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People v. Katzman

Court of Appeals of Michigan

October 3, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
MARK STANFORD KATZMAN, Defendant-Appellant.

          No. 345173 Oakland Circuit Court LC No. 2017-263755-FH

          Before: Jansen, P.J., and Cameron and Tukel, JJ.

          JANSEN, P.J.

         Defendant, 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. We affirm.

         I. RELEVANT FACTUAL BACKGROUND

         This 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 of cocaine.

         Defendant 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.

         II. MOTION TO SUPPRESS STATEMENTS

         Defendant's 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.

         We 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 would fail.

         A. STANDING

         The 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).]

         The United States and Michigan Constitutions are coextensive in this regard. People v Slaughter, 489 Mich. 302, 311; 803 N.W.2d 171 (2011).

         To invoke the Fourth Amendment's protections, a defendant bears the burden of establishing that he has standing[1] 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).[2] 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 ...


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