Judge rules search legal in Stone case

BESSEMER — Judge Michael Pope heard testimony and arguments regarding whether a search and the eventual arrest of Adam Lee Stone was legal during an all-purpose motion hearing in Gogebic County Circuit Court Tuesday.

Stone, 35, of Hurley, is facing charges of possession of a firearm by a felon, a five-year felony; felonious assault, a four-year felony; possession of heroin, a four-year felony; felony firearm, a two-year felony, and a habitual offender-fourth offense notice.

The charges stem from an incident in Ironwood Township where Michigan State Police troopers and Gogebic County Sheriff’s deputies responded to property on Snowdrift Lane after a report of a serious assault taking place at the property.

The responding officers questioned several people at the property — including Stone — and discovered a gun, which led to Stone’s arrest.

Stone’s attorney, Matthew Tingstad, argued the initial search of the property occurred before a warrant was obtained and therefor any subsequent evidence obtained in the search should be ruled inadmissible and the charges against Stone should be dropped.

“(The responding officers) don’t have probable cause to look around at anything in (the residence), but that’s what they do,” Tingstad said during his closing argument.

“As soon as the trooper goes in there, finds that gun and arrests my client, he’s acting improperly,” he said.

In addition to the written motions submitted in the case, Tingstad questioned two deputies who responded to the incident.

The first deputy, Adam Zak, testified he took a call at the sheriff’s department from a female caller stating there was an assault happening at the property, which Zak testified was owned by Donald Kirby.

Zak, along with other responding officers, arrived at the property and were met by two individuals who weren’t the property owners.

Zak told the court he went inside to talk to one of the individuals, Tracy Gehrke, who was apparently babysitting for Kirby.

While interviewing her, Zak said one of the state troopers who followed him into the building ordered whoever was in a side room to come out.

At this point, Zak said Stone emerged from the room.

Tingstad argued while Gehrke may have granted Zak permission to enter the property to talk to her, the troopers weren’t authorized to enter.

He also based his case on a bag taken into evidence during the search, apparently containing clothes and toiletries, as showing Stone was staying at the property and had a reasonable expectation of privacy against a search there.

Tingstad also called the investigating officer in the case, deputy Jessie Yesney, who testified he remained outside the building with the another individual at the house, Dylan Noble, who told him there was a firearm present.

Yesney testified he was the one who authorized the troopers to search the rest of the property as a safety precaution once he learned of the existence of the gun.

Stone was arrested following the discovery of the gun.

Yesney and Zak both testified the investigation later determined Michael Johnson had been assaulted, or “pistol whipped,” at the property prior to their arrival.

In response to Tingstad’s claim the search was illegal, Gogebic County Prosecutor Nick Jacobs argued the call regarding Michael Johnson’s assault provided the officers with the emergency circumstances to enter the apartment without a warrant. He also said the search of the property was done as a “protective sweep” to ensure the safety of the officers and other people at the property once officers learned there was a firearm present.

“We’ve got classic exigent circumstances here,” Jacobs said, referring to the report of a serious assault. “What are (the officers) supposed to do, sit outside the door and say, ‘Well ... it’s going to take us an hour and a half to get a search warrant and then we’ll come on in and check?’ Imagine what could have transpired during that time — there could be a loss of evidence, a potential loss of life, etc.”

Pope agreed with Jacobs’ argument; ruling not only did Stone lack an expectation of privacy, the circumstances of the case met the exceptions necessary for a warrant-less search to take place.

“From the officers’ standpoint, they were originally called to the scene of a Donald Kirby residence, it doesn’t say Adam Stone residence or Donald Kirby’s rental place or anything like that,” Pope said, addressing why Stone didn’t have a right to privacy on the property. “Once they arrived on the scene, and began interacting with the folks there, the deputies indicated they eventually came into contact with Mr. Stone — which they knew to be a resident of Hurley Wisconsin, not a resident of (the property).

“In fact, the record today is void of any indication of Mr. Stone actually resided at (the property), or even spent the night. There is some talk of some miscellaneous contents of a backpack, but that alone is not enough to ... establish Mr. Stone had a legitimate expectation of privacy.”

Pope also explained there were two ways the search was valid without a warrant — a moot point once it was determined Stone lacked the expectation of privacy needed to require a warrant, but one Pope said he wanted to put into the record in case there is an appeal.

The first was due to Zak obtaining permission to enter the premises, along with the information regarding the presence of a handgun, allowing the officers to conduct the protective sweep that discovered the gun.

He also said the circumstances of the emergency call and the officers’ belief they were responding to a serious injury or immediate threat of an injury allowed them to enter the property as well.