Opinion
365641
05-11-2023
People of Michigan v. Nicolas Gamez
LC No. 22-005129-01-FH
Anica Letica Presiding Judge, Kirsten Frank Kelly, Thomas C. Cameron Judges
ORDER
The application for leave to appeal is DENIED for lack of merit in the grounds presented. Even assuming that the disputed "consent form" constituted hearsay, it was properly admitted for purposes of determining whether the police had been granted consent to search the subject premises. See MRE 1101(b)(8); People v Taylor, 67 Mich.App. 76, 81; 240 N.W.2d 273 (1976), citing United States v Matlock, 415 U.S. 164, 175; 94 S.Ct. 988; 39 L.Ed.2d 242 (1974). Moreover, because defendant admits that he is seeking to challenge a search of the subject premises that occurred "after 'the scene was already cleared' "-i.e., after he had already been arrested and removed from the building-the homeowner's consent to search was valid as against defendant. See Matlock, 415 U.S. at 170 ("the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared"). Finally, regardless of whether a valid exception to the warrant requirement was proven here, because defendant has failed to cite any evidence establishing that he actually resided at the subject premises or had a reasonable expectation of privacy in the areas searched, he has failed to carry his burden of demonstrating standing to challenge the disputed search. See People v Powell, 235 Mich.App. 557, 561; 599 N.W.2d 499 (1999) (observing that "[t]he defendant has the burden of establishing standing" to challenge a search and that, to have standing, the defendant must have "a reasonable expectation of privacy in the place that was searched"). Accord People v Mahdi, 317 Mich.App. 446, 459; 894 N.W.2d 732 (2016); Rawlings v Kentucky, 448 U.S. 98, 104; 100 S.Ct. 2556; 65 L.Ed.2d 633 (1980).