People v. Weaver , 35 Mich. App. 504 ( 1971 )

O’Hara, J.

(dissenting). I am in most vigorous disagreement with my colleagues. I dissent on three grounds.

First, it is to me incredible that the awesome protection of the Fourth Amendment should be afforded to one in manifest illegal possession of an automobile, and one in which he had absolutely no proprietary or possessory interest. It has been and remains the law, as I understand it, that “the Fourth Amendment protects people, not places”. Katz v. United States (1967), 389 US 347, 351 (88 S Ct 507, 511; 19 L Ed 2d 576, 582). How the language that the “right of the people to be secure in their persons, houses, papers and effects” can he torturously extended to one driving a motor vehicle with stolen license plates and by one who had no evidence of title or right of possession, escapes me. I am aware of no holding by the United States Supreme Court of such an extension of the Fourth Amendment protection, and certainly none such as appears in any of the cases cited by my associates. This Court, however, spoke directly to the point in People v. Lovins (1968), 10 Mich App 524, 526.

“The defendant did not have any proprietary or possessory interest in the automobile searched * # # . Under such facts the defendant did not have any standing to raise the legality of the search and seizure.”

Judge Fitzgerald quoted the general rule from which the holding stems with approval in his authored opinion in People v. Hale (1967), 7 Mich App 127, 132.

“ ‘The immunity to illegal searches and seizures is a personal privilege, and evidence wrongfully obtained * * * is not incompetent against accused where the unlawful search and seizure was of the person or property of a third person.’ ”

By including this excerpt, I do not mean to imply that I hold the search in this case was unlawful, I quote it rather to the point of “what if it were unlawful, what difference does it make?” Obviously, the defendant could not raise it.

I am also somewhat at a loss to understand this excerpt from the majority opinion,

“The issue before us is not, however, whether there was probable cause to make the second search —there was. [Citation omitted.] The issue is whether the second search could be conducted without a warrant.”

I read the majority-cited Chambers v. Maroney differently than do my associates. The only difference is that I think it stands for the exact converse of the majority’s application thereof. Since the majority concedes the existence of probable cause to make a search without a warrant at the time and place of the arrest, I cannot read out of Chambers, what seems to me to be rather clear language of Chambers and hardly obiter dictum:

“On the facts before us, the blue station wagon could have been searched on the spot * * * The probable cause factor still obtained at the station house # * # # .” (Emphasis added).

Second, I challenge the holding that a search of an impounded vehicle 48 hours after it was seized is not “immediate” in the terms of Preston v. United States (1964), 376 US 364 (84 S Ct 881, 11 L Ed 2d 777) and Chambers v. Maroney (1970), 399 US 42 (90 S Ct 1975, 26 L Ed 2d 419). It seems to me, so to hold is to disregard completely the diffused responsibilities of a modern metropolitan police department with its necessary differing areas of procedural authority. We are not here dealing with a small town constable, or a sheriff in a small county where the lockup, the vehicle impoundment area, the identification bureau, and the administrative section are in a four or five cell jail with a back yard parking area — and the whole operation staffed by one or two persons. To hold that detectives, patrol car drivers, clerk typists, and impoundment personnel must all drop everything each is doing at the time of one arrest and concentrate upon the search of one car to determine ownership instanter, is utterly unrealistic. Nowhere do I find that under the fact situation here any United States Supreme Court decision holds that a search of an impounded vehicle made within two days after its seizure, and during an effort to establish ownership, is not “immediate.”

In the third place, there was no search. This was pointedly established in People v. Eddington (1970), 23 Mich App 210, 225:

“A ‘search’ in the constitutional sense implies a ‘prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way.’ * * * Such a definition recognizes the gist of the protection afforded by the Fourth Amendment — protection of the individual from unreasonable invasion of privacy.”

I cannot read in the foregoing precedent any prohibition against police officers opening an unlocked glove compartment of a stolen car to look for some evidence of ownership, whether done two days or two weeks after impoundment.

If all the foregoing is not sufficient to establish that no search violative of the Fourth Amendment was made, we turn to People v. Henderson (1967), 6 Mich App 379, which clearly holds that any search is not proscribed when the officers have reasonable cause to believe the automobile was stolen. No time limit is included. In this case, the stolen status of the motor vehicle was and remains incontestable.

In finality, I am utterly confounded by the decisional disposition of the case under the extant fact situation. What possible legal, constitutional, or precedential service can be rendered by remanding this cause, under this language quoted from the majority opinion?

“To decide whether the derivative evidence obtained in this case — evidence tending to show that another crime had been committed — should be suppressed, it is necessary to remand for the taking of further evidence. The record shows that the police, as a result of the legal search immediately upon arrival of the automobile at the police station, obtained the automobile’s serial number and sent out teletype requests for identification of the owner. It may, therefore, appear upon the taking of further evidence that the police would have learned the name of the owner even if they had not searched the glove compartment.”

If we cannot take judicial notice of the fact that automobiles require registration with the Secretary of State, showing the name and address of the owner, and that absent the perfectly normal, legal, routine inspection of a glove compartment that turned up the name and address of the owner, the police could not have otherwise learned it, we can take judicial notice of nothing.

There is no error. There is nothing to remand for. The defendant was convicted in a trial in which no claim of error was made save admission of the “tainted” testimony of the owner of the vehicle that the defendant robbed him at gunpoint. The “taint” was the finding by the police of the owner’s name in the unlocked glove compartment in his own vehicle. The only person with standing to raise the defense of illegal search in this case was the car owner, Mr. Gibson. He did not. If asked about it, I am sure he would have approved it.

So this “search” is violative of the robber’s constitutional protection against the unreasonable search and seizure of his “person, house, papers or effects?” I cannot agree.

I vote to affirm.