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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

In <em><a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20161011_C327767_30_327767.OPN.PDF" target="_blank" rel="noreferrer noopener">People v. Mahdi</a></em>, No. 327767, the Court of Appeals held that the consent to search an apartment for the limited purpose of uncovering illegal drugs does not constitute consent to seize any item. Therefore, the seizure of defendant’s cell phone, wallet, and keys pursuant to the consent exception violated his Fourth Amendment protection against unreasonable searches and seizures. Accordingly, evidence regarding the items seized in violation of the Fourth Amendment should have been excluded at trial and defendant was entitled to a new trial.

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Defendant appealed his convictions regarding possession with intent to deliver a controlled substance and possession with intent to deliver marijuana. The facts regarding the seizure of evidence form the basis of defendant’s appeal. Officers executed a search warrant at 45 Lantern Lane, an apartment in Pontiac, Michigan. &nbsp;Before executing the warrant, an officer observed the defendant standing behind a Buick in the parking lot and walking into 44 Cherry Hill, another apartment in the complex. Officers searched 45 Lantern Lane. Following the search, they spotted a small bag of marijuana in the Buick in the parking lot. Officers then went to 44 Cherry Hill and knocked on the door. Defendant answered and officers subsequently arrested him for possession of marijuana. &nbsp;The officers then spoke to defendant’s mother, who indicated that 44 Cherry Hill was her apartment. An officer explained that her son was involved in an investigation for drug trafficking and wanted “to make sure that he didn’t have any drugs hidden in her house that she didn’t know about.” Defendant’s mother gave the officers permission to search the apartment.

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The officers did not find contraband or drugs in the apartment at 44 Cherry Hill. However, they seized a cell phone, wallet and a set of keys belonging to defendant. An officer used the keys to unlock the Buick and retrieve the marijuana inside. The officers confiscated marijuana, heroin, cocaine, and drug packaging items from 45 Lantern Lane. &nbsp;While writing the police report, one officer kept the cell phone seized from 44 Cherry Hill. The phone rang several times and received text messages mentioning defendant’s name and requesting drugs from defendant. Before trial, defense counsel filed a motion to suppress the wallet, keys, and cell phone because the items were outside the scope of the search defendant’s mother permitted. The trial court denied the motion and admitted evidence stemming from the items. Defendant was convicted and sentenced. Defendant appealed.

The Court of Appeals considered whether the seizure of the cell phone, wallet, and keys from 44 Cherry Hill, as well as the subsequent search of the cell phone, violated defendant’s Fourth Amendment protection against unreasonable searches and seizures. The Court determined that the seizure of the items was unreasonable because the police obtained the items pursuant to a warrantless seizure and no exception to the warrant requirement applied. &nbsp;The consent exception to the warrant requirement did not apply because the items seized fell outside the scope of consent. Particularly, the officers asked defendant’s mother to search the apartment for illegal drugs and she consented to the search. A reasonable person would have believed that the scope of the search pertained to illegal drugs hidden in the apartment. Consequently, the mother’s consent to search the apartment for the limited purpose of uncovering illegal drugs did not constitute consent to seize the defendant’s wallet, keys and cell phone.

Additionally, other exceptions to the warrant requirement did not apply. The plain view exception did not apply because the incriminating character of the items seized was not immediately apparent—further investigation was necessary to establish a connection between the items and criminal activity. Furthermore, the fact that defendant had probationary status did not allow officers without a warrant to seize items based on reasonable suspicion of criminal activity because defendant’s probation conditions did not appear in the trial court record. Moreover, even if defendant’s probation conditions did allow warrantless searches, the incriminating nature of the items seized from 44 Cherry Hill was not immediately apparent and did not fall under the plain view exception. In addition, the officers lacked a reasonable suspicion that the items were used for illegal drug activities. Finally, the inevitable discovery doctrine did not apply.

Therefore, evidence pertaining to the cell phone, keys and wallet should have been excluded from evidence at trial. The Court of Appeals granted a new trial because the prosecution failed to establish that the admission of evidence was harmless beyond a reasonable doubt.&nbsp;

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Madelaine C. Lane

Labor and Employment

Police Beware: Consent to search dwelling for illegal drugs is not consent to seize defendant’s cell phone, wallet, and keys

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Police Beware: Consent to search dwelling for illegal drugs is not consent to seize defendant’s cell phone, wallet, and keys

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