MI: REP in def’s barns despite being a distance from home

Defendant had a reasonable expectation of privacy in two barns on his farm, one locked and one unlocked with the door partially open. Curtilage to the home doesn’t matter. A later search warrant only described the home and not the barns. The good faith exception does not apply. People v. DeRousse, 2022 Mich. App. LEXIS 2521 (May 5, 2022):

Our conclusion that DeRousse had a legitimate expectation of privacy in the interior of her barns is consistent with cases from our sister states. “Caselaw from sister states and federal courts is not binding precedent but may be relied on for its persuasive value.” Haydaw v Farm Bureau Ins Co, 332 Mich App 719, 727 n 5; 957 NW2d 858 (2020). We find persuasive the Supreme Court of Illinois’s opinion in People v Pitman, 211 Ill. 2d 502, 518-519; 813 N.E.2d 93, 286 Ill. Dec. 36 (2004). In that case, the court held that “[t]he fourth amendment protects structures other than dwellings, and those structures need not be within the curtilage of the home.” The court concluded that the defendant in Pitman, 211 Ill 2d at 521, had a legitimate expectation of privacy in the barn when “defendant clearly had a possessory interest in the entire farm and had the ability to control or exclude others from the use of the property.” The court held that the warrantless search of the barn was unreasonable under the Fourth Amendment unless the search fell within an exception to the warrant requirement. Id. at 523. Likewise, in Siebert v Severino, 256 F3d 648, 654 (CA 7, 2001), the United States Court of Appeals for the Seventh Circuit explained that the Supreme Court held in United States v Dunn, 480 US 294, 300; 107 S Ct 1134; 94 L Ed 2d 326 (1987),4Link to the text of the note that officers could look through a barn’s open doorway, but “did not hold that the police could enter the barn itself.” The court held that there was a reasonable expectation of privacy in the barn. Siebert, 256 F3d at 661. Similarly, the United States Court of Appeals for the Fourth Circuit has held that an officer could make observations by looking through an open loft of a barn, but that an individual has a reasonable expectation of privacy in a barn, and, therefore, an officer could not enter without a warrant. United States v Wright, 991 F2d 1182 (CA 4, 1993). As the Seventh Circuit stated, “a reasonable state actor” would know that he needed a warrant in order to enter a fenced-in, closed structure near a person’s home. Siebert, 256 F3d at 655. That is what occurred in this case. Lutz did not enter or attempt to seize animals before obtaining a warrant, and his testimony makes clear that he believed the warrant permitted him to enter the barns to search for and seize the animals located therein.

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