DocketNumber： Docket 7,743
Citation Numbers： 178 N.W.2d 128, 23 Mich. App. 129, 1970 Mich. App. LEXIS 1817
Judges： Lesinski, Quinn, Brennan
Filed Date： 3/31/1970
Status： Precedential
Modified Date： 11/10/2024
Michigan Court of Appeals.
*130 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people on appeal.
Carl Levin (Defenders' Office Legal Aid and Defender Association of Detroit), for defendant on appeal.
Before: LESINSKI, C.J., and QUINN and V.J. BRENNAN, JJ.
Leave to appeal denied June 12, 1970. 383 Mich 792.
PER CURIAM.
Defendant Willie Williams was convicted, following waiver of his right to jury trial, of breaking and entering a building in the nighttime (CL 1948, § 750.110 [Stat Ann 1962 Rev § 28.305])[1] and larceny from a building (MCLA § 750.360 [Stat Ann 1954 Rev § 28.592]). Following the denial of defendant's delayed motion for new trial, this Court granted defendant's application for delayed appeal.[2]
The sole issue raised on appeal by defendant is whether several exhibits admitted at trial consisting of tools missing from the gas station of the complaining witness were obtained as a result of an illegal search and seizure, and whether their admission into evidence constituted reversible error.
Although defendant objected to the introduction of the exhibits at trial, no motion to suppress was made prior to trial. It has long been a well-established rule that the illegality of seizure of evidence, where the facts constituting such illegality are known before trial, must first be raised by a motion to suppress in advance of trial. Defendant may not raise the issue at trial for the first time. People *131 v. Heibel (1943), 305 Mich 710; People v. Ferguson (1965), 376 Mich 90; People v. Wilson (1967), 8 Mich App 651. A defendant with knowledge of facts constituting an alleged illegal search and seizure before trial has the responsibility of communicating same to his attorney who then has the responsibility of moving to suppress in advance of trial. People v. Ferguson, supra; People v. Wilson, supra. In the instant case defendant was clearly aware of all the facts surrounding his arrest and the search and seizure of the exhibits now complained of. As no motion to suppress was made prior to trial the issue of illegal search and seizure was waived.
Affirmed.
[1] See currently: MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305).
[2] By order dated October 2, 1969.