               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
                                                                     October 3, 2019
                 Plaintiff-Appellee,                                 9:00 a.m.

v                                                                    No. 345173
                                                                     Oakland Circuit Court
MARK STANFORD KATZMAN,                                               LC No. 2017-263755-FH

                 Defendant-Appellant.


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.




                                                 -1-
       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 US 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
NW2d 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 US 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. US 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 NW2d 732 (2016).]

The United States and Michigan Constitutions are coextensive in this regard.             People v
Slaughter, 489 Mich 302, 311; 803 NW2d 171 (2011).




                                                -2-
        To invoke the Fourth Amendment’s protections, a defendant bears the burden of
establishing that he has standing1 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 NW2d 557 (2019), citing People v Smith, 420 Mich 1, 28, 306
NW2d 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 US 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 F3d 780, 784 (CA 6, 2018) (recognizing a cell phone as an “effect” protected by
the Fourth Amendment); cf. United States v Wurie, 728 F3d 1, 14 (CA 1, 2013), aff’d sub nom
Riley v California, 573 US 373; 134 S Ct 2473; 189 L Ed 2d 430 (2014) (noting that “[t]oday,


1
  The United States Supreme Court in Rakas v Illinois, 439 US 128, 140; 99 S Ct 421; 58 L Ed
2d 387 (1978), “dispens[ed] with the rubric of standing” in the Fourth Amendment context and
stated that “the analysis belongs more properly under the heading of substantive Fourth
Amendment doctrine than under the heading of standing.” However, use of the term “standing”
still persists in search and seizure contexts. People v Mead, 503 Mich 205, 213 n 2; 931 NW2d
557 (2019). Essentially, rather than framing it as a standing issue, the question can be expressed
as whether the defendant has stated a substantive Fourth Amendment claim on which relief may
be granted. Id.
2
  The “area searched” language, which derives directly from Rakas, 439 US at 148-149, is not a
geographic descriptor, but rather delineates the circumstances under which a defendant may
challenge a search. Rakas was describing a defendant’s privacy expectation in a car’s glovebox,
which is appropriately referred to as “an area” of the car. But the “area searched” language is
properly understood as “a determination of whether the disputed search and seizure has infringed
an interest of the defendant which the Fourth Amendment was designed to protect.” Mead, 503
Mich at 213 n 2 (emphasis added). The “interest” of a defendant does not turn on location; as the
Supreme Court famously observed, “ ‘the Fourth Amendment protects people not places.’ ” Katz
v United States, 389 US 347, 351; 88 S Ct 507; 19 L Ed 2d 576 (1967). Indeed, in the same
string citation in which it cited Rakas, the Mead Court also cited Smith, 420 Mich 1. See Mead,
503 Mich at 213. Smith held that “before a defendant may attack the propriety of a search or
seizure, that search or seizure must have infringed upon an interest of the defendant which art 1,
§ 11 was designed to protect. In making this determination, the court must decide whether the
defendant had an expectation of privacy in the object of the search and seizure and whether that
expectation is one that society is prepared to recognize as reasonable.” Smith, 420 Mich at 28;
see also Katz, 389 US at 353 (“[O]nce it is recognized that the Fourth Amendment protects
people—and not simply ‘areas’—against unreasonable searches and seizures it becomes clear
that the reach of that Amendment cannot turn upon the presence or absence of a physical
intrusion into any given enclosure.”).


                                               -3-
many Americans store their most personal ‘papers’ and ‘effects,’ US Const, Am IV, in electronic
format on a cell phone, carried on the person”).

        In this case, defendant’s cell phone never was searched, and no information was seized
from it. “The right to be free from unreasonable searches and seizures is personal, and the right
cannot be invoked by a third party.” Mahdi, 317 Mich App at 458-459; see also Rakas, 439 US
at 134 (“A person who is aggrieved by an illegal search and seizure only through the introduction
of damaging evidence secured by a search of a third person’s premises or property has not had
any of his Fourth Amendment rights infringed.”). Factors relevant to the determination of
standing, as noted, include ownership, possession, control of the area searched or item seized, as
well as historical use of the item and ability to regulate access. Mahdi, 317 Mich App at 458-
459. Defendant, as a third party to the search, seizure, and subsequent use of Engisch’s cell
phone, cannot demonstrate and has not demonstrated any ownership, possession, control,
historical use, or ability to regulate Engisch’s cell phone. Once defendant sent the initial text
message to Engisch’s cell phone, he no longer had an expectation of privacy in the text message
exchange. See Katz v United States, 389 US 347, 351; 88 S Ct 507; 19 L Ed 2d 576 (1967)
(“What a person knowingly exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection.”). As noted, defendant bears the burden of
establishing standing in order to invoke the Fourth Amendment’s protections. Mahdi, 317 Mich
App at 459. Defendant has not met his burden. Defendant referred to Hinton, where the
Washington Supreme Court determined that a police officer’s use of a third party’s cell phone to
ultimately arrest another individual violated the Washington Constitution. State v Hinton, 179
Wash 2d 862; 319 P3d 9 (2014). However, Hinton lends no support to the standing issue. A
Washington Supreme Court decision is not binding on this Court, as it is at most persuasive
authority. Travelers Prop Cas Co of America v Peaker Serv, Inc, 306 Mich App 178, 188; 855
NW2d 523 (2014). However, Hinton is not persuasive on this point because it is factually
dissimilar in that the police officers in that case did not have a search warrant for the third party’s
cell phone. Hinton, 179 Wash 2d at 865. Moreover, Hinton was decided under the Washington
Constitution, which the court noted “is qualitatively different from the Fourth Amendment and
provides greater protections.” Id. at 868. By contrast, as already discussed, the Fourth
Amendment and Article 1, § 11 of the 1963 Michigan Constitution are coextensive. Slaughter,
489 Mich at 311.3




3
  Defendant also cites to People v Dziura, unpublished per curiam opinion of the Court of
Appeals, issued December, 15, 2015 (Docket No. 323003), to argue that consent is a prerequisite
to an officer using an individual’s cell phone. Id. at 4. Of course, Dziura, as an unpublished
opinion, is not binding on us. MCR 7.215(C)(1). Moreover, Dziura turned on a consent
analysis, as consent is an exception to the warrant requirement, and there was no search warrant
in that case. Therefore, given the facts, the search in Dziura was valid only if consent was
properly obtained. Here, consent is irrelevant because the police officers had a valid search
warrant for Engisch’s cell phone. Furthermore, unlike the police officers in Dziura, the police
officers here did not use defendant’s cell phone at all.


                                                 -4-
        Therefore, defendant has failed to show that he had a legitimate expectation of privacy in
the area searched. As a result, defendant lacks standing to invoke the Fourth Amendment’s
protections, and his argument fails.

                                         B. TRESPASS

       Even if we were to find that defendant had standing to challenge the search, we
nevertheless would reject his argument. Defendant argues that Sergeant Buckberry trespassed on
his property by causing a text message to appear on his cell phone.

        Defendant relies on the “trespass test” set out in United States v Jones, 565 US 400; 132
S Ct 945; 181 L Ed 2d 911 (2012), to argue that the text message he received from law
enforcement constituted a “digital trespass,” resulting in a violation of his Fourth Amendment
rights. In Jones, police officers attached a GPS tracking device to the defendant’s vehicle and
used the device to monitor the vehicle’s movements. Id. at 402-403. The Supreme Court
determined that the government’s physical intrusion on the defendant’s “effect” constituted a
“search” within the meaning of the Fourth Amendment. Id. at 404-405. The Court’s reasoning
in Jones was based on the fact that the government “physically occupied private property for the
purpose of obtaining information” without a search warrant. Id. The same reasoning does not
apply here because a device was not physically attached to defendant’s cell phone in order to
track defendant’s movement or private conversations. Rather, the text message that defendant
received from law enforcement amounted to an electronic communication that did not occupy an
actual physical presence on defendant’s personal property. Because the text message that
defendant received from law enforcement did not constitute a physical trespass on his effect,
defendant’s reliance on Jones is misplaced. The proper inquiry is whether defendant had a
reasonable expectation of privacy. See id., 411 (“Situations involving merely the transmission of
electronic signals without trespass . . . [are] subject to” the reasonable expectation of privacy
test.).

       Affirmed.

                                                            /s/ Kathleen Jansen
                                                            /s/ Thomas C. Cameron
                                                            /s/ Jonathan Tukel




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