People v. Daniels , 50 Mich. App. 754 ( 1973 )

50 Mich. App. 754 (1973) 213 N.W.2d 780

PEOPLE
v.
DANIELS

Docket No. 15813.

Michigan Court of Appeals.

Decided December 6, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.

Hoffa, Chodak & Robiner, for the defendant.

Before: LESINSKI, C.J., and DANHOF and BASHARA, JJ.

Leave to appeal applied for.

LESINSKI, C.J.

Defendant was convicted by a Recorder's Court jury of breaking and entering a business establishment with intent to commit larceny. MCLA 750.110; MSA 28.305. He appeals as of right.

The first challenge raised on appeal concerns the defendant's arrest. He argues that there was insufficient probable cause to justify his arrest. The arresting officer responded to a radio run alerting him that a breaking and entering of a garage on an alley was occurring near the intersection of Butternut and Tillman Streets. The officer was driving in the area with his lights off when he saw a light in a garage adjacent to a Butternut address approximately one-half block away from the intersection of Butternut and Tillman. After seeing the defendant and a companion walk out of the garage, the officer turned his lights on, whereupon the defendant and his companion began to run. The officer gave chase on foot and made the arrest.

The Legislature has prescribed a police officer's power to arrest without a warrant in response to a radio run. He may arrest:

"[w]hen he has received such positive information broadcast from any recognized police or other governmental radio station * * * as may afford him reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it." MCLA 764.15(f); MSA 28.874(f).

This Court has held that where the arresting officers received information by radio of a glass breaking, and defendant was the only person on the street coming from the store in which a plate glass door had been smashed and defendant had responded negatively to the officer's question as to whether he had heard glass breaking, such facts constituted probable cause to arrest without a warrant. People v Daniel Jones, 37 Mich. App. 91; 194 NW2d 433 (1971).

In the instant case, the radio run's specification of garage, alley, and location, coupled with the officer's observance of the defendant coming from the garage and running when the police car's lights were turned on, constitute sufficient probable cause to warrant a man of reasonable caution to believe that a felony had been committed and that the defendant had committed it. Thus, the arrest was valid.

Defendant next contests the admissibility of evidence obtained from a search of his car.

Defendant's arrest occurred at approximately 11:30 p.m. After being taken to the police station, a codefendant who was arrested simultaneously with the defendant made a statement at 2 a.m. that the defendant had taken a fishing box out of the garage and placed it in the trunk of his car. The police then removed the keys to the defendant's car without his consent from the inventory of his property, picked up the car, and searched the car immediately upon its arrival at the station. The search disclosed a fishing box full of tooling accessories and other tools appropriate for use in a machine shop, which was the nature of the business located on the property the garage was incident to.

Upon learning of the search of the car at the trial, the defendant objected to admission of the above items, but the trial court allowed the fruits of the trunk search into evidence.

Automobile searches and seizures have been a popular topic of review before the United States Supreme Court. As early as 1925, the Court made clear that warrant requirements in automobile situations differed from those in home or office situations. Carroll v United States, 267 U.S. 132; 45 S. Ct. 280; 69 L. Ed. 543 (1925). However, the articulation of precisely what these differences are has been recently described by the Court as "something less than a seamless web". Cady v Dombrowski, 413 U.S. 433, 440; 93 S. Ct. 2523, 2527; 37 L. Ed. 2d 706, 714 (1973).

Granting this difficulty, the principle which controls the instant case threads the course of most of the Supreme Court decisions on automobile searches. That principle is simply that the minimal justification of a warrantless search requires probable cause plus an additional factor, sometimes denominated as "exigent circumstances", sanctioning the substitution of the searching officer's determination of probable cause for that of a neutral magistrate. This additional factor has ranged from the mobility of a car on the open road in Carroll, supra, and Chambers v Maroney, 399 U.S. 42; 90 S. Ct. 1975; 26 L. Ed. 2d 419 (1970), to the local official noncriminal involvement with automobiles enunciated in Cady, supra, at 413 US 441-442; 93 S. Ct. 2528; 37 L Ed 2d 714-715.

This principle was applied to station searches in Chambers, supra. Chambers held that if Carroll applies at the scene of the contact, that is, if there is probable cause at the scene plus an additional factor justifying the lack of a warrant, then the car may be taken to the station and searched. This holding was supported by the common sense rationale that there is no greater intrusion at the station than there would have been at the scene.

The application of these principles to the instant case dictates a conclusion that the search of the defendant's car without a warrant was invalid. At the scene of the defendant's arrest, there was no probable cause whatsoever to search the defendant's car. The police did not know that the car was involved until the accomplice's statement at the station two hours after the arrest. Therefore, this lack of probable cause at the scene prevents a Chambers justification of the station search.

Once the accomplice made the statement that the defendant had placed a fishing box from the complainant's premises into the car trunk, there is no question that at this point probable cause existed to search the automobile. However, we find that the failure of the police to obtain a warrant was inexcusable. Both the defendant and his accomplice were in custody. There is no appearance on the record of any additional factor which when coupled with probable cause would justify the warrantless search. The subsequent appearance of probable cause at the station cannot alone justify the warrantless search. "Here there was probable cause, but no exigent circumstances justified the police in proceeding without a warrant." Coolidge v New Hampshire, 403 U.S. 443, 464; 91 S. Ct. 2022, 2037; 29 L. Ed. 2d 564, 581 (1971). As stated in Carroll, supra, at 267 U.S. 156; 45 S. Ct. 286; 69 L Ed 552-553: "In cases where the securing of a warrant is reasonably practicable, it must be used." (Emphasis supplied.)

This case is distinguishable from this Court's decision in People v Bukoski, 41 Mich. App. 498; 200 NW2d 373 (1972), which upheld the search of an automobile without a warrant. Although the car was, as here, unoccupied, locked, and parked on the street, in Bukoski, the defendants were still at large, and the possibility that they could have therefore moved the car was a sufficient exigent circumstance to make the opportunity to search "fleeting" and to justify search without a warrant. Here the defendant and his accomplice were in custody and there was no similar fleeting opportunity to search.

Since the failure to secure a warrant thus invalidated the search and seizure, the trial court erred in admitting the fruits of that search into evidence. There was clearly sufficient evidence apart from the fruits discovered in the trunk to convict the defendant. However, it cannot be said beyond a reasonable doubt that the excluded evidence did not contribute to the conviction of the defendant. Harrington v California, 395 U.S. 250; 89 S. Ct. 1726; 23 L. Ed. 2d 284 (1969); People v Timmons, 34 Mich. App. 463; 192 NW2d 75 (1971). Therefore, the conviction of the defendant must be reversed.

Reversed and remanded for new trial.

BASHARA, J., concurred.

DANHOF, J. (dissenting).

I dissent. I cannot agree with the majority's disposition of the automobile search issue and its reliance upon Coolidge v New Hampshire, 403 U.S. 443; 91 S. Ct. 2022; 29 L. Ed. 2d 564 (1971). There is no majority opinion in Coolidge. The judgment of the Court in Coolidge was (part I of Justice Stewart's opinion) that the warrant authorizing the search of Coolidge's car was invalid and (in part II D of that opinion) that, since the authorities had known for 2-1/2 weeks of the presence of Coolidge's car and had planned all along to seize it, there were no exigent circumstances to justify failure to obtain a valid warrant. The context of the search in Coolidge is to be contrasted with that in the instant case. In Coolidge, defendant's car was seized when parked in his private driveway. Here, defendant's car was parked in a public alley near the scene of the crime. In Coolidge, the arrest and search were made at a time remote from the original suspicions of wrong-doing. Here, the arrest was made immediately and the search conducted two hours later. In Coolidge, it was only after a prolonged search of the car and analysis of the findings that the authorities were able to conclude positively that the car had a connection with the crime. Here, given the statement of defendant's companion, there was probable cause to believe that defendant's car contained goods stolen that same evening.

The question presented in this case is where does the factual situation present here fit within the spectrum of search and seizure law represented by the decisions in Coolidge, supra, and Chambers v Maroney, 399 U.S. 42, 90 S. Ct. 1975; 26 L. Ed. 2d 419 (1970). If the police had known at the scene of defendant's arrest of the presence of his car and its connection with the crime, they could have searched it there or immediately upon arrival at the station house. When the police learned of the car two hours after the arrest, they were certainly justified in seizing it. Between the available alternatives of either seizing and holding the car pending a magistrate's determination of probable cause or carrying out an immediate search without a warrant, there is no constitutional difference in the degree of police intrusion. As was said in Chambers:

"Arguably, because of the preference for a magistrate's judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ``lesser' intrusion is permissible until the magistrate authorizes the ``greater.' But which is, the ``greater' and which is the ``lesser' intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment." 399 US 51-52; 90 S. Ct. 1981; 26 L. Ed. 2d 428.

I, therefore, vote to affirm.