People v. Blessing , 378 Mich. 51 ( 1966 )

Kelly, J.

Defendant appeals from a jury conviction of carrying a concealed weapon and asserts as error the failure of the.trial court to grant his motion to suppress evidence.

Two points are argued: First, that probable cause was not established to support the search without a warrant, of defendant’s person; and, second, that article 1, § 11, of the 1963 Michigan- Constitution (article 2, § 10, 1908 Constitution), violated the Fourteenth Amendment to the United States Constitution as interpreted by the case of Mapp v. Ohio, 367 US 643 (81 S Ct 1684, 6 L ed 2d, 1081, 84 ALR2d 933.)

The only witness at the examination (December 6, 1963), which resulted in defendant Blessing being bound over for trial, was Detroit police officer Charles McNamara.

He testified that on November 23, 1963, about 1 p.m., he, while in uniform in a scout car, heard the radio call which resulted in his car and three other scout cars proceeding to the retail jewelry store located at 19376 Livernois avenue, Detroit, Michigan; that the manager, a saleslady, and two white males were in the store; that after talking to the manager and the saleslady he talked “to the two men out there and questioned them as to their business in the store there.” McNamara further testified:

“I asked Bichard Charles Blessing to identify himself to me, and as to what his purpose was as to being in that location there, and he stated to me that he was there in regards to making a purchase of some jewelry, and that he had made an appointment with the manager, Herbert Kay, to come back at 4:30 that day, to make a purchase. * * * I asked Mr. Martin for his identification, and he did not produce any identification, and he told me he was Father John Moore and that he was, — or rather, I asked him where they were located, and Bichard Blessing stated at that time that they had just gotten into town, and they had no address here at this time. * * * I went to talk to Blessing, and I wanted to take him in the back room and try and figure out their story, and as we walked back there I 'informed him that I was going to search him, and' upon searching him I found a pair of handcuffs, as well as a loaded .38 revolver on his hip.”

The court refused defendant’s objection to the introduction in evidence of the revolver the police officer testified he found concealed on defendant Blessing’s person, stating that he disagreed with counsel that Mapp v. Ohio, supra, invalidated the Michigan Constitution in re search and seizure.

Motion to suppress evidence and quash information was duly made by counsel for appellant, heard before the presiding judge for the recorder’s court for the city of Detroit, and denied.

At the March 19, 1964, trial, in addition to officer McNamara, the people introduced the testimony of three police officers and Mr. Kay, the manager of the jewelry store. Mr. Kay testified why the behavior of appellant Blessing and his companion Martin, on the sidewalk before entering the jewelry store caused him to call for help by pressing the alarm button and how their actions after entering the store confirmed his suspicions. The police officers’ testimony established that after Blessing was searched, a search of Martin was also made which disclosed that he had on his person a loaded .38 caliber revolver.

■ At the conclusion of the people’s case, counsel for appellant again moved to suppress the evidence.' The trial court indicated that the officers had a right to make the search, and denied said motion.

Because of extensive questioning by this Court during oral argument, the assistant prosecuting attorney of Wayne county asked for, and was granted, the right to file a supplemental brief."'We quote from that brief as follows:

“The appellee herein is not, nor has he been unfamiliar with the Michigan practice of requiring pretrial motions to test the legality of a search and seizure. People v. Marxhausen, 204 Mich 559 (3 ALR 1505); People v. Miller, 217 Mich 635; People v. Bass, 235 Mich 588; People v. Heibel, 305 Mich 710; People v. Taylor, 341 Mich 570; People v. Robinson, 344 Mich 353; People v. Ferguson, 376 Mich 90.

“Furthermore, the appellee admits knowledge of the companion rule that the facts upon which' a pretrial motion is to be determined are the preliminary examination testimony and that these facts may not be amplified by the trial testimony for purpose of the appeal. People v. Taylor, supra; People v. Zeigler, 358 Mich 355; People v. Williams, 368 Mich 494. * * *

“The position of the appellee is that the trial court could have refused to hear argument by defense counsel on the issue of search and seizure for the reason that the matter had already been decided by pretrial motion and that the issue of the legality of the search and seizure was collateral to the main issue of the guilt or innocence of the defendant on trial.

“The appellee further states that it is his opinion that the trial court should not have granted a second hearing on the motion to suppress and that to deny such a motion would be in line with better Michigan practice in that a defendant is not legally entitled to a second hearing on the legality or illegality of a search and seizure. People v. Kerwin, 234 Mich 686; People v. Kramer, 260 Mich 94.

“However, the trial court, in its discretion, permitted the issue to be renewed by defense counsel, and at their urging, heard arguments outside the presence of the jury, and then rendered its decision denying the renewed motion to suppress. By following this course of action, the trial court gave the defendants a second chance to urge the illegality of the search and seizure. Upon a full and fair hearing, it was determined that the defense counsel’s motion be denied. Does this decision of the trial court render the renewal of the issue of the legality of the search nugatory and so much idle waste of judicial time? We think not. It is the position of the appellee that the people of the State of Michigan, having twice been put to the task to defend the search and the seizure, in all fairness should also be the recipients of any benefit conferred by reason of the second argument and not be limited or bound by the second argument only if the people should lose same. Therefore, the position of the appellee has been based primarily on the apparent fairness of this latter premise.

“In legal support of this premise we would direct the Court’s attention to the following Michigan precedents.”²

I believe it will assist the courts and the law enforcement officers if this decision is confined to answering two questions:

Question No. 1: Was sufficient evidence introduced at the preliminary examination justifying the court’s denial of defendant’s motion to suppress evidence and binding defendant Blessing over for trial?

Question No. 2: Did the judge at the preliminary examination rightly conclude that he had the right and duty to follow and enforce the constitutional provisions in re search and seizure?

Question No. 1.

In determining the legality of a search and seizure, this Court should give serious thought to the particular situation and all its attendant circumstances.³

As Officer McNamara turned his scout car toward the jewelry store, knowing that three other scout cars had been directed by radio to converge on this store, he had reason to conclude that he was approaching a point of great danger.

It is my opinion that the police officers would have been justified under these circumstances to have immediately taken the necessary steps to assure themselves that those within the jewelry store were not carrying concealed weapons.

In addition, however, police officer McNamara, trying to learn who these people were and obtain their explanation of their actions that caused the manager to push the alarm button, received from appellant Blessing the answer that they had come from Illinois to that jewelry store to buy a diamond and “had just gotten into town, and they had no address here at this time.”

I quote with approval the following from the people’s brief:

“The earlier recitation in this section of the brief of the facts, possessed by the police officers at the time of arrest, certainly demonstrates the officers acted with reasonable prudence and caution and had good reason to believe that these men were committing a felony. It is respectfully submitted that if the police officers had charged into the jewelry store, the result of an official police broadcast and had seen nothing ostensibly wrong and walked rig’ht out without further investigation, they indeed would have been derelict in their duty and subject to severe censure by their superiors. The police, under the facts in the present case, acted reasonably and the trial court’s determination that they did in fact so act cannot be realistically subject to doubt.”

Officer McNamara did not have to have legal evidence that appellant entered the jewelry store to commit robbery and, if necessary, murder, but only sufficient facts for a reasonably discreet and prudent man to conclude such was true, as is disclosed by Husty v. United States, 282 US 694 (51 S Ct 240, 75 L ed 629, 74 ALR, 1407), where the court held:

“To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected act. It is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched.” (Syllabus 2.)

The court conducting the examination had sufficient evidence to deny the motion to suppress and to bind the defendant over for trial.

Question No. 2.

Appellant contends that the provisions of article 2, § 10, of the 1908 Michigan Constitution which provides, “That the provisions of this section shall not be construed to bar from evidence in any court of criminal jurisdiction, or in any criminal proceeding-held before any magistrate or justice of the peace, any narcotic drug or drugs, any firearm, rifle, pistol, revolver, automatic pistol, machine gun, bomb, bombshell, explosive, blackjack, slungshot, billy, metallic knuckles, gas-ejecting device, or any other dangerous weapon or thing, seized by any peace officer outside the curtilage of any dwelling house in this State,” has been invalidated by the United States Supreme Court decision in Mapp v. Ohio, supra.

The facts in the Mapp Case are so different than the facts in the present appeal. Justice Clark, in the Mapp Case, labeled the search as “official lawlessness” and “a flagrant abuse” of basic rights, and described the forcible entry and search as follows (pp 644, 645) :

“On May 23, 1957, 3 Cleveland police officers arrived at appellant’s residence in that city pursuant to information that ‘a person [was] hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a larg-e amount of policy paraphernalia being-hidden in the home.’ Miss Mapp and her daughter by a former marriage lived on the top floor of tbe 2-family dwelling. * * *

“Running roughshod over appellant, a policeman ‘grabbed’ her, ‘twisted [her] hand,’ and she ‘yelled [and] pleaded with him’ because ‘it was hurting.’ Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child’s bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search.

“At the tidal no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for.”

The Cleveland police forced their way into the Mapp home. The Detroit police entered the jewelry store in response to the manager’s call for help.

The people in their brief urge “this Court to affirm the reasonable exercise of the police power of this State, found in article 1, § 11, of the 1963 Michigan Constitution and hold same not to be repugnant and in violation of the United States Constitution by reason of the holding in Mapp v. Ohio, supra,” and review Michigan’s dealing with search and seizure as follows:

“The decision in Mapp made it incumbent upon the several States to adopt the exclusionary rule of evidence as part and parcel of the Fourth Amendment’s prohibitions against unreasonable searches and seizures. It specifically reversed a prior decision of that court in the case of Wolf v. Colorado, 338 US 25 (69 S Ct 1359, 93 L ed 1782). However, Michigan was not one. of the target States at which this''constitutional arrow was pointed. In 1919 the highest court in Michigan, just five years after the Federal courts' adopted the exclusionary rule of evidence in Federal trials, became the first State in the Union to follow the Federal courts’ lead and voluntarily imposed on itself an exclusionary rule of evidence. This same exclusionary rule, as first expounded in the case of People v. Marxhausen, 204 Mich 559, is still the rule in the State of Michigan to this day. In the interim period of time from the adoption of this rule to 1936, there reigned in Detroit a seige of lawlessness and terror vented upon the public. * * * As the result of these crimes and' the advent of the automobile, the people of the State of Michigan in 1936 voted and passed a constitutional amendment adding a proviso to then article 2, § 10, of the 1908 Constitution dealing with unreasonable searches and seizures:

“ ‘Provided however that the provisions of this section shall not be construed to bar from evidence in any court of criminal jurisdiction or in any criminal proceeding held before any magistrate or justice of the peace any firearm, rifle, pistol, revolver, automatic pistol, machine gun, bomb, bombshell, explosive, blackjack, slungshot, billy, metallic knuckles, gas-ejecting device, or any other dangerous weapon or thing seized by any peace officer outside the curtilage of any dwelling house in this State.’

“In 1952 the State legislature proposed and the people voted and ratified another amendment to the constitutional provision, dealing with the reprehensible traffic in narcotics with the words ‘any narcotic drug or drugs.’ Eleven years later in 1963, they again, through duly elected delegates of the State of Michigan, reaffirmed its earlier provisions by inserting into their new Constitution substantially the same public protection previously found necessary.

“The people, who are the ultimate source of sovereignty, have reasonably expressed their will on three separate occasions. The purpose of this proviso is to protect the safety of the public, a proper aim of the police ■ power.”

Emphasizing that Mapp did not usurp State rights in re search and seizure, the people call to this Court’s attention the first case considering Mapp in the United States Supreme Court⁴ where, in affirming convictions for possession of marijuana, the court stated:

“Mapp, however, established no assumption by this court of supervisory authority over State courts * * * and, consequently, it implied no total obliteration of State laws relating to ¿rrests and searches in favor of Federal law. Mapp■ sounded no death knell for our federalism. * * * The States are not thereby precluded from, developing workable rules governing arrests, searches and seizures to meet The practical demands of effective criminal investigation and law enforcement.’ ”

Appellant attempts to discount the Ker decision by stating that the opinion was not adopted by a unanimous court and calls attention that, “In the cases of Stoner v. California, 376 US 483 (84 S Ct 889, 11 L ed 2d 856), and Preston v. United States, 376 US 364 (84 S Ct 881, 11 L ed 2d 777), both decided after Ker, the United States Supreme Court reversed convictions obtained after searches by State officers acting without warrants.”

The Preston v. United States decision condemned a search as “being too remote in time or place to be treated as incidental to the arrest,” and did not even refer to the Ker decision.

The Stoner v. California decision condemned a search of defendant’s hotel room without a warrant because it was not “substantially contemporaneous and confined to the immediate vicinity of arrest.” The only reference to Ker is found in the footnote on pages 486 and 487, which reads:

“ ‘The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, 267 US 132, 158 (45 S Ct 280, 69 L ed 543, 39 ALR 790); Weeks v. United States, 232 US 383, 392 (34 S Ct 341, 58 L ed 652, LRA1915B, 834, Ann Cas 1915C 1177). * * * But the right does not extend to other places.’ Agnello v. United States, 269 US 20, at 30 (46 S Ct 4, 70 L ed 145, 51 ALR 409). See, also, Ker v. California, 374 US 23, 42, n 13; Lustig v. United States, 338 US 74, 79, 80 (69 S Ct 1372, 93 L ed 1819).”

Neither Mapp nor Ker held that the States must be governed by fixed formulas following Federal evidentiary rules. In fact, the State of Michigan, which appellant claims is illegally ruthless in its method to combat crimes, has protected the accused beyond those rules provided by Federal procedures at Federal trials. Michigan requires the holding of a preliminary examination with rights of confrontation and cross-examination. The Federal code of criminal procedure does not provide such a safeguard. In Michigan we must not only advise the accused of the charges made against him, but also, the names of the witnesses the State will call to prove those charges. Under the Federal system the accused does not learn the identity of the witnesses against him until those witnesses are called to the stand in open court when the trial'is in pr.qg-; ress. GCR 1963, 785.5, commands the prosecuting attorney to give written notice to the defendant at the time of his arraignment on the information, of any confession or admission made hy him to the police. These examples are hut a few of the differences in procedure between the courts of Michigan and the Federal courts.

The same charges appellant makes in this appeal as to the effect of Mapp v. Ohio upon the validity of our Michigan Constitution was made by appellant in In re Winkle, 372 Mich 292, certiorari denied 379 US 645 (85 S Ct 611, 13 L ed 2d 551). The writer of this opinion answered appellant’s challenge in Winkle by holding that the Mapp v. Ohio decision did not render the provisions found in article 2, § 10, of the 1908 Constitution invalid.

I answer the present appellant as I did the appellant in Winkle and refer to and incorporate as a part of this opinion what I wrote in Winkle. I again repeat (pp 324, 325):

“The Michigan proviso does not condone illegal search. It was an expression by the people of this State to the citizenry that if they have in their possession, outside the curtilage of their dwelling, drugs, firearms, or dangerous weapons, or things, said possessor would not have the right to question the legality of the search as a defense to illegal possession.”

Affirmed.

O’Hara, J., concurred with Kelly, J.

2 People v. Cardella, 233 Mich 505; People v. Feltner, 234 Mich 209; People v. Nutter, 255 Mich 207; People v. Lee, 371 Mich 563.

3 People v. Licavoli, 245 Mich 202; People v. Miller, 245 Mich 115; People v. Lewis, 269 Mich 382; People v. Gonzales, 356 Mich 247; People v. Kuntze, 371 Mich 419; Brinegar v. United States, 338 US 160 (69 S Ct 1302, 93 L ed 1879); Ker v. California, 374 US 23 (83 S Ct 1623, 10 L ed 2d 726).

4 Ker v. California, 374 US 23, 31, 34 (83 S Ct 1623, 10 L ed 2d 726).