People v. Crawl

401 Mich. 1 (1977) 257 N.W.2d 86

PEOPLE
v.
CRAWL

Docket No. 56294, (Calendar No. 7).

Supreme Court of Michigan.

Argued January 5, 1977. Decided August 29, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Research, Training & Appeals, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.

State Appellate Defender Office (by Chari Grove; Steven L. Schwartz, of counsel) for defendant.

COLEMAN, J. (reversing in part, affirming in part).

Because this case was administratively held in abeyance pending the decision in People v Carter, 395 Mich. 434; 236 NW2d 500 (1975), I concur in the result reached by Justice LEVIN in part I of his opinion. The defendant's case should be remanded to the trial court for entry of a judgment of conviction for second-degree murder and for resentencing.^[1]

I cannot agree with Justice LEVIN that Sergeant Ewald's cursory search of the bedroom during a potentially life-endangering situation while the occupants of the apartment were not yet under police control was unjustified or illegal. He acted reasonably to protect the lives of his fellow officers.

I

At approximately 9 p.m. on May 11, 1971, Detective Sergeants Edward Ewald and Lawrence Kelly of the Detroit police department received a radio message directing them to investigate a robbery and shooting at a Detroit bar. They arrived at the bar at approximately 9:15 p.m. There they were told that sometime between 8:30 p.m. and 8:50 p.m. two men armed with handguns had robbed the bar and killed the bartender. One of the handguns used in the crime had already been recovered. They were also told that one of the robbers had been wounded, captured and taken to Detroit General Hospital.

At approximately 11:30 p.m. Ewald and Kelly went to the hospital and spoke with the wounded robber. He told them that the other robber's name was Claude Crawl and that Crawl was the one who had shot the bartender. He gave them a rough description of Crawl and the address of an apartment in Highland Park where Crawl could be found. He also said a third man was involved in the robbery, but he did not name or describe the man or say where the man could be found.

Ewald and Kelly left the hospital and radioed the Highland Park police department for assistance. Soon a Highland Park scout car with three uniformed officers joined them and the group drove towards the Highland Park address where Crawl was said to be. They arrived at the address shortly after midnight.

The address was a two-story apartment building. The wounded robber had said Crawl would be in apartment 204. The Highland Park officers warned Ewald and Kelly that there had been trouble, including shootings, at this apartment building in the past. One Highland Park officer drove the scout car into an alley behind the building and remained with the car. Ewald, Kelly and the remaining Highland Park officers approached the building's front entrance. They pinpointed the location of apartment 204. Ewald positioned himself in an alcove from which he could observe the apartment's windows and the front of the building. Kelly and the two officers continued upstairs to the apartment.

When Kelly and the two officers reached the apartment, Kelly knocked on the door. One of the occupants of the apartment opened the door and admitted the three policemen into a small hallway. Straight ahead the hallway led to the living room and kitchen. Three steps from the door on the left side of the hallway was the entrance to a small bedroom. The occupants were scurrying all through the apartment. The three policemen ran through the apartment looking for Crawl and trying to bring the occupants under control.

Meanwhile, Ewald observed from his position downstairs a man climb out one of the apartment's windows and jump to the ground. Ewald shouted for the man to halt and identified himself as a police officer. The man walked a few steps and then halted. Ewald determined that the man was Claude Crawl, placed him under arrest and ordered him back to the apartment.

Approximately two minutes after Kelly and the two officers were admitted to the apartment, Ewald and Crawl appeared at the door. The door was open and Ewald directed Crawl, who was now handcuffed, inside. Ewald turned Crawl over to the control of one of the officers. Another man and two women were in the living room. They were milling or running around. There was much confusion. Kelly and the other officer were trying to persuade the occupants to sit down and stay still. At this point, Ewald looked in the bedroom. No one was there. Ewald then looked under or on the bed and saw a small black barber's case.^[2] He opened the unlocked case and found a chrome plated handgun, live and spent shells, barber's tools and identification cards belonging to Crawl. Ewald did not look anywhere else in the bedroom. He seized the case and its contents, and took these items to police headquarters along with Crawl and the three occupants, who had been arrested on narcotics charges. Crawl was charged with first-degree murder after confessing to the crime.

Before trial, Crawl filed a motion to suppress the items seized at the apartment. After an evidentiary hearing, the motion was denied. The items were admitted into evidence against Crawl at his trial. Several witnesses identified the gun as looking like one of the guns used in the robbery. A ballistics expert testified that tests run on the gun and bullets found at the scene of the robbery showed that the gun was used in the robbery. Crawl testified that he was a barber. The identification cards found with the gun were Crawl's.

II

Justice LEVIN contends that at the point Sergeant Ewald entered the bedroom there was no justification for seizing and opening the barber's case. He says that "there was no danger that anyone in the apartment could grab the bag and * * * make use of any weapon contained in the bag". I respectfully disagree.

When Sergeant Ewald captured Crawl outside the apartment, he was not thereby prohibited from returning to the apartment to assist his fellow officers. When he entered the apartment, about two minutes after the raid began, the situation was not under police control. An unidentified man and two women were milling or running around the living room of this small apartment. There was a great deal of confusion. The man could have been the third robber. The other handgun used in the crime was not accounted for. The officers had every reason to believe they were in a life-endangering situation. There had been trouble, including shootings, at this apartment building in the past. It was dark and late at night. They were looking for a murderer and an accomplice who might well be prepared to kill again.

Under these circumstances, I cannot say that Sergeant Ewald's cursory search was unreasonable or illegal. The lack of police control and the dangerousness of the situation justified his proceeding without first obtaining a search warrant. To have delayed would have needlessly endangered the lives of his fellow officers.

Justice LEVIN relies heavily upon Chimel v California, 395 U.S. 752; 89 S. Ct. 2034; 23 L. Ed. 2d 685 (1969), and United States v Chadwick, 433 U.S. 1; 97 S. Ct. 2476; 53 L. Ed. 2d 538 (1977), to support his conclusion that the search in this case was illegal. The limits on the scope of warrantless searches established by these cases do not come into play until arrests have been made and the police are in control of the situation.

In Chimel, three policemen were admitted to the defendant's home by the defendant's wife and waited for the defendant to return from work. When he arrived, the police arrested him for burglary of a coin shop. Then, accompanied by the defendant's wife, the police conducted a detailed 45-minute search of every room in the house. In Chadwick, federal officers seized a double-locked footlocker they suspected to contain marijuana. The footlocker was transported to a Federal police building where it was locked in an evidence storage room. A few hours later, at their convenience, the officers opened and searched the footlocker.

Neither Chimel nor Chadwick involved uncontrolled and potentially life-endangering situations like the situation in the case at bar. Also, the searches in those cases were much more intrusive than the quick, protective search undertaken here. Thus, I do not find either of these cases to be controlling or convincing precedents.

The case at bar is much more like Warden, Maryland Penitentiary v Hayden, 387 U.S. 294; 87 S. Ct. 1642; 18 L. Ed. 2d 782 (1967). There the police were told that an armed robber had just entered a certain address. The police went to the address, a two-story house, and knocked on the door. A woman answered the door and admitted the police. The police knew the robber was armed, but they did not know where in the house he was. They immediately fanned out through the house looking for the robber and for weapons. In the course of the next few minutes, one policeman found the robber in an upstairs bedroom and arrested him. Ammunition for a handgun and a cap worn by the robber during the robbery were found underneath the mattress of the robber's bed and ammunition for a shotgun was found in a bureau drawer. A sawed-off shotgun and a handgun were found on the main floor inside a toilet flush tank and clothing worn by the robber during the robbery was found in the basement inside a washing machine. The United States Supreme Court upheld the search for and seizure of all these items, saying:

"They [the police] acted reasonably when they entered the house and began to search for a man * * * 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 [the robber] 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." Warden v Hayden, supra, 298-299. (Emphasis added.)

In the case at bar, although the police knew where Crawl was and had already arrested him, three other persons, one of whom could have been the third participant in the robbery and murder, were milling or running around the small apartment. The situation was not under control. The police had every reason to believe that their lives were in danger. Sergeant Ewald's cursory search, limited to the discovery and opening of the barber's case (a logical place to hide a small handgun), was a minor intrusion into the defendant's privacy necessary to insure that the police had control of the other handgun used in the robbery so that it could not be used against them by one of the three persons not yet under police control or arrest.

Justice LEVIN suggests that the police had other alternative courses of action that could have insured their safety just as well. Upon leisurely reflection, that may or may not seem true. However, we must remember that a police officer acting in a crisis situation does not enjoy the luxury of calm contemplation and collegial discussions before he or she must make on-the-scene decisions that may mean the difference between life and death.

Obviously, a line must be drawn somewhere. The sanctity of the home is an important value that must be protected. In drawing a line, however, other values must be weighed in the balance. The value of protecting police officers' lives and of bringing a dangerous felon to the bar of justice are two that come to mind. These values must be carefully weighed according to the circumstances of each case.

Here, the search was quite limited in scope and it occurred contemporaneously with an ongoing situation potentially dangerous to the officers' lives. The officers did not know what they would be facing when they entered the apartment. Sergeant Ewald only looked in one very logical place, the barber's case laying on the bed, to find the missing handgun. The handgun and shells used in the crime were, in fact, in the case. He well could have judged that the security of all depended on finding and seizing the gun. In his place, I believe that my reaction would have been the same.

Sergeant Ewald acted reasonably under exigent circumstances. I would not draw the line as finely or as narrowly as Justice Levin has done today. Neither legal precedent nor moral values nor the need for a lesson to the police in self-restraint require a complete reversal of the defendant's conviction on the basis of this search and seizure.

None of the other issues raised by the defendant warrant a complete reversal and the granting of a new trial. However, because his case was held in abeyance for the decision in People v Carter, supra, on the procedural issue of whether instructions on second degree murder must be given in felony murder cases, and because he requested such instructions at trial, he should receive the benefit of the Carter decision. Therefore, I would remand to the trial court for resentencing on a conviction of second-degree murder, or, upon the motion of the prosecutor for a new trial on the original charge of first-degree murder.

RYAN, J., concurred with COLEMAN, J.

WILLIAMS, J. (concurring in part; dissenting in part).

I concur in the view that, under People v Carter, 395 Mich. 434; 236 NW2d 500 (1975), this case should be remanded to the trial court for entry of a judgment of conviction of second-degree murder and for resentencing accordingly, with the option in the prosecutor, if the ends of justice would be better served and upon notification of the trial court before resentencing, to have the judgment and conviction vacated and defendant retried for first-degree murder. (See the opinion of LEVIN, J., footnote 2.) I concur that the search of the bedroom and the seizure of the gun were not violative of the law.

Although I find Justice LEVIN'S analysis of the present law of search and seizure both complete and accurate, my analysis of the facts is different from his and closer to that of Justice COLEMAN.

Justice LEVIN states (at page 24 of his opinion) that:

"While warrantless ``protective' searches may be justified when ``reasonably * * * necessary to prevent the dangers that [a] suspect at large in the house may resist or escape', Warden, Maryland Penitentiary v Hayden, 387 U.S. 294, 299; 87 S. Ct. 1642; 18 L. Ed. 2d 782 (1967), once all persons occupying the residence are under supervision and control and there is no reason to believe that anyone else is present, the rationale for a ``protective' search no longer obtains and a further search may not be conducted." (Emphasis added.)

As I understand the record, "all persons occupying the residence" were not "under supervision and control" when Sergeant Ewald found the gun, and he had reason to so believe. Sergeant Ewald testified that on entering the apartment "I set Mr. Crawl down and one of the officers stayed with him and we looked around the rest of the apartment to see if there [were] any other people there". He testified that when he entered "[t]hey were milling all over the place and the officers were trying to get them to sit down and stand still". Officer Kelly corroborated this, saying on admittance "people started scurrying all over the apartment * * * they were scurrying in the bedrooms, kitchen and et cetera, and then Sergeant Ewald returned a minute or two after we had entered the apartment with * * * Claude Crawl in custody."^[1]

In short, under these circumstances of "milling all over the place" and the close proximity of the rooms, especially at night in search of murderers and in a building where "they have had trouble * * * shootings, that sort of thing", I find that a "protective" search was justified and reasonably necessary for self-protection and the safety of the other officers.

All other issues raised on appeal are without merit.

Conviction of first-degree murder reversed with remand for entry of a judgment of conviction of second-degree murder, reserving the option in the prosecutor to have the judgment and conviction vacated and to re-try defendant for first-degree murder.

BLAIR MOODY, JR., J., concurred with WILLIAMS, J.

LEVIN, J.

Claude Crawl was convicted of first-degree murder^[1] for the killing of a bartender during a robbery of a Detroit bar. The Court of Appeals affirmed. 47 Mich. App. 749; 209 NW2d 809 (1973).

We conclude that there was error in refusing to instruct on second-degree murder and in allowing introduction of evidence obtained during an impermissible search and seizure.

If the only error was a failure to instruct on second-degree murder, Crawl's conviction could be affirmed as second-degree murder with remand for resentencing unless the prosecutor opts for a new trial on first-degree murder. Since there is other error which affects the validity of a conviction of second-degree murder, Crawl is entitled to a new trial.

Evidence seized from a barber bag in an apartment was introduced at trial over objection. Assuming it was lawful, following Crawl's arrest outside the apartment, to conduct a "protective" search of the apartment, the warrantless search of the barber bag discovered in that search and the seizure of its contents were not within any of the narrowly circumscribed exceptions to the warrant requirement of Const 1963, art 1, § 11 and the Fourth Amendment. The arresting officer had determined that no one was in the bedroom who might destroy evidence or use a weapon that might be contained in the bag. The evidence seized (a revolver and shells) was not in plain view as the officer searched for a suspect in the bedroom. There were no circumstances, exigent or otherwise, justifying the warrantless search of the bag and the seizure of its contents.

I

In People v Carter, 395 Mich. 434, 437; 236 NW2d 500 (1975), this Court held "that there are lesser included offenses to first-degree felony-murder. Second-degree murder is always a lesser included offense of first-degree murder". In the companion case of People v Jenkins, 395 Mich. 440, 442-443; 236 NW2d 503 (1975), this Court declared that: "in every trial for first-degree murder, including felony murder, the trial court is required to instruct the jury sua sponte, and even over objection, on the lesser included offense of second-degree murder" but added that "[t]his decision shall apply to this case and to all cases tried after January 1, 1976".

In a number of subsequent decisions, this Court, pursuant to Carter, modified pre-Carter, pre-Jenkins convictions of first-degree felony-murder, where the issue was preserved at the trial level by objection or request to charge on second-degree murder, by reducing the degree of conviction from first- to second-degree murder and remanding for resentencing with an option in the prosecuting attorney, if he is "persuaded that the ends of justice would better be served, upon notification to the trial court before resentencing", to have the judgment and conviction vacated and a new trial for first-degree murder.^[2]

In this case, the judge refused defense counsel's "request that your Honor charge second-degree murder". The judge's ruling was erroneous. People v Carter, supra.

II

Two men^[3] robbed a Detroit bar at approximately 8:30 p.m. on May 11, 1971. The bartender was fatally shot when he offered resistance. Howard Wilson, one of the robbers, was wounded in the shootout and taken to a hospital. He informed the police, about 45 minutes after the robbery, that Crawl and another man participated in the robbery and that Crawl could be found at his cousin's apartment.

The police arrived at the apartment building shortly after midnight. Officer Edward Ewald remained outside the building while Officer Larry Kelly and two or three other officers entered the building and proceeded to the apartment. Ewald, standing outside, saw Crawl flee through a window and arrested him after he descended.

Ewald took Crawl into the building and up to the apartment, assertedly because Ewald was still looking for a third suspect; according to Ewald, "[i]t was an assumption that he could be there, too".

As Ewald was arresting Crawl, Kelly and the other officers went to the apartment, "knocked on the door and we were admitted". The two women and one man who were present "started running around the apartment at that time".

When Ewald and Crawl entered the apartment, the three other occupants were still "milling all over the place and the officers were trying to get them to sit down and stand still", but all three were "[i]n the living room at the time". Crawl was handcuffed and turned over to another officer. Ewald entered a bedroom located about three steps from the living room.

Conceding that Crawl and the three other persons were in the living room when Ewald entered the bedroom, the people argue that Ewald was justified in entering the bedroom because Wilson had told the officers that he and two other persons had been involved in the robbery and a search was necessary to determine whether the third robber was in the apartment.

Ewald testified on direct examination that he walked into the bedroom and found a barber bag or small brief case under the bed; on cross-examination he testified that the bag was on the bed. Ewald opened the bag and found and seized evidence, including a revolver and spent shells, tending to connect Crawl with the robbery.^[4] Crawl and the three other persons, who were arrested on narcotics charges, were then taken to police headquarters for questioning.

We would hold that Ewald was not justified in searching the barber bag and that the evidence seized was inadmissible.

"The primacy of the warrant requirement is well established." People v Tyler, 399 Mich. 564, 571; 250 NW2d 467 (1977); United States v Chadwick, 433 U.S. 1; 97 S. Ct. 2476; 53 L. Ed. 2d 538 (1977).^[5] "[T]he most basic constitutional rule in this area is that ``searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.' The exceptions are ``jealously and carefully drawn.'" Coolidge v New Hampshire, 403 U.S. 443, 454-455; 91 S. Ct. 2022; 29 L. Ed. 2d 564 (1971). Similarly, see People v Reed, 393 Mich. 342, 362; 224 NW2d 867 (1975).

None of the recognized exceptions to the warrant requirement justified the search of the barber bag.

Although a warrantless search may be conducted incident to a lawful arrest, an arrest made outside the arrestee's residence does not justify a subsequent search of the residence. Vale v Louisiana, 399 U.S. 30; 90 S. Ct. 1969; 26 L. Ed. 2d 409 (1970).^[6] The search of the bag was not an incident of Crawl's arrest.

Nor was the search an incident of the arrest of the other persons in the apartment. At the time of their arrest, no arrestee was in the bedroom and, therefore, the search was not in "the area from within which [the arrestee] might gain possession of a weapon or destructible evidence." "The search here went far beyond the petitioner's person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area." Chimel v California, 395 U.S. 752, 763, 768; 89 S. Ct. 2034; 23 L. Ed. 2d 685 (1969).

An arrest in a residence does not justify a general search of the residence. There is no justification "for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in the room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant." Chimel, supra, p 763.

We acknowledge that if the police officers had reason to believe that the other robber was in the apartment and might escape, endanger the officers or destroy evidence, they would have been justified in entering the bedroom to avoid those dangers.^[7] Assuming then that Officer Ewald was justified in entering the bedroom,^[8] once he determined that no one was in the bedroom^[9] there was no justification for opening the bag. All four occupants (Crawl and the other three persons) were in the living room; there was no danger that anyone in the apartment could grab the bag and destroy it or any evidence in it or make use of any weapon contained in the bag. When the officers left the apartment, all four occupants were taken to police headquarters.

While warrantless "protective" searches may be justified when "reasonably * * * necessary to prevent the dangers that [a] suspect at large in the house may resist or escape", Warden, Maryland Penitentiary v Hayden, 387 U.S. 294, 299; 87 S. Ct. 1642; 18 L. Ed. 2d 782 (1967), once all persons occupying the residence are under supervision and control and there is no reason to believe that anyone else is present, the rationale for a "protective" search^[10] no longer obtains and a further search may not be conducted.

The warrantless search of the bag was not permitted under the "plain view" doctrine, whether the bag was under or on the bed. This doctrine permits warrantless searches and seizures where law enforcement officers come upon contraband, criminal activity or criminal evidence^[11] which is in "plain view" of officers who are where they have a right to be when they see the evidence. Stanley v Georgia, 394 U.S. 557; 89 S. Ct. 1243; 22 L. Ed. 2d 542 (1969) (Stewart, J.).^[12] A search and seizure are justified "only where it is immediately apparent to the police that they have evidence before them; the ``plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges". (Emphasis supplied.) Coolidge v New Hampshire, supra, p 466. The doctrine "will not justify seizure of the object where the incriminating nature of the object is not apparent from the ``plain view' of the object."^[13] Exploratory and general searches to find evidence of crime are unconstitutional. United States v Lefkowitz, 285 U.S. 452, 466-467; 52 S. Ct. 420; 76 L. Ed. 877 (1932).^[14] To fall within the plain view doctrine, the discovery of evidence "must be inadvertent." Coolidge v New Hampshire, supra, p 469.

The contents of the barber bag, under or on the bed, were not in "plain view" of Officer Ewald when he surveyed the bedroom to determine whether the other robber was present; there was nothing "inadvertent" about his opening the bag and discovering and seizing the contents.^[15]

In United States v Chadwick, supra, p 15, the United States Supreme Court, in holding that a double-locked foot locker which had been loaded in the trunk of an automobile could not be seized without a warrant under either the "automobile exception"^[16] or as a search incident to an arrest, declared: "Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest".^[17]

On analogous facts, New York's intermediate appellate court suppressed evidence obtained upon a search of a dresser drawer and a suitcase in a closet. The defendant had been arrested on the street for possession of heroin. He told the arresting officers that the "people you want are up in my apartment". The Court held that, although the warrantless entry of the apartment and seizure of a shotgun in plain view in a room full of people were lawful, the search of the dresser drawer and suitcase was unlawful:

"The thorough search of the room, and the seizure therein of a pistol from a dresser drawer and of drugs and drug paraphernalia from a suitcase in a closet, after all persons had been cleared from the room, was impermissible (cf. People v Floyd, 26 NY2d 558, 563; 312 NYS2d 193, 195-196; 260 NE2d 815, 817 [1970]). There was no reason to fear an assault by a person with a weapon within reach, i.e., in the dresser, since there was no one in the room. Even though the officer could legally look into the closet to assure himself that no one who might harm him was hiding there, he had no right to open and examine the suitcase he found therein. Any weapons which might have been contained in the suitcase were certainly out of reach of the persons in the next room." People v Thompson, 50 App Div 2d 874, 875; 377 NYS2d 149, 151-152 (1975).

The warrant requirement embodies the fundamental precept that a search must be preceded by a neutral and objective determination of probable cause and of the proper scope of the search, "[B]ypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment violations ``only in the discretion of the police.'" Katz v United States, 389 U.S. 347, 358-359; 88 S. Ct. 507; 19 L. Ed. 2d 576 (1967) (emphasis by the Court).

The exceptions to the warrant requirement are narrowly circumscribed and are available only where exigent circumstances (e.g., the need to protect arresting officers, the likelihood of destruction of evidence or of escape) require immediate action, precluding a neutral determination of probable cause or of the scope of the search; "[t]here being no exigency, it was unreasonable for the Government to conduct this search without the safeguards a judicial warrant provides". United States v Chadwick, supra, p 11.

Having determined that no one was in the the bedroom who might destroy evidence or endanger the safety of the officers, the officers had no justification for opening the bag and seizing its contents. If upon sight of the bag there was reason to believe it contained evidence, the officers, after taking Crawl and the others into custody, should have sought a warrant to conduct a search. They could have done so without fear for their safety, or that anyone in the apartment would destroy evidence.

"We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. * * * And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home.'" McDonald v United States, 335 U.S. 451, 455-456; 69 S. Ct. 191; 93 L. Ed. 153 (1948).^[18]

The evidence seized was inadmissible. The error was not harmless.^[19]

III

While Crawl sought, before and at the trial, to suppress the evidence found in the barber bag, his assigned appellate counsel did not brief the search and seizure question in the Court of Appeals. Crawl's application for leave to appeal to this Court raised this question but the people's answer did not respond on search and seizure and did not direct our attention to the failure of Crawl's appellate counsel to raise the question in the Court of Appeals.

Ordinarily we will not consider an issue that has not been preserved at the trial level and presented to the Court of Appeals.

Requiring preservation of error at the trial level provides the trial judge an opportunity to rule correctly and to avoid unnecessary retrials, and also provides a record for appellate review. In this case, the search and seizure issue was preserved before and at the trial, an evidentiary record was developed and the trial court had an opportunity to suppress the evidence. The need for a new trial is not attributable to Crawl's failure to raise the issue, but, rather, to the people's proffer of inadmissible evidence and incorrect rulings by the trial court.

The rule requiring that appellate issues first be presented to the Court of Appeals seeks to lighten this Court's burden of decision by disposing of issues at the intermediate appellate level and by providing this Court with the benefit of the analysis and judgment of the Court of Appeals.

The failure of Crawl's appellate counsel to raise the search and seizure issue on appeal was a serious mistake. Appellate courts have considered claims based on the introduction of illegally seized evidence even where the issue was not preserved at the trial level where it appears there may be a different result at a new trial at which the evidence is not introduced.^[20]

For the same reasons that the failure of the trial judge to suppress this evidence was not harmless error,^[21] it cannot be said that a new trial should not be granted because Crawl would inevitably be convicted of first-degree murder at a trial in which the evidence is suppressed.^[22]

It would be disproportionate to regard the failure to raise this issue in the Court of Appeals as a waiver, and not to treat as a waiver of that failure the prosecutor's failure to call our attention to it. The rule requiring presentation of appellate issues first to the Court of Appeals is of no greater dignity than the constitutional prohibition of unreasonable searches and seizures. If an accused person's right to protection against impermissible searches and seizures can be waived by the carelessness or ineptitude of counsel, then, by like principle, the rule requiring that appellate issues be presented first to the Court of Appeals can be waived by the prosecutor's failure timely to call our attention to noncompliance with this rule.

Compliance with the rule requiring presentation of appellate issues first to the Court of Appeals is of great importance to this Court. Accordingly, we could remand the cause to the Court of Appeals for consideration of the search and seizure issue. Under the circumstances that we granted leave to appeal on all issues raised in the application for leave to appeal and, accordingly, should consider such issues, and that the search and seizure issue has been fully briefed, argued and considered at conference, we have chosen to consider and decide that pervasive issue.

IV

Crawl also contends it was error to permit the prosecutor to show that Howard Wilson, an important witness for the prosecution, had admitted his participation in the robbery-killing by pleading guilty to murdering the bartender, and had been sentenced.^[23]

As a long-established rule of the common law, an accomplice's plea of guilty^[24] or conviction following a trial^[25] is not admissible against another person.^[26]

On cross-examination, Wilson was asked about his statements to the police shortly after the robbery; the purport of the questioning was that Wilson made the statements in the hope of obtaining leniency. On redirect, Wilson was asked whether he had pled guilty and been sentenced; the people contend that these questions were responsive to the cross-examination and were asked to rebut the intimation that Wilson's testimony was motivated by self-interest.

While the cross-examination was limited to the time sequence shortly after the robbery, the tendency of the questions was not simply that Wilson had a personal motive for assisting the police but also that he had a personal motive for testifying against Crawl.

In these circumstances, the prosecutor was entitled to attempt to rebut the implication that Wilson's testimony was motivated by self-interest with evidence showing the nature of the concessions made to him.

Such disclosure should, however, be full and complete to avoid misleading the jury.^[27] The disclosure here was far from adequate. The complete redirect examination was:

"Q. You have pled guilty to this matter already?

"A. Yes.

"Q. You are under sentence?

"A. Yes."

While Wilson had pled guilty "in this matter" and had been sentenced, he was allowed to plead guilty to a less serious offense than Crawl was then on trial for. Wilson had received a relatively light sentence in comparison to the sentence which Crawl faced on conviction of first-degree murder. Wilson, who admitted his participation in the robbery-killing, and, accordingly, faced conviction of first-degree murder and a mandatory sentence of life in prison without possibility of parole, was permitted to plead guilty to second-degree murder and was sentenced to serve a term of 5 to 15 years, which made him eligible for parole in approximately 3-1/2 years. Wilson was paroled in 1974, about 3 years after the crime was committed.

The implication of the redirect questioning, that Wilson had not benefited and would not benefit from his testimony and had no personal motivation to testify falsely, was misleading.

While Wilson had been sentenced, he was still subject to the jurisdiction of the parole board and whether he served a minimum or greater sentence depended in part on whether the authorities were of the opinion that he had been "rehabilitated". A person in his position might reasonably conclude that his chances of an early parole were greater if he continued to cooperate with the authorities by testifying against Crawl.

While the prosecutor was entitled to inform the jury of Wilson's true status, the jury should have been fully and accurately informed^[28] of all the pertinent facts and circumstances so that it could properly assess whether his testimony may have been motivated by self-interest.

V

Crawl also contends that a confession introduced at the trial was involuntary because it was induced by a beating, promises of leniency and threats, including a threat to use ballistics tests on the revolver seized from the barber bag to implicate him in the robbery-killing.

Following a Walker hearing held after the trial had begun, and after it had been decided that the evidence obtained from the barber bag had not been unlawfully seized, the judge ruled that the confession was voluntary.

Crawl's testimony that the police threatened to use the gun to tie him to the robbery was uncontradicted. If the confession was obtained as a fruit of the unlawful search and seizure, it must be suppressed.^[29]

We would (see part II, supra) reverse the trial court on the search and seizure issue and remand for a new trial. Before such a new trial, the question whether the confession was a fruit of the unlawfully seized evidence should be reconsidered at an evidentiary hearing.

The other issues are without merit or not likely to arise at a new trial.

KAVANAGH, C.J., and FITZGERALD, J., concurred with LEVIN, J.

NOTES

[1] Justice LEVIN'S opinion is dicta to the extent that it attempts to decide whether the holding in People v Carter is to be retroactively applied to cases preceding Carter that were not held in abeyance for the decision in that case. It should also be noted that none of the cases cited by Justice LEVIN in footnote 2 of his opinion discussed whether Carter should be retroactively applied to nonabeyance cases. All of the cited cases were decided by peremptory orders and therefore should not be interpreted as controlling precedents on the issue of Carter's retroactivity. The question of the extent of Carter's retroactivity is still open.

[2] Ewald originally said he saw the case "under" the bed, but thereafter consistently testified that he saw it lying on top of the bed when he looked in the bedroom.

[1] Officer Kelly later testified "Well, we had everybody calmed down a gun was found by Sergeant Ewald in the bedroom where the people had ran * * *". From this testimony, it is difficult to ascertain the exact sequence of events, but a complete reading of the testimony leads to the conclusion that the nature of the situation as a whole, in light of the proximity of the rooms, was one of confusion and danger at the time Sergeant Ewald left in search and at the time of locating the gun.

[1] MCLA 750.316; MSA 28.548.

[2] People v Dancer, 396 Mich. 802; 238 NW2d 29 (1976); People v Livingston, 396 Mich. 818; 238 NW2d 360 (1976); People v Bills, 396 Mich. 819; 238 NW2d 803 (1976); People v Dates, 396 Mich. 820; 238 NW2d 360 (1976); People v Archie Smith, 396 Mich. 825; 238 NW2d 536 (1976); People v Aaron, 396 Mich. 843; 239 NW2d 602 (1976); People v Watson, 396 Mich. 870 (1976); People v Delvin Jones, 397 Mich. 871 (1976); cf. People v Herbert Smith, 396 Mich. 362; 240 NW2d 245 (1976).

[3] A third man, never apprehended, allegedly waited in a getaway car.

[4] The bag contained barber tools, a .38-caliber revolver, two live shells, four spent shells and a holster.

[5] "The judicial warrant has a significant role to play in that it provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ``engaged in the often competitive enterprise of ferreting out crime.' Johnson v United States, 333 U.S. 10, 14 [68 S. Ct. 367; 92 L. Ed. 436] (1948). Once a lawful search has begun it is also far more likely that it will not exceed proper bounds when it is done pursuant to a judicial authorization ``particularly describing the place to be searched and the persons or things to be seized.' Further, a warrant assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search. Camara v Municipal Court, 387 U.S. 523, 532 [87 S. Ct. 1727; 18 L. Ed. 2d 930] (1967)." United States v Chadwick, 433 U.S. 1; 97 S. Ct. 2476; 53 L. Ed. 2d 538 (1977).

[6] The Court said:

"A search may be incident to an arrest ``"only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest."' Shipley v California, 395 U.S. 818, 819 [89 S. Ct. 2053; 23 L. Ed. 2d 732 (1969)]; Stoner v California, 376 U.S. 483, 486 [84 S. Ct. 889; 11 L. Ed. 2d 856 (1964)]. If a search of a house is to be upheld as incident to an arrest, that arrest must take place inside the house, cf. Agnello v United States, 269 U.S. 20, 32 [46 S. Ct. 4; 70 L. Ed. 145; 51 A.L.R. 409 (1925)], not somewhere outside — whether two blocks away, James v Louisiana, 382 U.S. 36 [86 S. Ct. 151; 15 L. Ed. 2d 30 (1965)], twenty feet away, Shipley v California, supra, or on the sidewalk near the front steps. ``Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant.' Agnello v United States, supra, at 33. That basic rule ``has never been questioned in this Court.' Stoner v California, supra, at 487, fn 5." (Emphasis by the Court.) Vale v Louisiana, 399 U.S. 30, 33-34; 90 S. Ct. 1969; 26 L. Ed. 2d 409 (1970).

[7] See Warden v Hayden, 387 U.S. 294, 299; 87 S. Ct. 1642; 18 L. Ed. 2d 782 (1967); People v Block, 6 Cal 3d 239; 103 Cal Rptr 281; 499 P2d 961 (1971); United States v Broomfield, 336 F Supp 179 (ED Mich, 1972). Compare People v Olajos, 397 Mich. 629; 246 NW2d 828 (1976).

[8] In response to the question whether he had "information that the third man might be in the apartment", Ewald said, "[i]t was an assumption that he could be there too". It has been said that a protective search may not be conducted unless there is reason to believe that someone else is present. United States v Gamble, 473 F2d 1274 (CA 7, 1973); United States v Carter, 173 US App DC 54, 64-65; 522 F2d 666, 676-677 (1975); Enzensperger v Solomon, 16 Cr L Rep 4111 (CA 9, July 29, 1974, Nos 73-2407, 73-2383), not officially reported.

[9] While my colleague states that "three other persons, one of whom could have been the third participant in the robbery and murder, were milling or running around the small apartment," elsewhere it is conceded that they "were in the living room. They were milling or running around." (Emphasis supplied.) The people conceded that Crawl and the three other occupants of the apartment were in the living room when Officer Ewald entered the bedroom. The people did not prove, and indeed, do not claim that they proved that any of the occupants of the apartment were milling or running around except in the living room. In contrast with Warden v Hayden, supra, p 299, when Ewald entered the bedroom no one was "at large" in the apartment.

My colleague states "[t]he situation was not under control. The police had every reason to believe that their lives were in danger", and that the limits on the scope of warrantless searches imposed by Chimel v California, 395 U.S. 752; 89 S. Ct. 2034; 23 L. Ed. 2d 685 (1969), and United States v Chadwick, supra, "do not come into play until arrests have been made and the police are in control of the situation", and that those cases do not involve "uncontrolled and potentially life endangering situations like the situation in the case at bar". Crawl, however, had been arrested and was in handcuffs when Ewald entered the bedroom. In addition to Ewald, there were at least three other police officers in the apartment, Kelly and two or three uniformed Highland Park policemen. It is idle to suggest that Kelly and the two or three other officers were not in "control" and did not so dominate the situation that none of the occupants could have entered the bedroom against the officers' will.

Even if the other man "could have been the third robber", he was in the living room, together with the two women and Crawl, and not within reach of the barber bag located in the bedroom. When Ewald determined that no one was in the bedroom, there was no justification for a warrantless search of furnishings or other belongings in the room.

The people had the burden of proving exigent circumstances, that in fact the "situation was not under control" and the officers had "reason to believe that their lives were in danger." The officers' testimony tends to show, rather, that when Ewald entered the bedroom they were in control and none of the occupants of the apartment represented any danger to them. There is no evidentiary support for a finding that the police were not in control.

The argument that the need to collect evidence probative of guilt ("bringing a dangerous felon to the bar of justice") is a factor in determining whether there is justification for a warrantless search is completely at odds with the history of adjudication under the Fourth Amendment and the concept that there are only "``a few specifically established and well-delineated exceptions' * * * ``jealously and carefully drawn'" to the warrant requirement. Coolidge v New Hampshire, 403 U.S. 443, 453-455; 91 S. Ct. 2022; 29 L. Ed. 2d 564 (1971).

[10] See cases cited in fn 8, supra.

[11] See Warden v Hayden, supra, pp 309-310, abolishing, for purposes of the probable cause requirement, the distinction between "mere evidence" (which could not be seized) and fruits of crime and contraband (which could be seized).

[12] Mr. Justice Stewart, joined by Justices Brennan and White, concurred on Fourth Amendment grounds in the suppression of films seized in a private residence. The majority held unconstitutional a state statute making private possession of obscene material a crime.

[13] Anno: Search and Seizure: Observation of Objects in "Plain View", 29 L. Ed. 2d 1067.

Evidence discovered in the course of lawful "protective" searches has been held admissible where the evidence itself was visible as the police officers searched for suspects in hiding. See People v Block, supra (plastic bag containing substance appearing to be marijuana on table and in open jewelry box in bedroom lawfully entered); United States v Broomfield, supra (guns and drugs visible in walk-in closet and on dresser in room officer had lawfully entered); United States v Looney, 481 F2d 31, 32-33 (CA 5, 1973) (machine gun on floor under bed); United States v Briddle, 436 F2d 4, 8 (CA 8, 1970) (shotgun on floor in bedroom).

[14] The Court held that a search of the contents of a cabinet, some desks and wastebaskets was too extensive to be justified as incident to a lawful arrest, even though the furniture and wastebaskets were in "plain view" at the time of the arrest.

[15] The people do not really contend that the revolver was in plain view. Rather, they assert that "[t]he case was reasonably expected to contain a revolver", i.e., there was probable cause. The issue, however, is not whether there was probable cause but whether the police were required to submit the evidence of probable cause to a magistrate for his independent determination:

"It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end. Searches conducted without warrants have been held unlawful ``notwithstanding facts unquestionably showing probable cause,' Agnello v United States, 269 U.S. 20, 30 [46 S. Ct. 4; 70 L. Ed. 145; 51 A.L.R. 409 (1925)], for the Constitution requires ``that the deliberate, impartial judgment of a judicial officer * * * be interposed between the citizen and the police * * *.' Wong Sun v United States, 371 U.S. 471, 481-482 [83 S. Ct. 407; 9 L. Ed. 2d 441 (1963)]. ``Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,' United States v Jeffers, 342 U.S. 48, 51 [72 S. Ct. 93; 96 L. Ed. 59 (1951)], and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Katz v United States, 389 U.S. 347, 356-357; 88 S. Ct. 507; 19 L. Ed. 2d 576 (1967).

[16] The Court explained:

"It is true that, like the footlocker in issue here, automobiles are ``effects' under the Fourth Amendment, and searches and seizures of automobiles are therefore subject to the constitutional standard of reasonableness. But this Court has recognized significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts. Carroll v United States, 267 U.S. 132 [45 S. Ct. 280; 69 L. Ed. 543; 39 A.L.R. 790] (1925) [first recognizing the ``automobile exception' to the warrant requirement]; Preston v United States [376 U.S. 364], at 366-367 [84 S. Ct. 881; 11 L. Ed. 2d 777] (1964); Chambers v Maroney, 399 U.S. 42 [90 S. Ct. 1975; 26 L. Ed. 2d 419] (1970). See also South Dakota v Opperman, 428 U.S. 364, 367 [96 S. Ct. 3092; 49 L. Ed. 2d 1000] (1976)." United States v Chadwick, supra, p 12.

The meaning of the Carroll rule and the scope of the so-called automobile exception to the warrant requirement have continued to divide the Court. See United States v Chadwick, supra; Coolidge v New Hampshire, 403 U.S. 443; 91 S. Ct. 2022; 29 L. Ed. 2d 564 (1971); Cardwell v Lewis, 417 U.S. 583; 94 S. Ct. 2464; 41 L. Ed. 2d 325 (1974).

[17] Similarly, see Johnson v United States, 333 U.S. 10, 13-14; 68 S. Ct. 367; 92 L. Ed. 436 (1948); Cooldige v New Hampshire, supra, pp 449-450; Chimel v California, supra, p 761; Katz v United States, supra.

[18] "The officers could have amply insured their safety by removing the defendant from the premises immediately. Therefore, the intrusion into the upstairs rooms which brought the police into view of the [seized evidence] was not supported by any of the recognized exceptions to the warrant requirement." State v Ranker, 343 So 2d 189, 195 (La, 1977).

[19] The testimony of accomplice Wilson was impeached by his self-interest; facing a charge of first-degree murder, he was permitted to plead guilty to second-degree murder and had been sentenced to serve 5 to 15 years; also pertinent is Wilson's post-conviction recanting affidavit.

Crawl's confession may have been a fruit of the unlawful search and seizure. See part V, infra.

Four persons in the bar testified at the trial: one could not identify Crawl; another said "he was not positive;" the third identified Crawl at trial but shortly after the incident had said he did not know if he could identify either robber; the fourth identification witness was the only person whose testimony unequivocally identified Crawl. Identification testimony is often unreliable. See People v Anderson, 389 Mich. 155; 172-180, 205 NW2d 461 (1973). Unless there are special reasons to credit an identification (i.e., long acquaintance between the witness and the defendant), such evidence does not point unerringly to the defendant and cannot make other error harmless.

The gun, illegally seized following the illegal search of the barber bag, was compelling evidence of Crawl's guilt; it cannot be said that without such evidence Crawl would have, nevertheless, inevitably been convicted of first-degree murder: A police firearms examiner testified that one bullet recovered from the scene of the robbery "was positively fired" by the gun, and that two other bullets bore "a very strong similarity." Three of the four eyewitnesses said that the gun looked like the one used by one of the robbers.

[20] See Chambers v Maroney, 399 U.S. 42, 54, fn 11; 90 S. Ct. 1975; 26 L. Ed. 2d 419 (1970); Kaufman v United States, 394 U.S. 217, 220, fn 3; 89 S. Ct. 1068; 22 L. Ed. 2d 227 (1969) (issue preserved at the trial level but not preserved on appeal to the intermediate appellate court); People v Moore, 391 Mich. 426; 216 NW2d 770 (1974); People v Degraffenreid, 19 Mich. App. 702; 173 NW2d 317 (1969); People v Steeneck, 247 Mich. 583, 586; 226 N.W. 231 (1929); People v Johnson, 38 Ill 2d 399, 402-403; 231 NE2d 447, 449 (1967); People v Ibarra, 60 Cal 2d 460; 34 Cal Rptr 863; 386 P2d 487 (1963); State v Thomas, ___ W Va ___ 203 SE2d 445 (1974).

Other decisions of this Court recognizing that error not preserved at the trial level may, nevertheless, be considered on appeal include People v Crittle, 390 Mich. 367, 370; 212 NW2d 196 (1973); People v Kelsey, 303 Mich. 715, 719; 7 NW2d 120 (1942); People v Holmes, 292 Mich. 212, 215; 290 N.W. 384 (1940); People v Dorrikas, 354 Mich. 303, 326; 92 NW2d 305 (1958); and People v Smith, 260 Mich. 486, 488-489; 245 N.W. 502 (1932). See, also, Josephson, 1971 Annual Survey of Law, Civil and Criminal Evidence, 18 Wayne L Rev 101, 168 (1971).

[21] See fn 19.

[22] See People v Garcia, 398 Mich. 250, 266; 247 NW2d 547 (1976); People v Degraffenreid, supra, pp 716, 718.

[23] Although this claim of error was not preserved at trial, we advert to it because the issue is likely to arise on retrial and appears to be of recurring importance.

[24] Leech v People, 112 Colo 120; 146 P2d 346 (1944); Babb v United States, 218 F2d 538, 541 (CA 5, 1955); Pryor v State, 245 P. 669, 672 (Okla Crim, 1926); Moore v State, 186 So 2d 56 (Fla App, 1966); Lane v State, 40 Ala App 174; 109 So 2d 758 (1959); State v Jackson, 270 NC 773; 155 SE2d 236 (1967); Jackson v State, 215 Ark. 420; 220 S.W.2d 800 (1949); State v Gargano, 99 Conn 103; 121 A 657 (1923); State v Pikul, 150 Conn 195; 187 A2d 442 (1962); People v Zachery, 31 App Div 2d 732; 297 NYS2d 183 (1968); Ward v Commonwealth, 205 Va 564; 138 SE2d 293 (1964).

[25] Leroy v Government of Canal Zone, 81 F2d 914 (CA 5, 1936); State v Jackson, supra; State v Frese, 256 Iowa 289; 127 NW2d 83 (1964); Gray v State, 221 Md 286; 157 A2d 261 (1960); People v Eldridge, 17 Mich. App. 306, 313; 169 NW2d 497 (1969). See, generally, 22A CJS, Criminal Law, § 784, p 1190; Anno: Prejudicial effect of prosecuting attorney's argument of disclosure during trial that another defendant has been convicted or has pleaded guilty, 48 ALR2d 1016, 1017:

"Where two or more persons are jointly indicted for the same criminal offense which is in its nature several, or are separately indicted for such offense or for separate offenses growing out of the same circumstances, and are tried separately, the fact that one defendant has pleaded guilty or has been convicted is, as a general rule, inadmissible as against the other, since competent and satisfactory evidence against one person charged with an offense is not necessarily so against another person charged with the same offense, and since each person charged with the commission of an offense must be tried upon evidence legally tending to show his guilt or innocence."

[26] Rule 803(22) of the Federal Rules of Evidence, and the corresponding proposed Michigan rule, provide that a guilty plea of a witness other than the accused is inadmissible except for impeachment purposes.

[27] See People v Atkins, 397 Mich. 163; 243 NW2d 292 (1976).

[28] See Hurd v People, 25 Mich. 405, 416 (1872).

[29] Wong Sun v United States, 371 U.S. 471; 83 S. Ct. 407; 9 L. Ed. 2d 441 (1963).