If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
May 5, 2022
Plaintiff-Appellant,
v No. 358358
Jackson Circuit Court
BRIGITTE LOUISE DEROUSSE, LC No. 19-004435-FH
Defendant-Appellee.
Before: BOONSTRA, P.J., and M. J. KELLY and SWARTZLE, JJ.
BOONSTRA, P.J. (concurring 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 Part 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 specify 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 US 1, 6-7; 133 S Ct
1409; 185 L Ed 2d 495 (2013). Four factors should be considered in determining whether an area
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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 natures 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 US 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
NW2d 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 US 498, 503; 45 S Ct 414; 69 L Ed 757
(1925); United States v Gahagan, 865 F2d 1490, 1496 (CA 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-
butnever-overturned decision in People v Bawiec, 228 Mich 32; 199 NW2d 702 (1924) (holding
that a search warrant for a specified residence was insufficient to authorize the search of a
separate log home located with 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 eighty (now nearly one hundred) 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, supra 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 (footnote omitted).]
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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,
because parties in this case had 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 relates 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 there was a dog kennel
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, 529; 682 NW2d 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, the Court held that “suppressing evidence obtained in objectively
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reasonable reliance on a subsequently invalidated warrant” produces “marginal or nonexistent
benefits” and “cannot justify the substantial costs of exclusion.” Id. at 530, quoting United States
v Leon, 468 US 897, 922; 104 S Ct 3405, 3420; 82 L Ed 2d 677 (1984). See also People v Hughes
(On Remand), ___ Mich App ___, ___; ___ NW2d ___ (Docket No. 338030); slip op at 7 (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.
/s/ Mark T. Boonstra
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