People v. Wallin , 172 Mich. App. 748 ( 1988 )

172 Mich. App. 748 (1988) 432 N.W.2d 427

PEOPLE
v.
WALLIN

Docket No. 92751.

Michigan Court of Appeals.

Decided November 8, 1988.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Cris J. VanOosterum, Prosecuting Attorney, and J. Ronald Kaplansky, Assistant Attorney General, for the people.

State Appellate Defender (by Ronald J. Bretz), for defendant on appeal.

Before: DANHOF, C.J., and HOOD and R.L. OLZARK,^[*] JJ.

PER CURIAM.

Defendant was convicted following a jury trial of carrying a concealed weapon, MCL 750.227; MSA 28.424, and was subsequently sentenced to one year's probation, with sixty days in jail, and assessed $1,610 in fines and costs. He appeals as of right, claiming that the weapon found in his van by the arresting officers should have been suppressed and that the trial court erred in denying his requested instruction on the "place of business" exception to carrying a concealed weapon. We affirm.

At the preliminary examination, the district judge denied defendant's motion to suppress the gun found in his van. A trial court's decision on a motion to suppress evidence will be reversed only if the court abused its discretion or if its decision is clearly erroneous. People v Tanis, 155 Mich. App. 806, 808; 396 NW2d 544 (1986), lv den 426 Mich. 877 (1986). A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made. People v Harris, 164 Mich. App. 567, 571; 417 NW2d 502 (1987).

Plaintiff correctly asserts that defendant was properly "stopped and frisked." The stop-and-frisk exception to the warrant requirement allows seizure of objects found during a search necessitated by a legitimate concern for personal safety. The reasonableness of such a search depends on a balancing of the need to search against the intrusion the search entails. Terry v Ohio, 392 U.S. 1, 21; 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968).

In this case, we find that the search of the van and the seizure of defendant's gun found under the driver's seat resulted from the officers' legitimate safety concerns. Defendant was found in a van parked after hours in a used car lot where there had been reports of recent thefts. Although one arresting officer indicated at the preliminary examination that at the time the gun was found the buildings in the area were deemed secure and defendant was not suspected of any criminal activity, the other officer, who actually reached for the gun, testified that he had not finished checking the buildings and suspected that there was a breaking and entering in progress. This officer testified that the rag wrapped around the gun was visible from his position outside of the van. When he asked defendant what the object was, defendant repeatedly attempted to reach down beside his seat. We believe that the arresting officer had probable cause to retrieve the rag-wrapped object and to open the box once he retrieved it from underneath defendant's seat, based upon his past experience and training as a police officer. Given the entire circumstances, there was no clear error in finding that the officers were justified in making a protective Terry search and in denying defendant's motion to suppress.

We also find no error in the trial court's denial of defendant's requested jury instruction. Defendant contended that, because he was in the business of delivering produce, his van was his "place of business" for purposes of the concealed weapons statute.

MCL 750.227; MSA 28.424 provides:

[A] person who shall carry a pistol concealed on or about his person, or, whether concealed or otherwise, in a vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him, without a license to so carry the pistol as provided by law ... shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by fine of not more than 2,500 dollars. [Emphasis added.]

This Court has held, contrary to plaintiff's position, that the words "other land" indicate the legislative intent to limit the place of business exception to business property on land. People v Brooks, 87 Mich App 515-518; 275 NW2d 26 (1978), lv den 406 Mich. 946 (1979). To adopt defendant's reasoning would render the statutory prohibition inapplicable to any traveling business person who wishes to carry a concealed weapon. This was certainly not the legislative intent.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.