People v. Rivard ( 1975 )

59 Mich. App. 530 (1975) 230 N.W.2d 6

PEOPLE
v.
RIVARD

Docket No. 19858.

Michigan Court of Appeals.

Decided March 12, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.

Campbell, Lee, Kurzman & Leitman (by Thomas G. Plunkett), for defendant on appeal.

Before: ALLEN, P.J., and T.M. BURNS and R.M. MAHER, JJ.

R.M. MAHER, J.

Defendant was found guilty by a jury of armed robbery, MCLA 750.529; MSA 28.797. He was sentenced to a term of from 12 to 30 years in prison and appeals.

At approximately 10:30 a.m. on August 17, 1973, two men with a gun entered the home of Richard Foster. Deborah Foster and her grandmother, Margie Foster, were upstairs. Both women were tied at the wrists and ankles. Taken from the house were paintings, rifles, radios, silverware, jewelry, a stereo, two sapphire rings, $80 in cash and a leather jacket.

Defendant claims that the trial court erred by admitting into evidence, over his objection, a sapphire ring seized from defendant's property locker at the county jail without a warrant. During an inventory of defendant at the police station after his arrest, Detective Roger Van Alstine noticed a blue sapphire ring on defendant's hand. The following morning, after reviewing a list of the property taken in the robbery, Detective Van Alstine realized that this ring could be one of the items taken. The detective went to the Oakland County Sheriff's Department where defendant was jailed, talked to the deputy there, wrote a receipt and obtained the ring from defendant's personal property locker. Defendant moved to suppress the ring because it was seized without a warrant. The motion was denied.

In People v Trudeau, 385 Mich. 276; 187 NW2d 890 (1971), cert den, 405 U.S. 965; 92 S. Ct. 1169; 31 L. Ed. 2d 240 (1972), seizure of a pair of shoes from defendant, on mere suspicion, without a warrant, while defendant was incarcerated on an unrelated charge, was held to be illegal. People v Robinson, 388 Mich. 630, 632-633; 202 NW2d 288 (1972), on the other hand, held that "[i]nformation obtained by a police officer through the exercise of his senses as he observes articles being removed by a prisoner from his pockets and transferred to a receptacle for safekeeping is not information obtained as a result of a search". The threshold question, of course, is whether there was a search. That is, whether police activity has violated defendant's reasonable expectation of privacy. Katz v United States, 389 U.S. 347; 88 S. Ct. 507; 19 L. Ed. 2d 576 (1967). Here, the ring was initially discovered during a casual observation of the article in plain view. It was not first seen because of an unjustified invasion of defendant's right of privacy. See People v Robinson, 37 Mich. App. 115, 119-121; 194 NW2d 537 (1971), concurring opinion of Judge (now Justice) LEVIN, affirmed 388 Mich. 630; 202 NW2d 288 (1972). Nevertheless, what about the "second look" taken at the ring?

In United States v Edwards, 415 U.S. 800; 94 S. Ct. 1234; 39 L. Ed. 2d 771 (1974), the Supreme Court upheld the search without a warrant and seizure of a defendant's clothing while he was being held in a local jail after arrest. The majority opinion stated that such a seizure is permissible "where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant's name in the `property room' of the jail and at a later time searched and taken for use at the subsequent criminal trial". 415 U.S. at 807 (footnote omitted).

In the present case, we do not go so far. The purpose of Detective Van Alstine's "second look" was connected with the crime in question. After checking a list of the property taken in the robbery, Detective Van Alstine had probable cause to believe that the ring defendant was wearing at the time of his incarceration was material evidence of the crime for which he had been arrested. The item had remained in police custody after having been discovered when defendant deposited his personal belongings with police prior to being jailed. Defendant concedes that no warrant would have been required to seize the ring during the inventory. See People v Robinson, 388 Mich. 630; 202 NW2d 288 (1972). Thus, a search warrant to again look at the ring, already in police custody, does not make sense. Once the ring had been exposed to police view under unobjectionable circumstances and lawfully taken by the police for safekeeping, any expectation of privacy with respect to that item had at least partially dissipated so that no reasonable expectation of privacy was breached by Detective Van Alstine taking a "second look". See United States v Grill, 484 F2d 990 (CA 5, 1973), cert den, 416 U.S. 989; 94 S. Ct. 2396; 40 L. Ed. 2d 767 (1974).

Moreover, in light of the equivocal identification of this blue sapphire ring by its alleged owner, Richard Foster, the eyewitness identification of defendant by Deborah and Margie Foster, and the matchbook cover seized from defendant showing directions to the Foster home, even the improper admission of the ring into evidence would have been harmless beyond a reasonable doubt. See People v Swan, 56 Mich. App. 22; 223 NW2d 346 (1974).

Defendant's other claim of error concerns the lineup conducted at the county jail. Defendant contends that it was so suggestive and conducive to mistaken identification that it violated due process of law, Stovall v Denno, 388 U.S. 293; 87 S. Ct. 1967; 18 L. Ed. 2d 1199 (1967), and gave rise to his misidentification at trial.

Deborah Foster identified defendant in a police lineup held with six men, including defendant. All had on blue shirts and blue pants and were made to step forward, turn around and repeat the phrase: "Hasn't your old man bought you a ring yet?" The six men were similar in appearance and an attorney, present at the lineup, expressed satisfaction with it.

When counsel is present at a lineup, the burden rests with defendant to allege and factually support a claim that the lineup was impermissibly suggestive. People v Curtis, 34 Mich. App. 616; 192 NW2d 10 (1971). Defendant, in this case, has failed to carry that burden. Defendant, as compared to the other members of the lineup, was neither the shortest nor the tallest, the youngest nor the oldest [see People v Jones, 47 Mich. App. 160; 209 NW2d 322 (1973), People v Anthony, 35 Mich. App. 269; 192 NW2d 333 (1971), lv den, 387 Mich. 754 (1971)], and there was at least one other person in the lineup with facial hair [see People v Hughes, 24 Mich. App. 223; 180 NW2d 66 (1970)].

Moreover, even assuming irregularities at the lineup, Deborah Foster's in-court identification of defendant had a source independent of the lineup. Miss Foster testified that she saw defendant for approximately eight minutes during the course of the daylight robbery. He was very close to her. He spoke to her and he touched her. Furthermore, Miss Foster had seen both defendant and his brother on the day before the robbery. They were walking near the Foster home and defendant had come up to the house and asked Miss Foster if she had seen a little girl. An independent source of identification existed.

Affirmed.