People v. Roberson , 80 Mich. App. 241 ( 1977 )

80 Mich. App. 241 (1977) 263 N.W.2d 42

PEOPLE
v.
ROBERSON

Docket No. 77-44.

Michigan Court of Appeals.

Decided December 6, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Gerald D. Warner, Prosecuting Attorney, and Gerald W. Gibbs, Assistant Prosecuting Attorney, for the people.

William C. Marietti, for defendant on appeal.

Before: R.B. BURNS, P.J., and D.E. HOLBROOK and R.B. MARTIN,^[*] JJ.

PER CURIAM.

Defendant was charged with carrying a concealed weapon. MCLA 750.227; MSA 28.424. He was convicted after a bench trial.

There was a motion to suppress the evidence made on the basis of the preliminary examination. It was denied by a circuit judge. The motion was renewed during trial before another circuit judge. It was again denied.

To reach the merits the facts are important. The court found the police were credible and the defendant was not. The defendant was driving his mother's car. Larry Gates was a passenger. Both were wanted in another county on uttering and publishing warrants. The defendant saw a couple walking on the street. He did not know their names but had seen them around. He picked them up and agreed to drive them to a doctor's for $1. He was stopped by the police. He and Larry were arrested on the basis of the warrants. Upon arrest the defendant was loud and boisterous and talked about a quantity of money that was his. There was money on the dashboard. The police told him they would inventory the car because of his complaints about the money. Defendant insisted he wanted to be sure all his tapes were in the car and that they were left there. The officer impounded the car, made an inventory search at the scene and found a gun in a tape box.

The search was not made incidental to the arrest as it was made after the defendant had been arrested and placed in the police car. There was no probable cause to search for contraband. However, the search can be sustained on two grounds:

(1) It was made at the request of the defendant since he asked that the officer be sure all his tapes were kept in the car.

(2) It was a valid inventory search. South Dakota v Opperman, 428 U.S. 364; 96 S. Ct. 3092; 49 L. Ed. 2d 1000 (1976).

The two bases are closely related. If the officer was making an "inventory" search solely to find contraband, it would be impermissible. The request to keep the tapes safe was made only after the announcement that the car would be impounded and was probably a result of that knowledge.

The inventory search was proper if the impoundment was proper. We feel in this case the impounding of the automobile was reasonable under the circumstances. This was a normal, standard police procedure. The defendant and his close friend in the front seat were arrested on felony charges. The people in the back seat were a couple defendant had seen around but he did not even know their names. The police need not entrust the defendant's mother's car to such people. The defendant did not ask that this be done. It would have been irresponsible to pull the automobile to the side of the road and leave it there.

Under the circumstances it was reasonable to impound the car. It was therefore proper to make an inventory of the car's contents, especially in view of the defendant's conduct and remarks about the money and his tapes.

The failure to produce the tape box went to the weight of the people's case. The defendant should have been allowed to explain what happened to the uttering and publishing charge once that charge was brought to the attention of the court. Failure to do so, however, was harmless error. This was a bench trial and the weight of the evidence against the defendant was overwhelming.

Affirmed.

NOTES

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