Opinion
Docket Nos. 65795, 66439.
Decided October 25, 1983. Leave to appeal denied, 419 Mich ___.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Nick O. Holowka, Prosecuting Attorney, for the people.
N.C. Deday LaRene, for defendant on appeal.
The people charged defendant with possession, with intent to deliver, of 650 grams or more of a controlled substance, cocaine. MCL 333.7401, subds (1) and (2)(a)(i); MSA 14.15(7401), subds (1) and (2)(a)(i). Following a bench trial, the court found defendant guilty as charged. However, pursuant to the trial court's November 9, 1981, opinion that the penalty provision stated in MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i) was unconstitutional because it is irrational and a denial of equal protection to classify cocaine as a narcotic drug for punishment purposes, the court instead sentenced defendant to four years and eight months to seven years in prison pursuant to MCL 333.7401(2)(b); MSA 14.15(7401)(2)(b).
Defendant appeals as of right (Docket No. 66439) the trial court's denial of his motion to suppress evidence seized from his home and the trial court's sua sponte setting aside of his conditional plea of guilty.
The people appeal as of right (Docket No. 65795) the trial court's ruling regarding the penalty provisions of the controlled substance provisions of the Public Health Code, MCL 333.7401 et seq.; MSA 14.15(7401) et seq.
The evidence at the hearing on defendant's motion to suppress showed that Michigan State Police Trooper Robert Bertee and Lapeer County Sheriff's Department Sergeant Thomas Fischhaber drove in plain clothes and an unmarked car to defendant's rural Lapeer County home based upon an informant's tip that defendant sold and used cocaine. The officers wished to obtain the license plate number on defendant's jeep, which was previously seen parked in defendant's driveway.
Defendant's driveway is long and circular. Defendant parked his jeep in front of his house about two-tenths of a mile from the public road. Halfway up the driveway was a rail fence that did not have gates or enclose defendant's property. Defendant did not post "no trespassing" signs on his property.
The officers pulled up into defendant's driveway to just behind defendant's jeep because they could not identify the vehicle's license number from the road even with the aid of binoculars or a telescope. Trooper Bertee saw defendant look at the officers through a window and come to the front door. In order to avoid defendant's suspicion and also to observe defendant's appearance, Trooper Bertee went to defendant's door and knocked. Bertee had previously noticed defendant's neighbor advertise by a posted sign that he sold wood-burning stoves and firewood. When defendant answered his door, Bertee asked if he was the person selling wood stoves. Defendant answered negatively and pointed to his neighbor's house as the place where Bertee could purchase a wood-burning stove. Defendant and Trooper Bertee began to discuss fireplaces and stoves. Defendant told Bertee that he heated his home with two wood-burning fireplace stoves and invited Bertee into his home to look them over. Trooper Bertee first declined defendant's invitation but defendant told him it would be no bother for him to come in to see the stoves.
While following defendant through the kitchen, Trooper Bertee observed six clear plastic packets containing white powder on the kitchen table and a saucer containing white powder on a countertop. Bertee recognized the powder as cocaine.
When Trooper Bertee left defendant's residence some 10 to 15 minutes after defendant invited him inside, he and Sgt. Fischhaber visited defendant's wood stove-selling neighbor in order to avoid suspicion and then went to the Lapeer County Intelligence Unit's office to prepare a search warrant. A Lapeer County Circuit Court judge authorized the warrant. Officers executed the search of defendant's house that same evening and confiscated 1,658 grams of cocaine.
Defendant argues that the cocaine seized by way of search warrant should have been suppressed for two reasons. First, Trooper Bertee and Sgt. Fischhaber illegally trespassed upon the curtilage of his home to obtain his license number. This trespass, argues defendant, violated defendant's reasonable expectations of privacy, thus violating his Fourth Amendment protections. Secondly, the officer entered his home based upon an improper ruse, again in violation of defendant's Fourth Amendment protections. Defendant contends that, because these initial searches were warrantless and unreasonable, and the information gained by those tainted searches was integral to the showing of probable cause for the issuance of the search warrant, the warrant itself was tainted. Therefore, the cocaine and other evidence seized when the warrant was executed should have been suppressed.
For many years, courts held that searches of areas surrounding a home were or were not unreasonable based upon old property concepts. In People v Taylor, 2 Mich. 250, 252 (1851), quoting Chitty, General Practice, 175, the Court defined curtilage as:
"'In its most comprehensive and proper legal signification it includes all that space of ground and buildings thereon, which is usually enclosed within the general fence, immediately surrounding a principal messuage, out-buildings and yard, closely adjoining to a dwelling-house, but it may be large enough for cattle to be levant and couchant therein.'" (Emphasis in original.)
Courts considered trespass upon a defendant's curtilage for search purposes per se unreasonable. Pursuant to this definition and legal doctrine, the officers in this case did trespass upon defendant's curtilage by searching for the license plate number on defendant's driveway immediately adjacent to his house.
However, the standard for determining when a search of an area surrounding a residence violates Fourth Amendment guarantees no longer depends upon outmoded property concepts. United States v Ventling, 678 F.2d 63, 66 (CA 8, 1982); People v Wagner, 114 Mich. App. 541, 547; 320 N.W.2d 251 (1982). Rather, for a violation of a defendant's Fourth Amendment rights to occur, the defendant must have a reasonable expectation of privacy in the area searched. Katz v United States, 389 U.S. 347; 88 S Ct 507; 18 L Ed 2d 576 (1967); People v Whalen, 390 Mich. 672, 677; 213 N.W.2d 116 (1973). However, the fact that the area searched was within the defendant's curtilage is still a factor a court must consider before determining whether the defendant had a reasonable expectation of privacy in that area.
"There is no single factor which is determinative of an individual's reasonable expectation of privacy. Among the factors mentioned by various courts are: whether the area is within the curtilage of a residence, whether it is open to view from a public area, whether the property was owned by the defendant or in some way controlled by him, whether the defendant had a subjective expectation of privacy, whether the area was enclosed, whether the area was posted against trespass, whether there were obstructions to vision, or whether the area was in fact frequented by neighbors or strangers. We also recognize that a person may permit or even invite intrusion by friends or neighbors into areas as to which he has a reasonable expectation of privacy regarding intrusion by authorities." People v Dinsmore, 103 Mich. App. 660, 669; 303 N.W.2d 857 (1981), lv den 411 Mich. 1071 (1981).
In this case, the trial judge found that defendant did not have a reasonable expectation of privacy in that area of his driveway that the officers drove onto to obtain the license plate number. The court found the driveway to be open and that defendant should reasonably expect people to drive onto it, even though it was a long distance from the public road.
We reverse a trial court's decision on a motion to suppress if that court abused its discretion or its decision was clearly erroneous. People v Potter, 115 Mich. App. 125, 134; 320 N.W.2d 313 (1982); People v McIntosh, 110 Mich. App. 139, 146; 312 N.W.2d 415 (1981). We find no such abuse or error here.
While defendant may have had some expectation of privacy in the area of his driveway adjacent to his house, that expectation was not reasonable under these circumstances. First, defendant could not have a reasonable expectation that his license plate number was private. See United States v Hensel, 509 F. Supp. 1376, 1386 (D Me, 1981), aff'd 699 F.2d 18 (CA 1, 1983). Secondly, the trial court was correct in finding that the defendant could not reasonably expect that individuals would not enter his driveway up to his house as the driveway was open, ungated, and "no trespassing" signs were not displayed. See Ventling, supra.
We also disagree with defendant's argument that Trooper Bertee's ruse entry into the house constituted an illegal search. An entry by an undercover police agent into a defendant's house by defendant's invitation is not illegal where the scope of the agent's visit is for the very purpose contemplated by the occupant or defendant. United States v Ressler, 536 F.2d 208, 211-212 (CA 7, 1976).
Defendant does not dispute that he consented to Bertee's entry. Nor do we find that the "ruse" Bertee employed invalidated that consensual entry. Bertee did not affirmatively misrepresent himself; he merely asked defendant if he was the individual living on that road who was selling wood-burning stoves. Bertee did not ask to come into defendant's home. Rather, defendant invited Bertee inside. Bertee accepted that invitation only after first refusing. Bertee did not conduct a search of defendant's home. Instead, he merely followed where defendant led. The cocaine Bertee observed in defendant's kitchen was openly displayed. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, supra, 389 U.S. 351. Therefore, we find that, because the scope of Bertee's entry was limited to the very purpose contemplated by defendant, it did not violate defendant's Fourth Amendment protection.
Thus we conclude that the information the investigating officers obtained that formed the basis of probable cause for issuing the search warrant was not illegally obtained in violation of defendant's Fourth Amendment protection to be free from unreasonable searches.
Defendant next argues that the trial court erred by sua sponte setting aside defendant's conditional plea of guilty. On January 25, 1982, after the trial court had already ruled that the penalty provided in MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i) was unconstitutional, defendant entered a conditional plea of guilty as charged. The conditions were defendant's retention of the right to challenge the trial court's denial of defendant's motion to suppress and with the understanding that the maximum prison sentence the court could impose on defendant would be seven years. The court did accept this conditional plea. However, on March 8, 1982, when defendant appeared for sentencing, the trial court sua sponte withdrew its acceptance of the conditional guilty plea. The court stated its concern about accepting the plea conditioned upon its prior ruling about the penalty provision of the Public Health Code. The trial court also noted that this Court had decided that trial courts should not accept conditional pleas. Thus, on its own motion, the trial court withdrew acceptance of defendant's guilty plea and re-entered a plea of not guilty on defendant's behalf.
GCR 1963, 785.7(6)(b) states:
"The court may take the plea under advisement.
* * *
"(b) After the court accepts the plea:
"(i) the court may set it aside on defendant's motion; or
"(ii) the court may sua sponte set it aside, but only with defendant's consent." (Emphasis added.)
Defendant argues that the above-emphasized language in the court rule vitiates the trial court's sua sponte motion as he did not consent to the setting aside of his conditional plea. We disagree as we do not read the court rule to mandate that a trial court receive a defendant's consent to set aside his plea where, as here, the plea is conditional.
We first note that the acceptability or validity of a conditional plea is questionable. There is now a split in this Court as to whether a conditional plea should be held invalid. See People v Ricky Smith, 85 Mich. App. 32; 270 N.W.2d 697 (1978) (2-1 decision for invalidity), People v Hubbard, 115 Mich. App. 73, 77; 320 N.W.2d 294 (1982) (invalid), and People v Thomas, 115 Mich. App. 586; 321 N.W.2d 742 (1982) (2-1 decision for validity). See, also, People v Puertas, 122 Mich. App. 626, 629; 332 N.W.2d 399 (1983).
Given that conditional guilty pleas are not mentioned or considered in the court rule, but noting that we do not decide here whether they are indeed valid or invalid as that issue is not now before us, we hold that the consent requirement in GCR 1963, 785.7(6)(b)(ii) applies only to accepted unconditional pleas of guilty or nolo contendere. Therefore, the trial court could sua sponte within its discretion move to set aside defendant's conditional plea without defendant's consent. Moreover, we do not find any abuse of discretion in the trial court's action in doing so. Defendant does not show that he was prejudiced by the setting aside of the conditional guilty plea.
We now address the people's appeal of the trial court's opinion finding that the penalty provision for a conviction of possession, with intent to deliver, of 650 or more grams of cocaine contained in the Public Health Code, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i), is unconstitutional.
The penalty provisions of the controlled substance provisions of the Public Health Code of 1978, 1978 PA 368, MCL 333.7401- 333.7415; MSA 14.15(7401)-14.15(7415), impose graduated penalties for the sale, manufacture, or delivery of drugs and the possession of drugs. The penalties for possession are identical to those for the sale or delivery of the same drugs. Section 7401 states in pertinent part:
"(1) Except as authorized by this article, a person shall not manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant.
"(2) A person who violates this section as to:
"(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv) and:
"(i) Which is in an amount of 650 grams or more of any mixture containing that substance is guilty of a felony and shall be imprisoned for life." (Emphasis added.)
The trial court found that the statutory classification of cocaine, a nonnarcotic and nonaddictive drug, along with heroin and other addictive narcotics for penalty purposes was irrational and denied a defendant convicted of possession of cocaine with intent to deliver of the equal protection of the law. The court made this finding following a hearing wherein defendant presented substantial scientific and medical evidence regarding the nature and use of cocaine.
This same issue was presented in People v Harman, 124 Mich. App. 93; 333 N.W.2d 591 (1983), where the defendant was charged with possession of 650 grams or more of cocaine and also faced mandatory life imprisonment if convicted as charged. MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i). The Harman Court held that the statutory scheme that placed cocaine in schedule 2 for penalty purposes does not violate the defendant's due process or equal protection rights under the federal or state constitutions. We agree.
The Harman decision and this Court in People v Kaigler, 116 Mich. App. 567; 323 N.W.2d 486 (1982), followed the reasoning of the Illinois Supreme Court in People v McCarty, 86 Ill.2d 247; 427 N.E.2d 147 (1981), a case upholding Illinois's classification of cocaine as a narcotic drug for penalty purposes. McCarty found that classification rational for the following reasons:
"(1) enormous profit from illegal cocaine traffic has led to a great deal of crime, including violent crime, as major importers and dealers compete with each other; (2) a strong correlation between the use of cocaine and the use of heroin and the opiates; (3) potential harm to a user inherent in the illegal use of cocaine including the danger inherent in the increase in the practice of smoking coca paste or freebase cocaine; and (4) the ongoing dispute in the scientific and medical community as to the potential harm inherent in the use of cocaine and the abundance of unresolved questions concerning the effect of cocaine on humans." Kaigler, p 571.
See, also, People v Lemble, 103 Mich. App. 220, 222-223; 303 N.W.2d 191 (1981), lv den 412 Mich. 888 (1981); People v Stout, 116 Mich. App. 726; 323 N.W.2d 532 (1982); People v Kirchoff, 120 Mich. App. 617; 327 N.W.2d 535 (1982); People v Puertas, supra.
We too find that the Legislature had a rational basis for penalizing cocaine possession with intent to deliver in the same fashion as possession of addictive narcotics with intent to deliver. Therefore, we reverse the lower court's November 9, 1981, order holding § 7401(2) unconstitutional and order this case remanded for resentencing pursuant to the proper penalty provision, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i).
Affirmed in part, reversed in part, and remanded.