People v. Stergowski

391 Mich. 714 (1974) 219 N.W.2d 68

PEOPLE
v.
STERGOWSKI

No. 4 January Term 1974, Docket No. 54,875.

Supreme Court of Michigan.

Decided June 25, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and James M. Wouczyna, Assistant Prosecuting Attorney, for the people.

Kenneth A. Webb, for defendant.

M.S. COLEMAN, J.

FACTS

Defendant is appealing a denial of his motion to suppress evidence or quash the information. Pursuant to GCR 1963, 797 the judge certified that this case "involves a controlling question of law as to which there is substantial ground for difference of opinion". This Court granted defendant's emergency application for leave to appeal.

The case arises from an arrest made November 26, 1972. Two police officers, William Crawford and James Pickett, responded to a call that a man was firing "shots" at a given location. When they approached the address given, a man identified as defendant ran in front of the patrol car. He was carrying a pistol.

One officer ordered defendant to drop the pistol. Defendant hesitated but continued running towards a house. The officer pursued and pushed open the door to the house. Defendant ran into the bedroom and attempted to conceal the pistol under a mattress as the officer approached him.

The officer grabbed defendant's hand and disarmed him. Defendant then threw a metal box at the officer striking him in the face. Defendant ran into another room where he was subdued.

Defendant was arrested for assaulting the police officer. Officer William Crawford testified:

"We went into the living room and I searched him for further offensive weapons. He had nothing in any of his pockets except he had a large bulge in his right pocket, and I felt it and it appeared to have some bullets in there and I removed everything in that pocket and it turned out only to be a large quantity of money, some of it being counterfeit, and four bullets for a 9-millimeter gun and some heroin and a plastic vial, and inside the plastic vial there was 11 tinfoil packs."

The officer further testified that he could see the tinfoil packs through the clear plastic and stated that from his experience heroin is carried in this fashion.

Analysis of the seized material confirmed the presence of 3.24 grams of powder containing heroin. Defendant was charged with unlawfully possessing a controlled substance.

In the motion to suppress or quash, it was contended that the police were without authority to pursue defendant into the house and arrest him. Defendant contended that his resistance was justified. Even if the police could pursue, defendant argued that they could not search him but could only "pat him down" to determine if defendant possessed a weapon.

After extensive argument, the court denied the motion to quash. The judge felt "that under all of the totality of circumstances" the officer had probable cause to believe defendant had committed a felony. Furthermore, there was an unjustified assault and battery upon the officer which independently authorized the arrest and search.

ISSUES

1.

Was the defendant lawfully arrested?

2.

Is the heroin found by the arresting officers on defendant's person admissible into evidence as being the product of a valid search and seizure incident to a lawful arrest?

STATUTES

MCLA 764.15; MSA 28.874 provides, in part:

"Any peace officer may, without a warrant, arrest a person — (a) For the commission of any felony or misdemeanor committed in his presence".

MCLA 764.25; MSA 28.884 reads:

"Any person making an arrest shall take from the person arrested, all offensive weapons or incriminating articles which he may have about his person and must deliver them to the sheriff of the county, chief of police of the city or to the magistrate before whom he is taken."

Const 1963^[1]

Art 1, § 11 provides that a person has a right to be "secure from unreasonable searches and seizures".

DISCUSSION

1.

Confrontation

The officers were responding to a complaint that a man was firing "shots" in front of a house. As they approached the address, defendant ran in front of their car carrying a pistol. The officers ordered him to drop the weapon.

The action of the officers was justified and proper even if we go so far as to assume that probable cause to arrest defendant was lacking at that moment. The United States Supreme Court in Terry v Ohio, 392 U.S. 1; 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968) noted:

"[T]he need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." (p 24.)

In Terry the Court did not require the officer to be "absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger". (p 27.)

This Court in People v Whalen, 390 Mich. 672, 680; 213 NW2d 116 (1973) cited the following passage from Adams v Williams, 407 U.S. 143; 92 S. Ct. 1921; 32 L. Ed. 2d 612 (1972) as further explaining the holding in Terry:

"``In Terry this Court recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest". * * * The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. * * * A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. * * * '"

Under the facts of the instant case, it was proper for the officers to order defendant to drop the weapon. Failure to so order would have been imprudent, if not a dereliction of duty. There was nothing improper about this initial confrontation.

Pursuit

The police had authority to order defendant to stop and drop the pistol. When defendant refused and fled into a house, the police had authority to pursue defendant and enter the house.

In Warden v Hayden, 387 U.S. 294; 87 S. Ct. 1642; 18 L. Ed. 2d 782 (1967), the police were informed that a robber fleeing the scene of a crime had entered a certain house. The officers were permitted to enter the house and search the basement and two floors. They found incriminating evidence which was introduced at trial. The United States Supreme Court said at pp 298-299:

"We agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, ``the exigencies of the situation made that course imperative'. McDonald v United States, 335 U.S. 451, 456 [69 S. Ct. 191; 93 L. Ed. 153 (1948)]. * * * They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape."

The officers in this case were responding to a complaint that an individual was firing a gun. They saw defendant carrying a pistol. Defendant refused to drop the weapon when ordered. The officers had sufficient basis for concluding that defendant was dangerous. They had ample cause to take those measures necessary to insure that defendant did not cause injury to anyone.

The police had authority to stop defendant on the street and disarm him. The fact that defendant fled into the house does not negate that authority, but enhances it. The police were witness to conduct which further confirmed the need to take immediate action. The circumstances warranted the pursuit.^[2] The officers were justified in entering the house.

Events in the House

The officers had authority to confront defendant on the street and order him to drop the pistol. The officers had authority to pursue defendant and enter the house. For conduct which occurred in the house, defendant was arrested.

When the first officer entered the house, defendant ran into a bedroom. The officer saw him attempting to hide the pistol under a mattress. The officer disarmed defendant. In the struggle, defendant threw a metal box at the officer striking him in the face. Defendant left the bedroom and was apprehended in another room. He was then placed under arrest.

MCLA 764.15; MSA 28.874 permits an arrest without a warrant if there is commission of a misdemeanor in the presence of a peace officer. Defendant assaulted the officer when he threw the metal box. MCLA 750.81; MSA 28.276 provides that as a minimum one convicted of an assault is guilty of a misdemeanor. It is clear that defendant was lawfully arrested for assault.

2.

When defendant was arrested, the police acted to insure that he was totally disarmed. There was a large bulge in defendant's right pants pocket. There also appeared to be bullets in the pocket. The items were removed. There was a large quantity of money, 4 bullets and a clear plastic vial containing 11 tinfoil packets. It is this evidence which defendant wishes to have suppressed.

In any Fourth Amendment inquiry, the central issue is "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security". Terry, p 19. At some point the courts "must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances". Terry, p 21. A similar analysis is found in People v Eddington, 387 Mich. 551; 198 NW2d 297 (1972) at pp 564-565. The Court stressed the reasonableness of the search "in the light of all of the circumstances". They noted that "the exigencies of the situation" supported the search.

Sibron v New York, 392 U.S. 40; 88 S. Ct. 1889; 20 L. Ed. 2d 917 (1968) presented two cases questioning the reasonableness of a search and seizure. One conviction was reversed because the police had neither probable cause for arrest nor reasonable grounds to believe the suspect was armed. The other conviction was affirmed.

In affirming, the Court, Chief Justice Warren writing, noted that the officer had observed activity which indicated criminal conduct. The Court found it "difficult to conceive of stronger grounds for an arrest, short of actual eyewitness observation of criminal activity". (p 66.) When the officer apprehended one of the suspected burglars,

"he had the authority to search Peters, and the incident search was obviously justified ``by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime'. Preston v United States, 376 U.S. 364, 367 [84 S. Ct. 881; 11 L. Ed. 2d 777] (1964). Moreover, it was reasonably limited in scope by these purposes. Officer Lasky did not engage in an unrestrained and thoroughgoing examination of Peters and his personal effects. He seized him to cut short his flight, and he searched him primarily for weapons. While patting down his outer clothing, Officer Lasky discovered an object in his pocket which might have been used as a weapon. He seized it and discovered it to be a potential instrument of the crime of burglary." (p 67.)

The object seized was an "opaque plastic envelope, containing burglar's tools". (p 49.)

Further reasons supporting such a search as occurred in the instant case are listed in Chimel v California, 395 U.S. 752; 89 S. Ct. 2034; 23 L. Ed. 2d 685 (1969). The Court explored the antecedents of the theory approving a warrantless search incident to a lawful arrest. The Court said at 762-763:

"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area ``within his immediate control' — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence."

This language in Chimel had been anticipated by our Courts. In People v Ritholz, 359 Mich. 539, 551; 103 NW2d 481 (1960), the Court noted that the defendant had been properly arrested under MCLA 764.15; MSA 28.874:

"Such being the case it is clear, as we held in People v Harris, 300 Mich. 463, 465 [2 NW2d 464 (1942)] quoting People v Cona, 180 Mich. 641, 652 [147 N.W. 525 (1914)] that:

"``"The police have the power and it is also their duty to search the person of one lawfully arrested, and also the room or place in which he is arrested, and also any other place to which they can get lawful access, for articles that may be used in evidence to prove the charge on which he is arrested."'"

Although Chimel more strictly circumscribed the permissible area of search, both opinions recognized the duty of the police to search those they arrest.^[3]

The issue of warrantless searches incident to lawful arrest was reviewed by the United States Supreme Court in United States v Robinson, 414 U.S. 218; 94 S. Ct. 467; 38 L. Ed. 2d 427 (1973) and Gustafson v Florida, 414 U.S. 260; 94 S. Ct. 488; 38 L. Ed. 2d 456 (1973). In Robinson the defendant was placed under arrest for driving while his license was revoked. He was searched. In an inside pocket of his coat, the police discovered a cigarette package which they opened. In it they found capsules which analysis proved to contain heroin. Defendant was convicted for a drug offense. The heroin was admitted into evidence.

The Court undertook a detailed analysis of authority sanctioning warrantless searches incident to lawful arrests. The Court concluded as follows (p 235):

"A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest the full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ``reasonable' search under that Amendment."

The Court noted that the officer need not be placed in fear of the defendant or suspect that the defendant was armed as "it is the fact of custodial arrest which gives rise to the authority to search".

In Gustafson, the defendant was arrested for driving without carrying his license. He was searched and found to be in possession of marijuana. This was taken from a cigarette box inside defendant's coat pocket which was opened and found to contain marijuana. Defendant was convicted for unlawful possession of the marijuana. The Court said Robinson was controlling. The limitations which Terry placed "on protective searches conducted in an investigatory stop situation based on less than probable cause are not to be carried over to searches made incident to lawful custodial arrests".

Defendant relies upon Caver v Kropp, 306 F Supp 1329 (ED Mich, 1969) for support. That case was, in turn, based upon the holding in Colosimo v Perini, 415 F2d 804 (CA 6, 1969) which later was vacated by the United States Supreme Court, 399 U.S. 519; 90 S. Ct. 2233; 26 L. Ed. 2d 777 (1970). The Sixth Circuit at 432 F2d 1357 (1970) then reached a decision contrary to that of their initial Perini decision.

SUMMARY

1. Based on information received regarding the shooting at a certain location and the sighting of defendant there carrying a pistol, police were warranted in a belief that their safety and that of others was in danger. The police acted properly in ordering defendant to drop the weapon even though they did not have probable cause to arrest him.

2. The authority of the police to stop and disarm the defendant did not evaporate when defendant disobeyed their command and fled into his house. Such actions buttressed the conclusion that defendant was dangerous. The police had ample cause to enter the house and disarm defendant. The circumstances made such actions immediately necessary. Prompt action was required and such was taken.

3. Being properly inside the house, police could arrest defendant for a felony or misdemeanor committed in their presence. Defendant, by striking the officer, committed an assault. As a minimum, this is a misdemeanor. Defendant was properly and lawfully arrested.

4. It is unquestioned that defendant was subject to a warrantless search incident to the lawful arrest. In People v Tisi, 384 Mich. 214; 180 NW2d 801 (1970), the Court said at p 219:

"The reasonableness of any search or seizure must be determined as of the time of the search or seizure. In the determination of reasonableness, consideration may be given to the information possessed by the officer. People v Harper (1962), 365 Mich. 494 [113 NW2d 808]."

The search is to be tested "in the light of the information or facts possessed by the officer at the time he made the search". People v Danny Williams, 383 Mich. 549, 556; 177 NW2d 151 (1970).

The police had received a report of an individual firing "shots". They saw defendant carrying what looked to be and was a pistol and ordered defendant to drop the gun. Defendant refused to drop the weapon when ordered and fled from the officers. The officers properly followed him into a house where he tried to hide the weapon but was disarmed. Defendant struck an officer with a metal box. Defendant was lawfully arrested.^[4] All these facts justify the body search. It was reasonable and proper. The entire range of search and seizure cases speak to the "reasonableness" of the procedures. In the context of this series of events, the officers' acts were reasonable.

The denial of defendant's motion to quash is affirmed.

SWAINSON, LEVIN, and J.W. FITZGERALD, JJ., concurred with M.S. COLEMAN, J.

T.M. KAVANAGH, C.J., and T.G. KAVANAGH and WILLIAMS, JJ., concurred in the result of the opinion by M.S. COLEMAN, J.

NOTES

[1] Also US Const, Am IV.

[2] It further appears that the police had witnessed criminal conduct. Defendant was seen carrying a pistol. Section 66-1-7 of the Code of the City of Detroit says with certain exceptions that no person "shall draw, handle or flourish a revolver, pistol or other gun in any public street". Section 66-4-2 makes it unlawful "to carry a firearm on any public street or in any public place unless it is unloaded and in a case". Also see MCLA 752.a863; MSA 28.436(24) making it a misdemeanor to "recklessly or heedlessly or wilfully or wantonly use, carry, handle or discharge any firearm without due caution and circumspection for the rights, safety or property of others".

[3] Also see People v Zeigler, 358 Mich. 355; 100 NW2d 456 (1960), People v Gonzales, 356 Mich. 247; 97 NW2d 16 (1959), People v Bommarito, 309 Mich. 139; 14 NW2d 812 (1944), People v Orlando, 305 Mich. 686; 9 NW2d 893 (1943), and People v Licavoli, 245 Mich. 202; 222 NW2d 102 (1928).

[4] Going even further than the facts of this case necessitate, see People v Kuntze, 371 Mich. 419; 124 NW2d 269 (1963) which was recently reaffirmed in People v Whalen, supra. The Court in Kuntze said at 423-424:

"Aside from those cases in which legality of seizure of evidence depends solely upon the reasonableness of a search without a warrant made incidental to a valid arrest, a prior valid arrest is not essential to a police officer's right to search and seize. Like most State and Federal courts, we have previously held that the validity of a search and seizure made without a warrant does not depend upon a prior valid arrest. People v Kamhout, 227 Mich. 172 [198 N.W. 831 (1924)]; People v Bringardner, 233 Mich. 449 [206 N.W. 988 (1926)]; People v Dungey, 235 Mich. 144 [209 N.W. 57 (1926)]; People v Alicki, 321 Mich. 701 [33 NW2d 124 (1948)]. See, also, Carroll v United States (1925), 267 U.S. 132, 158 (45 S. Ct. 280, 69 L. Ed. 543, 39 A.L.R. 790), and annotation at 89 ALR2d 715, ``Lawfulness of nonconsensual search and seizure without warrant, prior to arrest.'"

The Court said the legal propriety of a search and seizure subsequent to a lawful stop "depends upon the information the officers then possessed and subsequently learned immediately before" the seizure (pp 424-425). Also see People v Gonzales, supra.