Order Michigan Supreme Court
Lansing, Michigan
May 2, 2007 Clifford W. Taylor,
Chief Justice
132967 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellant, Stephen J. Markman,
Justices
v SC: 132967
COA: 266153
Wayne CC: 05-007353-01
DARRIN ANDREW HENRY,
Defendant-Appellee.
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On order of the Court, the application for leave to appeal the December 19, 2006,
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals,
REINSTATE the charges against defendant, and REMAND this case to the Wayne
Circuit Court for further proceedings.
The court plainly erred in holding that defendant did not abandon the bag he was
carrying for purposes of the Fourth Amendment. Fourth Amendment abandonment is
distinguishable from abandonment in the property law context:
The test for abandonment in the search and seizure context is distinct
from the property law notion of abandonment: it is possible for a person to
retain a property interest in an item, but nonetheless to relinquish his or
her reasonable expectation of privacy in the object. See, e.g., United States
v Colbert, 474 F2d 174, 176 (CA 5, 1973). [People v Mamon, 435 Mich 1,
6-7; 457 NW2d 623 (1990) (emphasis added), quoting United States v
Thomas, 864 F2d 843, 845-846 (CA DC, 1989).]
Thus, while abandonment in the property law context looks to whether the person
relinquished his ownership interest in the property, abandonment under the Fourth
Amendment inquires whether “the person prejudiced by the search had voluntarily
discarded, left behind, or otherwise relinquished his interest in the property in question so
that he could no longer retain a reasonable expectation of privacy [in it].” Colbert, supra
at 176.
2
In this case, defendant placed a bag containing illegally copied recordings on an
electric box attached to a utility pole when he saw an unmarked police car approaching
him. In doing so, defendant left the bag in a public place where any passerby could have
access to it. Defendant thus voluntarily “left behind or otherwise relinquished his
interest” in the bag. He had no reasonable expectation of privacy in the bag once he
abandoned it by the pole. Colbert, supra at 176. Moreover, he did not object or assert
his ownership when the police officer walked over to the bag and looked inside.
Defendant’s silence reflects his intent to distance himself from any connection with the
bag when he set it down.
The Court of Appeals also erred in holding that the prosecution must establish that
defendant “unquestionably relinquished any expectation of privacy in the bag.” (Slip op
at 2, emphasis added.) Although this Court noted in Mamon, supra at 7, that “the
defendant unquestionably relinquished any expectation of privacy in the bag [he had been
carrying],” it did not hold that a standard of proof beyond all doubt was necessary to
show abandonment.
Accordingly, we reverse the judgment of the Court of Appeals, reinstate the
charges against defendant, and remand to the trial court for further proceedings consistent
with this order.
We do not retain jurisdiction.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 2, 2007 _________________________________________
t0425 Clerk