345173 Oakland Circuit Court LC No. 2017-263755-FH
Before: Jansen, P.J., and Cameron and Tukel, JJ.
Mark Stanford Katzman, appeals as of right his June 7, 2018,
bench trial convictions of two counts of delivery of less
than 50 grams of cocaine, MCL 333.7401(2)(a)(iv).
Defendant was sentenced on July 24, 2018, to three days'
imprisonment and one year of probation for each conviction.
RELEVANT FACTUAL BACKGROUND
case arises from an undercover drug trafficking investigation
conducted by Farmington Hills Police Sergeant Eric Buckberry.
Through a confidential informant, Sergeant Buckberry and
other police officers were introduced to Jessica Engisch. On
multiple occasions, the officers purchased fentanyl and
cocaine from Engisch. During these transactions, Engisch told
the officers that she could get drugs such as cocaine,
marijuana, and heroin from defendant. Ultimately, the police
officers executed a search warrant on Engisch's motel
room. The officers found cocaine, and seized Engisch's
cell phone pursuant to the search warrant. The following day
Sergeant Buckberry responded to a text message from
defendant, as if he were Engisch, telling defendant that he
could come to Engisch's motel room. When defendant
arrived at Engisch's motel room, the police officers
questioned him about his possible participation in a drug
trafficking incident. Defendant admitted that he was at the
motel to pick up his money from a cocaine sale the night
before, as well as from another sale a few weeks before.
Defendant was arrested, transported to Oakland County Jail,
and charged with two counts of delivery of less than 50 grams
filed a motion with the trial court to suppress his
statements made to police admitting that he sold cocaine to
Engisch. Defendant argued that the statements should be
suppressed because they were illegally obtained in violation
of the U.S. Const, Ams, IV, V, and XIV and Const 1963, art 1,
§§ 11, 17. Defendant contended that although the
search warrant allowed the police officers to search
Engisch's cell phone, it did not allow them to use it to
send a "fraudulent message" to defendant. Defendant
further asserted that he had a reasonable expectation of
privacy in the text message exchange with Engisch, and the
police trespassed on his personal effects by causing the text
message to appear on his cell phone. The trial court denied
defendant's motion to suppress, and this appeal followed.
MOTION TO SUPPRESS STATEMENTS
argument on appeal relates to the trial court's denial of
his motion to suppress his statements to police admitting
that he sold cocaine. Defendant argues that the trial court
incorrectly denied his motion to suppress evidence because
the search warrant only allowed the police officers to search
the cell phone, not use it. We disagree. This Court reviews a
trial court's ruling at a suppression hearing de novo.
People v Daoud, 462 Mich. 621, 629; 614 N.W.2d 152
(2000). This Court reviews the trial court's findings of
fact for clear error. Id.
consider the standing question first because it is presents
the threshold issue of whether defendant can even assert a
violation of the Fourth Amendment. We hold that defendant
lacks standing to invoke protection from an unreasonable
search or seizure as to Engisch's cell phone under U.S.
Const, Am IV and Const 1963, art 1, § 11, and that the
trial court therefore did not err when it determined that law
enforcement's search and use of Engisch's cell phone
was proper. We also find hold that even if defendant had
standing, his claimed Fourth Amendment violation nevertheless
United States and Michigan Constitutions protect against
unreasonable searches and seizures. U.S. Const, Am IV; Const
1963, art 1, § 11. The Fourth Amendment of the United
States Constitution provides, "The right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly
describing the place to be searched and the persons or things
to be seized." The corresponding provision of the
Michigan Constitution provides, in part, "The person,
houses, papers and possessions of every person shall be
secure from unreasonable searches and seizures." Const
1963, art 1, § 11. [People v Mahdi, 317
Mich.App. 446, 457; 894 N.W.2d 732 (2016).]
United States and Michigan Constitutions are coextensive in
this regard. People v Slaughter, 489 Mich. 302, 311;
803 N.W.2d 171 (2011).
invoke the Fourth Amendment's protections, a defendant
bears the burden of establishing that he has
standing to do so. Mahdi, 317 Mich.App. at
459. An individual "may challenge an alleged Fourth
Amendment violation if she can show under the totality of the
circumstances that she had a legitimate expectation of
privacy in the area searched and that her expectation of
privacy was one that society is prepared to recognize as
reasonable." People v Mead, 503 Mich. 205, 213;
931 N.W.2d 557');">931 N.W.2d 557 (2019), citing People v Smith, 420
Mich. 1, 28, 306 N.W.2d 841 (1984). In this case, the only area
searched was Engisch's cell phone, which was done through
execution of a lawful search warrant. Defendant certainly had
a legitimate expectation of privacy in the contents of his
own cell phone, see Rakas 439 U.S. at 144 n 12
("[O]ne who owns or lawfully possesses or controls
property will in all likelihood have a legitimate expectation
of privacy by virtue of [the] right to exclude."). And
courts have recognized that a cell phone is an
"effect" for Fourth Amendment purposes. See
United States v Gardner, 887 F.3d 780, 784 (CA 6,
2018) (recognizing a cell phone as an "effect"
protected by the Fourth Amendment); cf. United States v
Wurie, 728 F.3d 1, 14 ...