Opinion
No. 358358
05-05-2022
PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Brigitte Louise DEROUSSE, Defendant-Appellee.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Jerard M. Jarzynka, Prosecuting Attorney, and Matthew J. Way, Assistant Prosecuting Attorney, for the people. Collis, Griffor & Hendra, PC (by Stuart M. Collis, Beverly M. Griffor, Ypsilanti, and Andrew C. Hendra) for defendant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Jerard M. Jarzynka, Prosecuting Attorney, and Matthew J. Way, Assistant Prosecuting Attorney, for the people.
Collis, Griffor & Hendra, PC (by Stuart M. Collis, Beverly M. Griffor, Ypsilanti, and Andrew C. Hendra) for defendant.
Before: Boonstra, P.J., and M. J. Kelly and Swartzle, JJ.
M. J. Kelly, J.
The prosecution appeals by leave granted the trial court order partially granting the motion of defendant, Brigitte Derousse, to suppress evidence seized from two barns located outside the curtilage of Derousse's home . We affirm for the reasons stated in this opinion. I. BASIC FACTS
People v Derousse , unpublished order of the Court of Appeals, entered November 8, 2021 (Docket No. 358358).
The capitalization of defendant's name varies throughout the lower court record. This opinion uses "Derousse" rather than "DeRousse" in accordance with the felony information, defendant's motion to suppress evidence, and our order granting leave to appeal.
On November 7, 2019, Shawn Lutz, an animal control officer in Jackson County, responded to a call that there was a cow running loose. When he arrived, the cow was in the roadway. He sounded his horn and hollered, and in response, the beast meandered back to Derousse's property with Lutz following in his truck. Once on the property, the cow "jumped" the fence to its pen. Lutz, who intended to ensure that the cow was returned to its enclosure and to speak with its owner, observed an alarming number of dead animals on Derousse's property, including some in carcass form and some that were skeletal. He also saw three emaciated Labrador dogs. From the pole barn on the west side of the property (the "west pole barn"), he could hear the barking and yipping of additional dogs. However, he was unable to observe them because the barn was "secured and there [were] no windows." Lutz learned from a neighbor that there had been multiple complaints of "animals at large" on Derousse's property. Lutz later spoke with Derousse, who acknowledged that the cow that had been running loose was a problem. She also acknowledged that there were a large number of dead animals on the property, but she said she did not know how they had died. Lutz sought a search warrant because he was concerned about the number of dead animals and the emaciated condition of the three dogs he observed.
Lutz explained that the search warrant for Derousse's property was the second warrant he had prepared.
On November 8, 2019, he returned to Derousse's property with the warrant and seized approximately 35 animals. From the west pole barn, he seized 23 dogs. He testified that the dogs did not have access to food and that there was feces and urine—up to one inch thick in places—covering the floors. One of the dogs was eating feces. None of the dogs had access to drinking water. Instead, three of the dogs shared a five-gallon bucket with "marginal green water" at the bottom, which the dogs could not reach because of the depth of the bucket. The other dogs had water containers with a small amount of water that was contaminated by urine and feces. A medical examination showed that all of the dogs had internal and external parasites. One dog had a tumor on its stomach. From another pole barn on the east side of the property (the "east pole barn"), Lutz seized a raccoon and two cows. The cows did not have access to food or water. Their enclosure was barely large enough to allow them to turn, and the floor was covered with urine and feces. Lutz also seized several cows located in two outside pens. In both pens, the water provided for the cows was algae-infested and frozen. Hay was available in one pen, but it was covered in a netting. The hay outside the second pen was also covered in netting and the cows had eaten what they could reach from their enclosure. In order to access the hay, the cows in the south pen had to navigate two dead cows. There was also one cow that was so emaciated that it could not stand. The property also had carcasses of dead chickens, a lamb, and a large snapping turtle, which was in a burlap bag near a butcher knife.
Derousse was initially charged with abandonment of or cruelty to 4 to 10 animals, MCL 750.50(4)(c). However, on September 22, 2020, following a probable-cause hearing, the charges were amended to abandonment of or cruelty to 25 or more animals, MCL 750.50(4)(e). Derousse moved to suppress evidence regarding the seizure of the animals. Relevant to the issue raised on appeal, Derousse argued that the search warrant permitted officers to search "a single-family dwelling," which did not include the outbuildings on the property. Therefore, she contended that the searches of the pole barns were illegal. Derousse additionally argued that the warrant authorized the seizure of two silver Labradors, a chocolate Labrador, a French Bulldog, a Teacup Chihuahua, nine cows, three sheep, and items related to rabies vaccinations, but officers seized 23 dogs. Derousse argued that the dogs were illegally taken from a red pole barn that was not included in the search warrant. Derousse added that officers also seized a raccoon and the pelvis of a dead animal, which she believed were outside the scope of the warrant. Following an evidentiary hearing, the trial court partially granted Derousse's motion and suppressed the evidence seized from the two pole barns. This appeal by leave granted follows.
II. MOTION TO SUPPRESS
A. STANDARD OF REVIEW
The prosecution contends that the trial court erred by partially granting Derousse's motion to suppress. This Court reviews for clear error a trial court's findings at a suppression hearing. People v. Williams , 472 Mich. 308, 313, 696 N.W.2d 636 (2005). "A finding is clearly erroneous if it leaves this Court with a definite and firm conviction that the trial court made a mistake." People v. Dillon , 296 Mich.App. 506, 508, 822 N.W.2d 611 (2012). However, "the application of constitutional standards regarding searches and seizures to essentially uncontested facts is entitled to less deference; for this reason, we review de novo the trial court's ultimate ruling on the motion to suppress." Williams , 472 Mich. at 313, 696 N.W.2d 636. B. ANALYSIS
1. WARRANT REQUIREMENT
The prosecution first argues that the search of the barns did not violate the Fourth Amendment because the barns were located outside the curtilage of Derousse's home and Derousse did not have a reasonable expectation of privacy in either barn. We disagree.
The parties agreed below that the barns were located outside the curtilage of Derousse's home. Accordingly, that issue is not before us on appeal.
The Fourth Amendment of the Constitution of the United States guarantees to the people the right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const., Am. IV. It also provides that warrants shall not be issued except "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Id. Similarly, the Michigan Constitution guarantees that "[t]he person, houses, papers, possessions, electronic data, and electronic communications of every person shall be secure from unreasonable searches and seizures," and "[n]o warrant to search any place or to seize any person or things or to access electronic data or electronic communications shall issue without describing them, nor without probable cause, supported by oath or affirmation." Const. 1963, art. 1, § 11. Absent a compelling reason, Michigan courts must construe Const. 1963, art. 1, § 11 "to provide the same protection as that secured by the Fourth Amendment." People v. Collins , 438 Mich. 8, 25, 475 N.W.2d 684 (1991).
"A search within the meaning of the Fourth Amendment ‘occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.’ " People v. Jones , 279 Mich.App. 86, 91, 755 N.W.2d 224 (2008), quoting United States v. Jacobsen , 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). "The touchstone of the Fourth Amendment is reasonableness." People v. Hammerlund , 504 Mich. 442, 451, 939 N.W.2d 129 (2019). When "an individual has a reasonable expectation of privacy in the area searched, or the materials seized, a search has been conducted." People v. Whalen , 390 Mich. 672, 677, 213 N.W.2d 116 (1973). An expectation of privacy is reasonable "only if the individual exhibited an actual, subjective expectation of privacy and that actual expectation is one that society recognizes as reasonable." People v. Taylor , 253 Mich.App. 399, 404, 655 N.W.2d 291 (2002). "Whether the expectation exists, both subjectively and objectively, depends on the totality of the circumstances surrounding the intrusion." Id. at 405, 655 N.W.2d 291. When evaluating whether a defendant has a reasonable expectation of privacy in a building sufficient to challenge a search under the Fourth Amendment, "we must inquire whether [the] defendant took normal precautions to maintain his privacy—that is, precautions normally taken by those seeking privacy." Id. (quotation marks and citation omitted).
The prosecution argues that Derousse had no reasonable expectation of privacy in the barns because there was not a separate fence around either barn, both barns could be seen from the road, and they were both easily accessible from the road. Such facts, however, are pertinent to whether Derousse had a reasonable expectation of privacy in the exteriors of the barns, not the interiors.
The prosecution also asserts that the barns were not associated with the intimate daily activities of Derousse's home given that Derousse kept animals in the barns and did not live in either barn. Finally, the prosecution claims that the barns were not locked and that Derousse "failed to set up anything that showed that she had a privacy expectation in either barn." In making its argument, however, the prosecution ignores the record. Lutz testified that when he was on the property on November 7, 2019, the west pole barn was "secured" and, because it had no windows, he could not "get [a] visual ID" of the dogs that he could hear barking inside it. When he returned the next day, the barn was locked. Further, although the east pole barn had a partially open door, Lutz did not testify that he could see anything amiss when he peeked through that opening on November 7. Given the record actually before us, the secured nature of the west pole barn reflects that Derousse took normal precautions to maintain her privacy. Moreover, although the door to the east pole barn was partially open when Lutz was first on the property, given that nothing incriminating was observed through the entry, we are not persuaded that Derousse lacked any reasonable expectation of privacy in the interior of the barn. Because Derousse had a reasonable expectation of privacy in the interior of both barns, a warrant was required before Lutz could search either barn.
Our conclusion that Derousse had a legitimate expectation of privacy in the interior of her barns is consistent with cases from our sister states. "Caselaw from sister states and federal courts is not binding precedent but may be relied on for its persuasive value." Haydaw v. Farm Bureau Ins. Co. , 332 Mich.App. 719, 726 n 5, 957 N.W.2d 858 (2020). We find persuasive the Supreme Court of Illinois's opinion in People v. Pitman , 211 Ill.2d 502, 286 Ill.Dec. 36, 813 N.E.2d 93 (2004). In that case, the court held that "[t]he fourth amendment [sic] protects structures other than dwellings, and those structures need not be within the curtilage of the home." Id . at 519, 286 Ill.Dec. 36, 813 N.E.2d 93. The court concluded that the defendant had a legitimate expectation of privacy in the barn given that he "clearly had a possessory interest in the entire farm and had the ability to control or exclude others from the use of the property." Id . at 521, 286 Ill.Dec. 36, 813 N.E.2d 93. The court held that the warrantless search of the barn was unreasonable under the Fourth Amendment unless the search fell within an exception to the warrant requirement. Id. at 523, 286 Ill.Dec. 36, 813 N.E.2d 93. Likewise, in Siebert v. Severino , 256 F.3d 648, 654 (C.A.7, 2001), the United States Court of Appeals for the Seventh Circuit explained that the Supreme Court held in United States v. Dunn , 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), that officers could look through a barn's open doorway, but "did not hold that the police could enter the barn itself." The court held that there was a reasonable expectation of privacy in the barn. Siebert , 256 F.3d at 661. Similarly, the United States Court of Appeals for the Fourth Circuit has held that an officer could make observations by looking through an open loft of a barn, but that an individual has a reasonable expectation of privacy in a barn, and, therefore, an officer could not enter without a warrant. United States v. Wright , 991 F.2d 1182, 1186 (C.A.4, 1993). As the Seventh Circuit stated, "a reasonable state actor" would know that a warrant was needed in order to enter a fenced-in, closed structure near a person's home. Siebert , 256 F.3d at 655. That is what occurred in this case. Lutz did not enter or attempt to seize animals before obtaining a warrant, and his testimony makes clear that he believed the warrant permitted him to enter the barns to search for and seize the animals located therein.
When discussing Dunn , Gillespie, Michigan Criminal Law & Procedure, Search and Seizure (2d ed.), § 2:21, p84, explains:
Significantly, the Court did not hold that structures outside the curtilage may themselves be entered and searched without warrant, the Court accepting "for the sake of argument" that they may not be, but held rather that observations of the contents made without entry are not barred by the Fourth Amendment. The Court's supposition is correct: Though the fields are not within the protection afforded to one's "person, houses, papers and effects," an outbuilding is a protected "house," though not a dwelling house, which falls within the core privacy values protected by the Fourth Amendment. [Citation omitted.]
Moreover, none of the cases cited by the prosecution supports a warrantless search of Derousse's barns. The prosecution first cites People v Spencer , unpublished per curiam opinion of the Court of Appeals, issued May 3, 2012 (Docket No. 304422), and People v. Green , unpublished per curiam opinion of the Court of Appeals, issued April 9, 2015 (Docket Nos. 323433 and 323435), 2015 WL 1600346, for the proposition that a defendant does not have a reasonable expectation of privacy in barns located on his or her property. However, in Spencer , unpub. op. at 5, a panel of this Court held that "the officers were not on the curtilage when they knocked on the door of the pole barn in order to make contact with [the] defendant." The officers in Spencer did not enter the barns until the defendant provided consent. Id. at 2. Likewise, in Green , unpub. op. at 4-5, a panel of this Court held that a pole barn was not within the home's curtilage and that the officers did not conduct a search by approaching the pole barn when attempting to contact the residents of the home. Further, the officers did not enter the pole barn until after obtaining a search warrant. Id. at 2. Accordingly, neither Green nor Spencer supports the prosecution's argument that a warrantless search of the interiors of Derousse's barns was permissible.
Although an unpublished opinion is not binding, this Court may follow the opinion if it finds the reasoning persuasive. MCR 7.215(C)(1) ; Kern v. Kern-Koskela , 320 Mich. App. 212, 241, 905 N.W.2d 453 (2017).
The prosecution further relies on United States v. Mooring , 137 F.3d 595, 596 (C.A.8, 1998), in which the United States Court of Appeals for the Eighth Circuit affirmed the trial court's finding that a barn was not within the curtilage of a home. The Eighth Circuit explained that although the officer's view of the barn was obscured, "this fact in itself does not establish the barn should be included within the farmhouse's Fourth Amendment protection." Id . at 597. But the officers in Mooring did not enter the barn until after they obtained a warrant. Id . at 596. As a result, it is inapposite.
The prosecution further relies on United States v. Long , 674 F.2d 848, 852-853 (C.A.11, 1982), in which the United States Court of Appeals for the Eleventh Circuit held that "there was no legitimate expectation [of privacy] that [the defendant] or anyone else could claim in the contents of [a] barn" because there was no legitimate expectation of privacy in outbuildings unless they were part of the curtilage of a home. However, the court also explained that there was no residence on the property and that "even if we had found that a legitimate expectation of privacy could have existed in the contents of the barn, it is highly doubtful that [the defendant] himself had such an expectation since, at the time of the search, not even his wife[, who had previously owned the property where the search was conducted,] owned the lands on which the barn was situated." Id. at 853 n 6. Moreover, a customs agent in Long climbed a fence in order to look into the door of the barn, but he did not search the barn until he obtained a search warrant. Id. at 851-852. This case is distinguishable from Long because Derousse's home is situated on the property, she took steps to secure it so as to exclude others, and no agent saw inside the barns until after a warrant had been obtained.
Finally, the prosecution relies on Oliver v. United States , 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), to argue that it is "well established that the Fourth Amendment's protection does not extend to areas outside the home's curtilage because no expectation of privacy attaches." Yet, in Oliver , 466 U.S. at 178, 104 S.Ct. 1735, the Supreme Court stated that "an individual may not legitimately demand privacy for activities conducted out of doors in fields , except in the area immediately surrounding the home." (Emphasis added.) The Supreme Court explained that there was no "societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields," which were "accessible to the public and the police in ways that a home, an office, or commercial structure would not be." Id. at 179, 104 S.Ct. 1735. The Supreme Court, therefore, recognized that individuals would have a different privacy expectation in an open field than in an enclosed structure. Likewise, in this case, Derousse had a privacy expectation in her barns that she did not have in her fields.
In sum, the prosecution's argument that Derousse lacked an expectation of privacy in the barns is both factually and legally unsupported. A warrant was required to search the barns, notwithstanding that they were located outside the curtilage of Derousse's home. 2. SCOPE OF THE WARRANT
The prosecution next argues that the search warrant issued authorized the search of the barns. We disagree.
The search warrant issued in this case described the place to be searched in the following way:
1. The person, place or thing to be searched is described as and is located at:
12505 Dearmyer Road, in Columbia Township, it is a one story single-family dwelling. The residence is a single story ranch tan in color with vinyl siding. The residence is occupied with a brown shingled roof. The front door of the residence faces south and the numbers 12505 are on the front of the house. The residence is located in Columbia Township, Jackson County and State of Michigan.
2. The PROPERTY is to be searched due to animals running at large and several dead animals found on the property. Property to be seized is specifically described as:
A total of two silver labs, a chocolate lab, a French Bull Dog and a Tea Cup Chihuahua, 9 cows and 3 sheep. Items related to rabies vaccines administered by animal owner.
The two pole barns on the property are not described, nor are they even referred to in the search warrant. Further, although the affidavit supporting the search warrant refers to a dog kennel being operated out of the west pole barn, the affiant did not describe or mention that pole barn when describing the place that he was seeking a warrant to search. Moreover, given that Lutz observed the animals described in the affidavit while they were in the open and without entering any structures on the property, it is clear that they were not concealed in a barn. Thus, the description of the animals to be seized does not operate to extend the scope of the warrant from the place specifically described. Finally, as agreed to by the parties, the barns are not located within the curtilage of the residence located at 12505 Dearmyer Road.
As explained by this Court in People v. McGhee , 255 Mich.App. 623, 626, 662 N.W.2d 777 (2003) :
The test for determining whether the description in the warrant is sufficient to satisfy the particularity requirement is whether the description is such that the officers with a search warrant can with reasonable effort ascertain and identify the place intended. Steele v. United States , 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925) ; United States v. Gahagan , 865 F.2d 1490, 1496 (C.A.6, 1989). The Fourth Amendment safeguard is designed to require a description that particularly points to a definitely ascertainable place so as to exclude all others. Id. Thus, the test for determining the sufficiency of the description of the place to be searched is (1) whether
the place to be searched is described with sufficient particularity to enable the executing officer to locate and identify the premises with reasonable effort, and (2) whether there is any reasonable probability that another premises might be mistakenly searched. Id. at 1496-1497. The requirement is designed to avoid the risk of the wrong property being searched or seized. [Quotation marks and citation omitted.]
Here, because the search warrant describes with great particularity the residence, but does not refer to the barns located outside the curtilage of the home, we conclude that the warrant does not apply to the barns. Our conclusion is based on our Supreme Court's decision in People v. Bawiec , 228 Mich. 32, 199 N.W. 702 (1924). In that case, the search warrant described the place to be searched as
a two-story frame house unpainted, partly shingled upon the sides, located on the north half of the northeast quarter of section five, * * * in the township of Krakow, in said county and State, and occupied by Joe Bawiec and John Bawiec, as a private dwelling and as a place for the
manufacture, storage, sale, furnishing and giving away of intoxicating liquor. [ Id. at 33, 199 N.W. 702 (quotation marks omitted).]
Rather than search the place described, the police searched "an old log house some 18 or 20 feet away and disconnected from the frame house, but within the curtilage ...." Id. Our Supreme Court held that
while this court has treated as surplusage misdescriptions where the place to be searched has been otherwise described with such definiteness as to leave no discretion in the officer, we have not thus far held that a search warrant made valid by a definite description pointing only to a specific building and directing a search therein justifies a search of another building not described although located in the same vicinity. Nor do we think we should so hold. It is permissible to direct in one warrant the search of the house and outbuildings within the curtilage. [ Id. at 35, 199 N.W. 702 (emphasis added).]
The Court concluded that because only the dwelling-house was definitely described and the outbuilding was not described at all, the search of the outbuilding exceeded the scope of the warrant. Id. at 35-36, 199 N.W. 702. As recognized by this Court in McGhee , 255 Mich.App. at 632, 662 N.W.2d 777, Bawiec has not been overruled or challenged. Therefore, its central holding—that the description of one building does not warrant the search of a building on the same property that is not particularly described—must be applied by this Court. Although the prosecution also relies on People v. Hampton , 237 Mich.App. 143, 149-154, 603 N.W.2d 270 (1999), in which this Court upheld a search when the affidavit and search warrant incorrectly described the home on the fourth page, but correctly described it on the first page, this situation is distinguishable because Lutz's affidavit and the search warrant both accurately described Derousse's residence, but did not describe any other buildings on the property. Likewise, the prosecution's reliance on People v. Jones , 249 Mich.App. 131, 139, 640 N.W.2d 898 (2002), is misplaced. In that case, the police searched a vehicle located within the curtilage of the defendant's home. Id. at 133-134, 640 N.W.2d 898. This Court held that the search warrant "included within its authorization" the search of the vehicle. Id. at 139, 640 N.W.2d 898. However, nothing in that opinion indicated that a vehicle inside the curtilage of the defendant's home should be treated the same as a structure outside the curtilage of the defendant's home.
We note that this Court posited in McGhee that, in light of changes to federal Fourth Amendment jurisprudence, our Supreme Court would likely reject the Bawiec analysis were it to decide the issue again. See McGhee , 255 Mich.App. at 633-634, 662 N.W.2d 777. Yet, this Court is bound to follow decisions by our Supreme Court "except where those decisions have clearly been overruled or superseded ...." Pearce Estate v. Eaton Co. Rd. Comm. , 507 Mich. 183, 195, 968 N.W.2d 323 (2021). Here, as Bawiec has not been clearly overruled or superseded by our Supreme Court, we must follow Bawiec .
The changes noted in McGhee would not necessarily resolve the issue on appeal. In McGhee , this Court noted that various courts have held that the Fourth Amendment is not violated by searches of outbuildings within the curtilage of a residence described in a search warrant. McGhee , 255 Mich.App. at 633-634, 662 N.W.2d 777. However, the barns in this case are located outside the curtilage of Derousse's home.
In sum, the warrant described with particularity only the residence located on the property. It did not authorize—even indirectly—the search of other structures located on the property. As a result, the search of those structures was a warrantless search. 3. GOOD-FAITH EXCEPTION
The prosecution finally argues that even if a warrant was required and the warrant issued did not authorize the search of the barns, the trial court erred by suppressing the evidence because the good-faith exception to the exclusionary rule applies. We disagree.
Relying on federal precedent, our Supreme Court adopted the good-faith exception to the exclusionary rule in People v. Goldston , 470 Mich. 523, 541, 682 N.W.2d 479 (2004). Under the good-faith exception, evidence obtained through a defective search warrant is admissible when the executing officer relied upon the validity of the warrant in objective good faith. Id. at 525-526, 540-541, 682 N.W.2d 479. In adopting the good-faith exception, our Supreme Court noted that the primary purpose of the exclusionary rule is to deter "official misconduct by removing incentives to engage in unreasonable searches and seizures." Id. at 529, 682 N.W.2d 479. The Court reasoned that "suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant" produces " ‘marginal or nonexistent benefits’ " and " ‘cannot justify the substantial costs of exclusion.’ " Id. at 530, 682 N.W.2d 479, quoting United States v. Leon , 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See also People v. Hughes (On Remand) , 339 Mich.App. 99, 112, 981 N.W.2d 182 (2021) (noting that in cases where an "unlawful search" is "not attributable to an error made by a neutral and detached magistrate, the rationale underlying the good-faith exception does not apply").
Exceptions to the good-faith exception exist. Specifically, as explained in United States v. Leon , 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), even if the officers acted in good-faith reliance on a defective search warrant, suppression is still proper in cases when the judge is misled by knowingly false statements, when the judge abandons their judicial role such that "no reasonably well trained officer should rely on the warrant," or when the warrant is so lacking in details and particulars that no officer could reasonably believe it to be valid.
Here, a search warrant was authorized. Although that warrant was not defective, it did not authorize a search of the barns located outside the curtilage of Derousse's residence. As a result, the search of the barns was conducted without a warrant. The good-faith exception has been extended to cases in which a search is conducted without a warrant. See Illinois v. Krull , 480 U.S. 340, 346, 353, 356-357, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (extending the good-faith exception to the exclusionary rule when the police conducted a warrantless search in reliance on a statute that was subsequently declared unconstitutional), and Arizona v. Evans , 514 U.S. 1, 16, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (extending the good-faith exception when a search was made in reliance on clerical errors made by court employees). However, the prosecution has not argued that such an extension is warranted in this case. And, even if it were to do so, the record does not indicate that Lutz conducted his search in objectively reasonable reliance on any statute or clerical error. Instead, he testified that he believed the warrant authorized the search of the barns. As a result, we conclude that the suppression of the evidence seized during the warrantless search of the barns was not barred by the good-faith exception to the exclusionary rule.
Although Lutz's testimony is sufficient to show his subjective good faith, the good-faith exception requires that the officer conducting the search did so while acting in objective, good-faith reliance on a search warrant. On appeal, the prosecution has made only a cursory argument that Lutz was acting in good faith, noting his testimony and citing a single unpublished decision by the United States Court of Appeals for the Sixth Circuit. However, it has offered no analysis as to why, under the specific facts of this case, Lutz's actions were objectively reasonable. "An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment [of an issue] with little or no citation of supporting authority." People v. Kelly , 231 Mich.App. 627, 640-641, 588 N.W.2d 480 (1998). Consequently, even if we were to conclude that it was appropriate to apply the good-faith exception to the warrantless search of the barns, we would nevertheless conclude that the prosecution has abandoned its argument on appeal.
Affirmed.
Swartzle, J., concurred with M. J. Kelly, J.
Boonstra, P.J. (concurring in part and dissenting in part).
I fully concur in Part II(B)(1) of the majority opinion. I agree that defendant, Brigitte Derousse, had a reasonable expectation of privacy in the barns located on her property (even if outside the curtilage of the home) and that a warrant was therefore required to search the barns. I respectfully dissent from Parts II(B)(2) and (3), however, for the reasons that follow.
First, I fully recognize that the parties have stipulated that the barns in question are located outside the curtilage of Derousse's home. So that issue is technically not before us. But I think the reason it is not before us has nothing to do with factual realities, but rather is simply because both the prosecution and Derousse have taken post hoc legal positions designed to further their respective legal arguments. That is, the prosecution wanted to advance the argument—which we are rejecting—that a warrant is not required to search a building outside the curtilage of a home. And Derousse wanted to advance the argument that this particular warrant was deficient because it did not specifically refer to the barns (whereas it arguably may have been sufficient with respect to barns located within the curtilage of her home).
The majority and I therefore agree that a warrant was required to search the barns regardless of whether the barns were located within the curtilage of the Derousse home. However, the curtilage issue may affect whether this particular warrant was sufficient to allow for the search of the barns. Therefore, I believe that a proper method of analysis—devoid of stipulations arising from legal maneuvering—would be to evaluate whether, as a factual matter, these barns were located with the curtilage of the Derousse home. The constitutional protection of the Fourth Amendment extends to the curtilage of a home. See Florida v. Jardines , 569 U.S. 1, 6-7, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). Four factors should be considered in determining whether an area lies within the curtilage of a home, including: (1) the proximity of the area to the home, (2) whether the area is included in an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation. United States v. Dunn , 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987).
As the majority notes, this Court held in People v. McGhee , 255 Mich.App. 623, 626, 662 N.W.2d 777 (2003) :
The test for determining whether the description in the warrant is sufficient to satisfy the particularity requirement is whether the description is such that the officers with a search warrant can with reasonable effort ascertain and identify the place intended. Steele v. United States , 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925) ; United States v. Gahagan , 865 F.2d 1490, 1496 (C.A.6, 1989). The Fourth Amendment safeguard is designed to require a description that particularly points to a definitely ascertainable place so as to exclude all others. Id.
Thus, the test for determining the sufficiency of the description of the place to be searched is (1) whether the place to be searched is described with sufficient particularity to enable the executing officer to locate and identify the premises with reasonable effort, and (2) whether there is any reasonable probability that another premises might be mistakenly searched. Id. at 1496-1497. The requirement is designed to avoid the risk of the wrong property being searched or seized. [Quotation marks and citation omitted.]
And while the majority understandably feels compelled to apply our Supreme Court's dated-but-never-overturned decision in People v. Bawiec , 228 Mich. 32, 199 N.W. 702 (1924) (holding that a search warrant for a specified residence was insufficient to authorize the search of a separate log home located within the curtilage), this Court in McGhee recognized that our Supreme Court likely would decide the issue differently today, given developments in Fourth Amendment law over the last 80 (now nearly 100) years. This Court stated:
[T]the Michigan Supreme Court has held that Const. 1963, " art. 1, § 11, is to be construed to provide the same protection as that secured by the Fourth Amendment, absent ‘compelling reason’ to impose a different interpretation." People v. Collins, 438 Mich. 8, 25, 475 N.W.2d 684 (1991). United States Courts of Appeals and state courts addressing the propriety of searches of outbuildings in the seventy-eight years since Bawiec was decided have held that the Fourth Amendment is not violated by a search of the grounds or outbuildings within a residence's curtilage where a warrant authorizes a search of the residence. It is thus to be anticipated that the Michigan Supreme Court would adopt a similar analysis, and, rather than follow Bawiec, declare that the protection provided by Const. 1963, art. 1, § 11 does not render the instant searches unconstitutional. See Collins, [438 Mich.] at 11[ 475 N.W.2d 684], where the Court engaged in a similar analysis, leading it to overrule
People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975). [ McGhee , 255 Mich.App. at 633-634, 662 N.W.2d 777.]
Whether the barns are within the curtilage of Derousse's home is therefore an important factor in assessing whether the warrant at issue in this case was sufficient to allow for the search of the barns. Indeed, the majority recognizes as much, acknowledging that the changes in Fourth Amendment jurisprudence noted in McGhee would not necessarily resolve the issue on appeal in this case because the parties stipulated that the barns are located outside the curtilage of Derousse's home.
This leads me to a careful inspection of the actual warrant in this case—as well as of the factual realities of the resulting search. The warrant states:
1. The person, place or thing to be searched is described as and is located at:
12505 Dearmyer Road, in Columbia Township, it is a one story single-family dwelling. The residence is a single story ranch tan in color with vinyl siding. The residence is occupied with a brown shingled roof. The front door of the residence faces south and the numbers 12505 are on the front of the house. The residence is located in Columbia Township, Jackson County and State of Michigan.
2. The PROPERTY is to be searched due to animals running at large and several dead animals found on the property. Property to be seized is specifically described as:
A total of two silver labs, a chocolate lab, a French Bull Dog and a Tea Cup Chihuahua, 9 cows and 3 sheep. Items related to rabies vaccines administered by animal owner.
Indisputably, the warrant was not a model of clarity and its ambiguity is not what is desired in a warrant. It provided the property address (which arguably could include the residence, the barns, and open spaces), but also described it as a "one story single-family dwelling." It did not specify the barns as areas to be searched. However, the warrant also—and arguably more broadly—referred to "The PROPERTY [that] is to be searched" and gave as a basis for the search "animals running at large and several dead animals found on the property. " (Emphasis added). The dead animals had not been found inside the residence, however, and the animals running at large also were not doing so in the residence. In this respect, the warrant's language suggests that the drafter intended for the search to be of an area broader than simply the residence. And many of the animals specified for seizure were of a type—cows and sheep—that would not typically be expected to be found within a residence, but instead would be expected to be found either in open spaces or inside the barns. The affidavit also mentioned—as a basis for the warrant—that a dog kennel was being operated out of one of the barns.
I am left to conclude that the warrant, while ambiguous, may have been sufficient to allow for a search of the barns in this factual circumstance, or at least may have given rise to a good-faith belief that the barns were included within the area that could permissibly be searched. As the majority notes, our Supreme Court, in People v. Goldston , 470 Mich. 523, 541, 682 N.W.2d 479 (2004), adopted a good-faith exception to the exclusionary rule. Noting that the exclusionary rule is designed to deter "official misconduct by removing incentives to engage in unreasonable searches and seizures," id. at 529, 682 N.W.2d 479, the Court held that "suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant" produces " ‘marginal or nonexistent benefits’ " and " ‘cannot justify the substantial costs of exclusion.’ " Id. at 530, 682 N.W.2d 479, quoting United States v Leon , 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed. 2d 677 (1984). See also People v. Hughes (On Remand ), 339 Mich.App. 99, 112, 981 N.W.2d 182 (2021) (noting that in cases where an "unlawful search" is "not attributable to an error made by a neutral and detached magistrate, the rationale underlying the good-faith exception does not apply").
Under these circumstances, in which the warrant ambiguously described the property to be searched and in which the reasons for the search related in part to the mistreatment of farm animals that would not be expected to be found within a residence, I would remand this matter for further proceedings regarding the scope of the warrant and the applicability of the good-faith exception to the warrant requirement—including whether suppressing the evidence serves the purposes of the exclusionary rule in this instance.