Opinion
Docket No. 78-402.
Decided December 5, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Robert J. Sheiko, Assistant Prosecuting Attorney, for the people. Vesta Svenson, for defendant on appeal.
Defendant Robert Greenwood was charged with the burning of a building during the early morning hours of July 4, 1977, contrary to MCL 750.73; MSA 28.268. At the preliminary examination, Lieutenant James Szafran, an investigator for the City of Detroit, testified that he arrived to examine the area approximately 8 hours after the fire department responded to the blaze. During his exploration, Szafran found and collected evidence of the recent burning, and also took photographs of the scene. It was his conclusion that the fire was of an incendiary nature.
On the date set for trial, defense counsel moved to suppress any evidence gathered from the arson investigation because of the failure to procure a search warrant. Over the prosecution's objection that defendant lacked standing to complain of the search, the court below, on the authority of People v Tyler, 399 Mich. 564; 250 N.W.2d 467 (1977), ordered the evidence suppressed. As a result of this ruling, the prosecution indicated its inability to proceed and the case was dismissed without prejudice. From this dismissal the people appeal.
In Tyler, supra, the Michigan Supreme Court held that absent consent or abandonment, a warrant is required in order to re-enter and search an area once a fire has been extinguished and the fire fighters have left the premises. Tyler was subsequently appealed to the United States Supreme Court which substantially affirmed the previous decision. Michigan v Tyler, 436 U.S. 499; 98 S Ct 1942; 56 L Ed 2d 486 (1978).
In determining whether the trial court properly granted defendant's motion to suppress we must necessarily consider the prefatory issue of whether defendant had the requisite standing from which to voice his objection to the admission of the alleged unconstitutional evidence. Neither the United States Supreme Court Tyler opinion, nor the Michigan Supreme Court decision, specifically addressed this issue. However, those opinions spoke of protecting the expectation of privacy of persons who lived in their homes or worked in offices after those premises were burned. Michigan v Tyler, supra, 436 US at 505-506, People v Tyler, supra, at 582-583. Even where occupancy was impossible the United States Supreme Court stated that an expectation of privacy is warranted since "private effects often remain on the fire-damaged premises". Michigan v Tyler, supra, 436 US at 505. The Court consistently referred to "occupants" and "owners" as being those persons protected by the warrantless investigation of fire officials. Michigan v Tyler, supra, 436 US at 508-509.
The test for determining standing is summarized in Brown v United States, 411 U.S. 223, 229; 93 S Ct 1565; 36 L Ed 2d 208 (1973), as follows:
"[T]here is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure."
A defendant need only qualify under one of the three sections to contest a search. People v Ray Jackson, 71 Mich. App. 487, 489; 247 N.W.2d 382 (1976), People v Morgan Clark, 68 Mich. App. 674, 692; 243 N.W.2d 914 (1976) (NOBLE, J., dissenting). Yet, as Brown supra, indicates, defendant must normally demonstrate some legitimate interest in the premises searched or the objects seized, United States v Hunt, 505 F.2d 931, 939-940 (CA 5, 1974), cert den, 421 U.S. 975; 95 S Ct 1974; 44 L Ed 2d 466 (1975), and such inquiry has characteristically turned on the scope of defendant's "reasonable expectations of privacy". Hunt, supra, at 940. See Katz v United States, 389 U.S. 347; 88 S Ct 507; 19 L Ed 2d 576 (1967).
Michigan decisions have underscored the necessity that a defendant come within the ambit of these traditionally recognized connections with the territory subject to the intrusion. Thus, for example, in Jackson, supra, the Court, citing Brown, held that defendant lacked standing to object to the search of another's car subsequent to the arrest of defendant and out of his presence. Similarly, in People v Scott, 44 Mich. App. 462; 205 N.W.2d 291 (1973), defendant did not have standing to contest an invalid search of his girlfriend's residence. See also People v Hale, 7 Mich. App. 127; 151 N.W.2d 240 (1967), wherein it was determined that the accused could not object to a search and seizure of property owned by another.
Turning to the case at bar, we hold that defendant lacked the requisite standing to protest the introduction at trial of any incriminating evidence gathered during the post-fire investigation. From the information revealed in the transcript, defendant had no rights whatsoever in the searched premises and therefore no reasonable expectation of privacy. There is no showing that defendant was on the grounds at the time of or after the fire. Defendant himself admitted that he did not own or occupy the grounds on which the blaze occurred. Finally, defendant was not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence.
MCL 750.73; MSA 28.268 requires: (1) the burning of any building or other real property, or the contents thereof, and (2) that the fire was willfully or maliciously set. Possession of any instrumentality used to set the fire is not an essential element of the charged crime.
The evidence being properly admissible, the lower court erred in ordering its suppression. We therefore remand the case to the court below for trial on the charged offense. Because of our holding, we need not reach the question of whether the investigative entry, 8 hours subsequent to the fire, constituted an illegal search and seizure for lack of a valid warrant.
Reversed and remanded.