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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appell ee , UNPUBLISHED September 18, 2018

v No. 338965

Kent Circuit Court

ROSEVELDT JARON BETTS

, LC No. 16

- 005582

- FH

Defendant

- Appell ant

.

Before: M URRAY

, C .J., and C AMERON and L ETICA , JJ.

P ER C URIAM

.

Defendant appeals his convictions and sentences for felon in possession of a firearm, MCL 750.224f, felon in possession of ammunition, MCL 750.224f(6), and possession of a firearm during the commission of a felony (felony

- firearm), MCL 750.227b

. D efendant was sentenced as a fourth

- habitual offender, MCL 769.12, to 3 to 30 years’ imprisonment for both

felon

- in

- possession convictions , to be served consecutive to a term of two years’ impris onment for felony

- firearm

. On appeal, defendant claims the circuit court erred when it denied his pre

trial motion to suppress evidence of the firearm and ammunition . We disagree and therefore

affirm.

I. BACKGROUND

This case arises out of the discovery of a firearm and ammunition found in the ho use of defendant’s girlfriend

. On May 5, 2016, the police were called to the girlfriend ’s house due to an altercation between defendant and his girlfriend

. The p olice dispatch record indicates that th e caller, who was the girlfriend ’s daughter

, reported that her mother w as being assaulted by

defendant and that he was “yelling something about a gun .”

At approximately 1:30 a.m., defendant entered the girlfriend ’s house

. Then, a round 1:42 a.m., the Grand Rapids Police were dispatched to the hous e. After the police knocked on the door for “several minutes,” a female voice on the other side of the door eventually said “I’m okay” but then refused to open the door. Sergeant Charles Ware, as the officer

- in

- charge,

directed the other officers to kick down the door because he believed that the situation was sufficiently urgent since a child, her m o ther, and a gun were involved. Defendant was immediately handcu ffed and placed in a police car.

Once defendant was removed from the premises, the police entered the hous e and immediately began search ing for other suspects or victims without the girlfriend ’s consent.- 2

- During this search, Ware spotted a white and black jacket in the basement that appeared to

bel ong to defendant given its size. Ware decided to take the white and black jacket to defendant, but in doing so, Ware noticed a heavy object inside the jacket pocket. The object turned out to be a “speed loader with sev eral bullets in the speed loader

. ” D efendant’s Michigan Temporary

Personal Ide ntification Card was also found in the jacket

. Ware did not immediately seize the

ammunition . A fter finding the speed loader and bullets, Ware communic ated his finding to defendant, but he denied that the white and black jacke t belonged to him

.

While the house was being searche d for possible victims and suspects , Officer Patrick

Loeb talked to the girlfriend

. Loeb testified that, at some point after the ammunition was f ound,

he obtained the girlfriend ’s consent “to search the home further for the firearm.” Loeb also

testified that he asked for her consent to search for a gun because, although the girlfriend suggested that there was no firearm in the house, Loeb “ didn’t really believe that there was no gun involved because a 15

- year

- old wouldn’t be making up hearing something about a gun. ”

Once consent wa s given, Loeb went downstairs and seize d defendan t’s white and black jacket along with the ammunition and identificati on card

.

Moreover, after Loeb obtained the girlfriend ’s co nsent, Officer Michael Reed conducted

a n additional search for a firearm. He found a firearm upstairs inside an orange jacket hanging in

t he girlfriend ’s bedroom closet. The girlfriend testified that she owned the orange jacket, but she denied having any knowledge of t he handgun inside its poc kets. At trial, t he prosecution

connect ed the firearm to defendant by way of DNA evidence.

At the preliminary examination, Ware, R eed, Loeb, a nd the girlfriend testified

. Defendant opposed bind over on his charges claiming the firearm and ammunition should be suppressed because they were unlawfully seized

. T wo issues were ultimately raised at the preliminary examination: defendant’s s tanding to challenge the search

, and the lawfulness of the

sear ch and seizure

. Upon considering these issues, t he district court denied the oral request to suppress the evid ence and granted the bind over.

On November 16, 2016, defendant filed a motion to suppress the evidence of the firearm found in the orange jacket and the ammunition found in the white and black jacket w ith the

circuit court . The parties agreed that the motion to suppress would be decided on the record of the preliminary examination

. At the suppression hearing

, the circuit court held that it “did not find any testimony or evidence presented that [defendant] lived at [ the girlfriend ’s] address.” As a result, the circuit court held that defendant did not have standing to challe nge the search of the girlfriend ’s hous e. The circuit court also held that the firea rm and ammunition were lawfully

seized

.

Defendant now argues he has standing to challenge the search as an overnight guest in

the girlfriend ’s hous e . Even if defendant does not have standing to challenge the search of the girlfriend ’s hous e, he argues that he still has standing to challenge the search of his white and black jacket

. D efendant further asserts that the search es and seizures w ere unlawf ul.- 3

- II. STANDARD OF REV IEW

Application of the Fourth Amendment of the United States Constitution and article 1, § 11 of the Michigan Constitution is reviewed de novo. People v Slaughter , 489 Mich 302, 310; 803 NW2d 171 (2011). Appellate “review of a circuit court’s review of a dis trict court’s order is

also de novo.” Noll v Ritzer , 317 Mich App 506, 510; 895 NW2d 192 (2016). Findings of fact in deciding a motion to suppress are reviewed for clear error, thereby according deference to the

circuit court’s resolution of credibility issues caused by conflicting testimony. People v Burrell

, 417 M ich 439, 448; 339 NW2d 403 (1983). Appellate review requires the examination of

“information known to the court at the time it denied defendants’ motions to suppress the

evidence.” Id

. at 449. A finding of fact is clearly erroneous “if the reviewing court is left with a

definite and firm conviction that a mistake has been made.” People v Johnson , 466 Mich 491,

497

- 498; 647 NW2d 480 (2002).

III. ANALYSIS

“ The Fourth Amendment of the United States Constitution and the parallel provision in the Michigan Constitution guarantee the right of people to be secure in their . . . houses . . . and effects against unreasonable searches and seizures.” People v Armenda rez , 188 Mich App 61, 66; 468 NW2d 893 (1991); see US Const, Am IV, and Const 1963, art 1, § 11. The Michigan Constitution “provide[s] the same protection as that secured by the Fourth Amendment, absent ‘compelling reason’ to impose a different interpreta tion.” Slaughter , 489 Mich at 311

, quoting People v Collins , 438 Mich 8, 25; 475 NW2d 684 (1991). Evidence seized in violation of the United States and Michigan Constitutions must be excluded from trial. People v Woodard , 321 Mich App 377, 383; 909 NW2d 299 (2017).

A. STANDING

Defendant first argues that he was an overnight guest, and therefore, has standing to challenge the search of the girlfriend ’s hous e. We disagree.

A person who bring s a constitutional challenge has the burden of proving they ha ve standing to do so

. People v Brown , 279 Mich App 116, 130; 755 NW2d 664 (2008) (citation omitted). A person meets t hat burden if, upon a consideration of the totality of the circumstances, they have a “legitimate expectation of privacy in the place or location searched, which expectation society recognizes as reasonable.” Id

. , quoting People v Powell

, 235 Mich App 557 , 560; 599 NW 2d 499 (1999). While an overnight guest has a legitimate expectation of privacy, a person who is “merely present with the consent of the householder ” does not.

Minnesota v Carter , 525 US 83, 90; 119 S Ct 469 ; 142 L Ed 2d 373 (1998).

This C ourt has held that a temporary visitor to a home does not have a reasonable expectation of privacy there. People v Parker

, 230 Mich App 337 , 340

- 341 ; 584 NW2d 336 (1998). In Parker , the police traced a suspect to an apartment rented by two other people a nd found him asleep in bed with one of the lessees. Id

. at 339. Later the same day, the police searched the apartment and seized evidence relating to the suspect’s crime. Id

. The suspect’s codefendant testified that he and the suspect only intended to ask one of the lessees to borrow a car and did not plan to stay and sleep there. Id . at 340

- 341. On these facts, this Court concluded that the suspect was a mere visitor and w as not an overnight guest. Id

. at 340.- 4

- In this case, similar to Parker , defendant cannot prove that he was an overnight guest who has standing to challenge the search of the house. At the suppression hearing, defendant argued that he had standing becaus e he was in the house “well after midnight.” However, t he preliminar y examination record does not indicate when defendant ent ered the house nor does it

show that he had permission to be there

. Defendant is not an overnight guest simply because he

was in the girlfriend’s house after midnight.

Defendant further argues that he has standing as an overnight guest because the witness testified that they “went to bed together.” Because the girlfriend was the only witness at the preliminary examination to testi fy about the events inside her house before police arrived , it was her testimony that could determine whether defendant was an overnight guest. The girlfriend initially testified that defendant was in her house, but suggested he was not in her room. She then changed her testimony and claimed that she and defendant “ went to bed together.” As the

district court found , and the circuit court affirmed, the girlfriend ’s testimony was contradictory and lacked credibility. As previously noted, th is C ourt cannot disturb the circuit court’s finding of fact regarding the girlfriend ’s lack of credibility unless it is clearly erroneous. Burrell , 417

Mich at 448

. W e do not detect any error in the circuit court’s credibility findings. Therefore,

defendant cannot pro ve that he had standing as an overnight guest.

Although the circuit court at the suppression hearing was limited to the evidence presented at the preliminary examination, we also acknowledge that there was evidence presented at the trial confirm ing defendant was not an overnight guest. Both the girlfriend and her daughter testifie d that defendant entered the hous e without permission around 1:30 a.m

. Shortly thereafter, the p olice were dispatched to the girlfriend ’s hous e

. At most , defendant was a

visitor and does not have standing to challenge the search of the girlfriend ’s hous e and the

seizure of the firearm and ammunition

.

Defendant also argues he has standing to challenge the search to his white and black jacket that held the speed loader and bullets. We dis agree.

A coat is a personal effect that is protected under the Fourth Amendment of the United

States Constitution and Section 11 of Article 1 of Michigan’s 1963 Constitution

. Armendarez

, 188 Mich App at 71. “This initial standing inquir y depends upon whether the defendant has a reasonable expectation of privacy in the particular goods at issue.” People v Mamon , 435 Mich 1, 6; 457 NW2d 623 (1990). The defendant has the burden of establishing that he has standing to bring a constitutiona l challenge, Brown , 279 Mich App at 130 (citation omitted), and the court must make its determination after examining the totality of the circumstances, People v Mahdi

, 317 Mich App 446, 458

- 460 ; 894 NW2d 732 (2016). “A person can deprive himself of standing by abandoning the object of the search or seizure.” People v Zahn , 234 Mich App 438, 448; 594 NW2d 120 (1999). “ Abandonment is an ultimate fact or conclusion based generally upon a

combina tion of act and intent ” to relinquish proprietorship. People v Shabaz , 424 Mich 42, 65

- 66; 378 NW2d 451 (1985)

, quoting Freidman v United States , 347 F2d 697, 704 (CA 8 , 1965).

In this case, defendant arguably abandoned his white and black jacket when he told officers that the jacket was not his

. See People v Rice , 192 Mich App 512, 516

- 517; 482 NW2d 192 (1992) (holding that the defendant abandoned his luggage containing marijuana when he- 5

- “denied ownership of the[] bags”). Assuming he did have standing t o challenge the search of his jacket, his claim still fails.

B. SEARCH AND SEIZU RE

W arrantless searches and seizures are presumptively unreasonable unless they are shown

to fall under one of the exception s to the warrant requirement

. People v Lemons , 299 Mich App

541 , 545; 830 NW2d 794 (2013). These exceptions include exigent circumstances, emergency aid, and consent

. People v Davis , 442 Mich 1, 10 , 12

- 20 ; 497 NW2d 910 (1993)

. Generally, it is required that illegally seized evidence be excluded from tr ial. Brown , 279 Mich App at 127. However, the inevitable discovery doctrine “permits the admission of evidence obtained in violation of the Fourth Amendment if it can be shown by a preponderance of the evidence that the items found would have ultimately been obtained in a constitutionally accepted manner.” People v Hyde , 285 Mich App 428; 775 NW2d 833 (2009).

Although d efendant admits that the police had a right to enter his girlfriend ’s hous e under the exigent circumstances and emergency aid exceptions “to find out what was going on,” he

argues that the police exceeded the scope of their search on the basis of the incident to arrest exception. However, the p rosecutor does not rely on the incident to arrest exception and instead argues: (1) th e initial search for victims and suspects conducted without the girlfriend ’s consent that resulted in the discovery of the ammunition were valid under t he exigent circumstances and emergency aid exceptions; (2) the subsequent search and seizure of the fire arm and ammunition was valid under the consent exception; and (3) even if th e searches conducted prior to the girlfriend ’s consent were unlawful, evidence of the firearm and ammunition are still admissible under the inevitable discovery rule. Because disc overy of the evidence would have been inevitable, we need not reach the prosecution’s remaining arguments.

Th e inevitable discovery rule allows the admission of evidence obtained in violation of the constitution so long as “the prosecution establishe[s] by a preponderance of the evidence that

the information

. . . inevitably would have been discovered by lawful means .” People v

Brzezinski , 243 Mich App 431, 435; 622 NW2d 528 (2000). Three factors must be considered in applying this rule: (1) whether “ the legal means [were] truly independent ;” (2) whether “ both the use of the legal means and the discovery by that means [were] truly inevitable ;” and (3) whether

“ the application of the inevitable discovery exception either provide an incentive for police

misc onduct or significantly weaken fourth amendment protection .” Id

. at 436 (citation omitted).

In this case, it was inevitable that the police would have found the ammunition by lawful means. Police were dispatched to the girlfriend’s home after her daughter called 911 to report that defendant was in the house and he was threatening her with a gun. Thus, Loeb reasonably believed that there was a firearm in the girlfriend’s house, and it was highly likely he would have sought permission to search the house regardless of Ware finding the ammunition. It is inevitable, then, that the officers would have found the ammunition in the white and black jacket. In sum, even if the search and s eizure of the ammunition was unlawful because there was no- 6

- applicabl e exception to the warrant requirement, the evidence is admissible under the inevitable discovery rule

. 1

Affirmed.

/s/ Christopher M. Murray

/s/ Thomas C. Cameron

/s/ Anica Letica

1 Defendant argues that the girlfriend’s consent w as tainted by the prior illegality of Ware’s search, and therefore, all evidence from the search based on the girlfriend’s consent should be suppressed. This argument fails. Defendant has provided no bindi ng authority for this argument. Relying on secondary authority, defendant contends that it should be impermissible for police to obtain consent after finding incriminating evidence through an illegal search. T his argument is unavailing because the inevitable discovery rule applies to the facts of this case.