. The prosecutor now contends that there are insufficient facts in the record privilege. this Court to evaluate the claim of the Defendant has counsel, giving admitted in this Court the items to defense we and accept objection admission, however, that admission. Given that and because no court, was raised in the trial we find no error under MRE 403 on the facts of this case. . Brickley, Apace: Law Unreasonableness of

Proceeds Searches, L Rev 708 49 Fordham Office Supreme Although Court has States the United nonsuspect constitutional, Zurcher searches ruled Daily, L 547; 98 Ct 436 US S v Stanford (1978), troubling nature of this 2d 525 Ed activity normally this Court is remains. Because it, and of the case before limited to the strictures competing policy multifarious and consid- because activity involved, itself are this lends erations e.g., legislative particularly See, action. well to Legislature approach the California innovative requires § 1524, which in California Penal Code attorney special appointment of an master nonsuspect professional a conduct the search of privilege. See, also, a state law whose clients have 2000aa-ll(a) seq.; 59.1 CFR et Or USC Stat, § 9.695. Rev presents issue, narrower

The case before us require us to consider all the one which does not hоpe third-party But ramifications of searches. we that before such a case comes before this Court our third-party

Legislature examines the use of they warrants, at search at least as are directed law offices. present challenge case,

In there was no war- made to the execution of the warrant. The sought only physical, rant non-testimonial evi- sought documentary dence. No evidence was or subjected seized, and the law office files were not Finally, a search. the evidence was volunteered leads us to surrendered a manner that believe that the use of the warrant was a needless formality. only here We therefore consider question testimony whether the officer’s evidence was seized from defense office counsel’s proper. People v Nash Opinion by Brickley,

Although this Court has never addressed whether an attorney must turn voluntarily over the police physical evidence of a crime received during representation client, of a juris- those dictions that have addressed the question have found exists, that such a duty particularly when the evidence is the of a instrumentality crime or See, e.g., In re Ryder, 381 F2d 713 (CA contraband. 4, 1967), (ED affirming Supp Va, 263 F 1967); People v Swearingen, (Colo, 649 P2d 1102 1982); Alaska, Morrell v (Alas, State 1978); P2d 1200 Olwell, ex rel Sowers v suprа; State, Anderson v (Fla 1974). 297 So 2d 871 App, We align Michigan with those jurisdictions on that question and find that defense counsel acted properly notifying possession his of the evidence.

The purpose of the attorney-client privilege is to open foster communications between attorney and client. Lindsay Lipson, 367 Mich 116 NW2d 60 (1962). privilege The is personal to the client and cannot be waived attorney without Vinton, permission. client’s Schaibly v 338 Mich 191; 61 NW2d 122 privi- result of the lege, however, requires scope its kept be carefully circumscribed: privilege exception remains an general "[T]he to the duty to disclose. Its benefits specula- are all indirect and * * * tive; its plain obstruction is It concrete.

worth preserving for general the sake of a policy, but it is nonetheless an obstacle investigation ought truth. It strictly confined within the nar- possible rowest limits logic consistent with the of its principle.” Wigmore, rev), (McNaughton Evidence 2291, p 554. § That the evidence involved in present case was physical and non-testimonial disputed. is not Less Brickley, J. relat- testimony whether certain, dispute, in is is testi- the evidence physical the source of ing to attorney-client privi- the infringes on mony which lege. Olwell, with a supra, was served attorney

In the tecum, presence his subpoena duces which directed produce him to and ordered inquest at a coroner’s to belonged possession knives in his any re- hearing, attorney At the the persons. certain a knife that was produce about or testify fused to cited for attorney The his client. owned the order of con- reversing of court. contempt held that Court Washington Supreme the tempt, requir- face for was defective on its subpoena the re- about information ing attorney testify the the client. The court added: ceived from not, however, holding, imply mean to by so "We do by the permanently be withheld evidence can privi- attorney-client claim of the attorney under the Here, balancing process lege. consider the we must public attorney-client privilege and the between the investigation. agreement in in We are interest criminal privilege applicable to the attorney-client that knife held privilege is the agree that the as an officer of the

by appellant, but do not attorney, the warrants court, being properly withholding from it after [sic] requested produce attorney The should not the same. (such knife, depository be a for criminal evidence as a etc.), in has weapons, property, other stolen which itself little, purposes aiding any, if material value for the preparation his counsеl case. able own motion of the defense of client’s * * * attorney, It follows that the after reason- should, court, on his period, as an officer prosecution. turn the same over privilege think preserved should and attorney-client "We though attorney can even surrenders be possession. prosecution, the evidence he has in his upon receipt charge against attorney, of such from an where evidence contemplated is attorney’s client Nash Opinion by Brickley, future), (presently or in the should well aware of the Therefore, attorney-client privilege. existence state, attempting when to introduce such evidence at trial, precautions take should extreme to make certain that the source of the is not disclosed presence the jury prejudicial error Olwell, supra, committed.” 64 Wash 2d 833-834. analysis

findWe the Olwell court’s less than convincing. privi- court The found the knife to be leged, but, nevertheless, it held that had to be police by attorney. turned over the the The attempted by allowing court to solve this dilemma keeping the of the introduction evidence while its only accept- difficulty a source secret. We not have ing inconsistency allowing privileged the of items evidence, into we but are further troubled the application principles. result of the the of Olwell jury present The in the case had before it evi- body dence a with of two bullet wounds. Evidence question had shown the in revolver was the weapon, belonged murder the revolver to the testimony victim, and was received that showed previous Applica- that defendant had to it. access gap sequence tion of Olwell a would create in the gun accused, events that would link the leaving jury speculate police the as to how the Application had obtained the revolver. of Olwell to the ammunition, wallet and the even where defen- fingerprints dant’s were found on bul- two the jury identity lets, would withhold from the the previous possessor of the items and render meaningless. relevant evidence Yet there would ‍‌​​​‌​​​​‌​​​​​‌​​​‌‌​‌‌​​‌‌‌‌‌‌‌‌​‌​‌​​‌‌​‌​‌​​‍be appreciable protection no increase in the of com- Only possession munications. the client’s of rele- physical protected, making vant evidence would be attorney participant destruction, in the in evidentiary sense, of relevant evidence. Mich Brickley, physi- physical Olwell, like the evidence present case, confi- not a in the evidence cal In both Olwell communication. dential present knowledge attorney gained case, the communica- a confidential as a result of reasoning, in thе court’s The flaw Olwell tion. however, privilege to an is extended is that physical possession attorney’s item, rather of a knowledge gained from a confidential than to the therefore, is, forced to The court communication. privi- attorney-client principles of the reconcile the seemingly lege rule that an inconsistent with the physical attorney duty evidence. to turn over has a making that the the fact inadmissible It did so attorney. from the the evidence received purpose nothing to further a rule does Such merely privilege attorney-client and instead truth-seeking impair a trial. function of acts to approach by the court taken find the We Rptr People Meredith, 682; 175 Cal 29 Cal 3d (1981), compelling a more to have 612; 631 P2d application. practical and rationale attorney the de- Meredith, learned from the disposed of incrim- had that the defendant fendant (a belong- partially inating ing burned wallet victim) in a trash barrel behind attorney in- had his The residence. codefendant’s vestigator go wallet, and scene, the the retrieve attorney bring then office. The it to the law back police, voluntarily over to the turned the wallet agreement introduced it could be with the investigator as trial, testified At into evidence. it was found. when to the location of wallet Supreme the con- Court noted The California attor- claim of the inherent when a that are flicts ney-client pres- privilege As does the is involved. presented with a case case, the court ent Meredith v Nash Opinion by Brickley, physical impor- where the location evidence was Referring tant. to the "venerable” case of State v (1882), Douglass, 20 W Va 770 as well as more Olwell, recent decisions such as court con- attorney-client, privilege cluded that extended only communications, but also to observa- consequence protected tions made as a commu- distinguished court, however, nications. The cases attorney’s where the actions somehow alter the by moving evidence, either actual alteration or interrup- cases, it from its location. In these custody requires tion of the chain of that evidence original of the item’s condition or location be approach, admitted at trial. We think that this approach properly Olwell, contrast to the draws admissibility logical line of at the most point, scope purpose workable where the privilege truth-seeking declines and the inter- justice est of the administration of rises. agree Supreme

We with the California Court approach years ago that the taken over a hundred Douglass proper approach today. in attorney-client privilege is still the only

extends not to com- munications, but to observations made as a result attorney. of communications with an Defense present counsel case could not have been testify forced to that he saw the revolver in defen- possession, long dant’s so as the observation re- sulted from a confidential communication. But we attorney also see a difference between an observ- ing knowing evidence and of its location and an attorney taking possession of evidence from a place he has learned about from his client. In the attorney destroys, latter diminishes, case the if not the usefulness of evidence. And it makes no differ- "place” ence that the from where the evidence is agree taken is the client. We with the California Mich Brickley, "might en- rule contrary Court that a Supreme the to seize counsel to race courage defense Meredith, p 694. supra, evidence”. critical In re 1976 Grand support from draw further We (CA 7, 1976), where defense 534 F2d 719 Jury, knowing his client from accepted money counsel robbery. a bank the of proceeds that it was the defense finding lower court a upholding to honor a refusing for contempt counsel was him to the оrdering produce subpoena grand jury received, delivery the of court held that the money was not attorney from the defendant money itself was money The communication. privileged a to the reference Except for court’s non-testimonial. conduct, applicable here: reasoning its criminal conduct money was not assertive delivery of the "The and, communication, privileged not a therefore was and as we observed, non-testimonial. money itself is the just * * * reason, any based on authority or There is no privilege, attorney-client or the provision constitutional the fruits of act of inquiry either shielding judicial from for the turning the later criminal the fact of robbery or Accordingly, it is appellant. money the to over subpoena appel- responding to immaterial lant will be turned over making about who an assertion Id., opinion). p (majority money when.” we set down principles are satisfied that We Amendment the Sixth adequately protect today does privilege attorney-client to counsel. The right the attor- situations where protect not extend character way in some altered has ney has taken evidence, attorney including where attorney possession. into his evi- course, physical possession take may, the defense prepаre necessary when dence knowl- however, so, with client. He will do reasonable must, within the evidence edge that Nash Opinion Boyle, J. applicable authorities to the time, over be turned of the of the character that his alteration or otherwise from its source removal evidence privileged at trial. will not become a the law office wish to see do not We depository instrumentalities for contraband require principles not defense do These crime. them. But of the the work to do counsel interrupt attorney they to allow neither do standing way police by of the in the work of the evidence. normal flow of foregoing, court did not the trial

In view of allowing testimony that items into evidence err the office of defense counsel. were seized from I concur in the result and rationale J. Boyle, respects except opinion in all Brickley’s Justice permitting attorney an it can be read as insofar as compelled testify that he received evidence to be from defendant. The instant case does not infringement present question any since of the this privilege was the sheriff testified avoided because regarding his seizure of the evidence from the attorney’s office. require Brickley’s

Justice rationale de- would attorney testify only gun fendant’s that the possession, in his but that it was received specter from the defendant. Since the of defen- against attorney testifying dant’s own him or her undermining would have the effect of the defense eyes appear in the factfinder, it that would attorney disqualified. would have to be DR 5- 102(B). far-ranging ques- This issue raises difficult and regarding attorney’s tions an conflict between responsibility public responsi- and counsel’s bility to the I client. think we should not deal with Ryan, J. presented question are with a record until we

this compels resolution. a Williams, C.J., J. Boyle, concurred with reasoning and result of I concur in the Ryan, Brickley’s opinion, holding part I of Justice question and seizure of of the box in the search the defendant’s state1 contents did not violate against protection and federal2 constitutional seizure. search and warrantless agree, my however, with brother’s treat- I not do part attorney-client privilege issue in of the ment II of opinion. I am the Like Justice Kavanagh, correctly by decided that this issue was the view Appeals. Court of the produced prosecuting attorney evi

When the revolver, wallet, ammunition, and that the dence independently holster, defendant, linked to the which were from defense had been obtained the attorney-client office, the defendant’s counsel’s privilege wаs violated.3

Certainly the articles seized from the defense "privileged” any were attor counsel’s office ney-client not privilege However, sense. the circum that the items were delivered to stantial evidence the of the defendant’s confidential communications to integral part attorney by the defendant was an attorney concerning against her the case her. ^[2] 1 US Const Const, Am IV. Brickley art 1, 11.§ in his opinion, ante, p 216, privilege respecting attorney-client in that gap sequence way that "would create a gun accused, events that would link the to the leaving speculate police jury to how the to as revolver”, had obtained the it is a settled and from the defendant items in possession by permit waive her with the accompanied by ^[4] Just as it is Needless to his her client, question, pending prosecution. attorney-client privilege of the articles in attorney logical it is say, some nor could there there is no record evidence of to her to do so. equally to infer from the defense counsel’s explanatory lawyer question logical associated with the be, statement to infer that that unless the defendant wished to give they evidence on the associating were any delivered communication delivery delivery unexplained the articles point to him was or Mich Cavanagh, privi- of our that accepted principle jurisprudence leged lawyer communications between and client protected expense truth-seeking are at some to the it would process. preferable jury While that case, know all of facts of the including theoret- ically all statements made the defendant to anyone including accept her we in our lawyer, jurisprudence a measure of interference with full price paying disclosure of all the facts as a worth free, full, encourage and fearless communication case, lawyer. price a client to a this an absence of evidence to the as location from the police incriminating which obtained the items. A disclosure to the jury of the source of the incriminating items violated the defendant’s attor- ney-client privilege and denied the defendant a fair trial.

I would affirm the decision of the Court of Appeals. Cavanagh, result, J. I concur in the but not the Brickley’s

reasoning, I of Part brother my opinion insofar as it holds the search box in question and the seizure of contents did its not violate defendant’s state and federal constitu- tional rights to be free from unreasonable searches However, and seizures. there is no decide need to in this case whеther art of the state consti- § tution imposes higher standard by which review conduct during searches and seizures than does the Fourth Amendment to the federal Rather, constitution. issue should not be ad- dressed until presented in a which requires case its resolution. we need not Accordingly, overrule Secrest, our in part recent decision 321 NW2d 368 I take especially exception reasoning Brickley’s my brother opinion insofar as its con- People v Nash by Dissenting Opinion Kavanagh, J. under higher there is no standard elusion that on the electorate’s ad- constitution is based state rule. That rule exclusionary mitted disdain for imposed by created and merely remedy is a conduct; police to deter unconstitutional judiciary either the state or the by it is not mandated Indeed, reasoning which con- federal constitution. require that the state constitution does not cludes police to review con- higher standard which and seizures because during merely duct searches remedy imposed of this state dislike the people the standard to deter conduct which violates is imposed by faulty. Simply constitution stated, required the state constitu- standard created, judicially tion has no relation to the but mandated, constitutionally remedy imposed not of that standard. deter violations Ryan’s agree I with brother Finally, my analysis regarding and conclusion as to the issue the attor- in this case. I ney-client privilege Accordingly, do Brickley’s II my opinion, Part brother join agree but the defendant’s conviction must be reversed.

Kavanagh, Judge opinion Mackenzie’s Nash, Appeals the Court of 110 Mich (1981), App addressing 313 NW2d 307 failure of the trial court suppress abode, seized from the box front of defendant’s fully and forth the law. That accurately ‍‌​​​‌​​​​‌​​​​​‌​​​‌‌​‌‌​​‌‌‌‌‌‌‌‌​‌​‌​​‌‌​‌​‌​​‍sets suppression Court’s decision to reverse and order correct for the reasons stated therein and should be affirmed.

Likewise the decision that it was error to allow to learn the source of the evidence ob- jury tained warrant from attorney defendant’s Judge correct for the stated reasons Mackenzie and, hence, should also be affirmed. Mich 196 Dissenting Opinion Kavanagh, J. raised on of other issues also treats opinion

Her Court, pressed appeal on but to that appeal thereon. opinion no express we Accordingly, here. affirm. We would Kavanagh,

Levin, J., with concurred dant’s counsel did the admission of the to since the the Mich from the defendant’s correctly object As Justice attorney does not notes later privilege NW2d absent preclude officer’s the client’s personal attorney’s office. object his notes opinion, the defendant from testimony on to the client and cannot be waived permission. attorney-client privilege grounds ante, that he recovered the evidence However, p Schaibly asserting the as Justice attorney’s v the Vinton, the defen- Brickley privilege failure to Nash Ryan, J. the logical from to be drawn inference most The incriminating possession counsel’s defense undoubtedly prosecutor the evidence, the one the items were drawn, that was would intended That his client. counsel to the defense handed fact, showing proved by circumstantially counsel’s from the defense obtained items were or, privileged at conduct assertive office, either was very com behavioral least, the nonverbal any ponent the defendant from communication accompanied delivery attorney which her to items.4 my Brickley observes, it was As brother duty attorney’s over to turn the items defense time, police, it was same did so. At the and he respect duty attorney’s prosecuting the privileged confidentiality the most the fact that logical the defense drawn from to be inference they possession was that of the items counsel’s prosecutor to him from defendant. came disclosing jury duty, by violated that coun- from defense the articles were obtained sel’s office. quite my observes, true, it is as brother While

Case Details

Case Name: People v. Nash

Court Name: Michigan Supreme Court

Date Published: Dec 19, 1983

Citation: 341 N.W.2d 439

Docket Number: 68280, (Calendar No. 9)

Court Abbreviation: Mich.