People v. Dunlap

82 Mich. App. 171 (1978) 266 N.W.2d 637

PEOPLE
v.
DUNLAP

Docket No. 29571.

Michigan Court of Appeals.

Decided February 8, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Lynwood E. Noah, Assistant Prosecuting Attorney, for the people.

Charles E. Miller, for defendant.

Before: V.J. BRENNAN, P.J., and D.F. WALSH and H.L. HEADING,^[*] JJ.

PER CURIAM.

Defendant Robert Wayne Dunlap was convicted by a jury of armed robbery, contrary to MCLA 750.529; MSA 28.797, and assault with intent to do great bodily harm less than murder, contrary to MCLA 750.84; MSA 28.279. Defendant first assigns as error the trial court's denial of a defense motion to suppress evidence and statements.

This Court will not overturn a trial court's ruling at a suppression hearing unless that ruling is found to be clearly erroneous. People v Triplett, 68 Mich. App. 531, 535; 243 NW2d 665 (1976), lv den, 397 Mich. 842 (1976), People v Bunker, 22 Mich. App. 396, 404; 177 NW2d 644 (1970), People v Smith, 19 Mich. App. 359, 367; 172 NW2d 902 (1969), People v Stewart, 25 Mich. App. 204, 206; 181 NW2d 14 (1970), People v Terrell, 77 Mich App 676, 679; 259 NW2d 187 (1977). The suppression hearing in the instant case was addressed both to certain physical evidence which was seized from an automobile in which the defendant was riding, and certain statements made by the defendant and his companion, the driver of the automobile.

To justify a warrantless automobile search, there must be probable cause to believe that a felony has been or is being committed. People v Iverson, 34 Mich. App. 519; 191 NW2d 745 (1971), People v Strong, 77 Mich. App. 281, 284; 258 NW2d 205 (1977). In passing upon the reasonableness of the search, only those facts known to the officers at the time of the search may be considered; events subsequent to the seizure may not. People v White, 46 Mich. App. 195, 198; 207 NW2d 921 (1973).

In the instant case, the police officers involved made a routine stop of the vehicle in which the defendant was riding for a traffic violation. They discovered the defendant, a passenger in the back seat, with a severe gunshot wound to the leg. They arranged to have an ambulance meet them, and upon arriving at the rendezvous point proceeded to ask the pair what had happened. The driver first indicated that the defendant had a gun in the back seat. One officer asked the defendant what had happened and he stated that he shot himself accidentally. The officer then inquired where the gun was and the defendant told him. The officer seized the gun as well as a bag of money and checks and a knife from the glove compartment.

The circumstances justified the police officers' belief that "criminal activity was afoot", and they had probable cause, therefore, to conduct the search. People v LaGrange, 40 Mich. App. 342; 198 NW2d 736 (1972), People v Lillis, 64 Mich. App. 64; 235 NW2d 65 (1975), People v Parisi, 393 Mich. 31; 222 NW2d 757 (1974), Terry v Ohio, 392 U.S. 1; 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968). Any statements made on the scene at that particular moment were not taken in violation of Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966). Rather, the circumstances represented "a situation of an officer reacting naturally and spontaneously to the scene before him. It was a routine means of commencing an investigation and not an inquiry made pursuant to an already-launched investigation. The defendant had not as yet been placed under arrest; neither was he in foreign surroundings nor in a `police-dominated atmosphere' as stressed in Miranda." People v Herman Jackson, 37 Mich. App. 664, 669; 195 NW2d 312 (1972). General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by the holding of Miranda. Miranda v Arizona, supra at 477-478. Therefore, both the statements taken at that time and the search and seizure of contraband was proper.

Further, the statement made by defendant while in an ambulance on the way to Ann Arbor, though the defendant was likely in custody at that time, was a volunteered statement and therefore not taken in violation of Miranda.

A more difficult situation is presented by defendant's confession made to police officers in his hospital room some days after being arrested. Defendant had been at Ann Arbor Hospital for several days with 24-hour police guard at his door. His wound was quite serious and he was receiving shots of morphine and phenergan for several days. Late one night, after the defendant had been receiving these shots for approximately four days, an officer came in to speak with the defendant at the defendant's request. He proceeded to take a full confession from the defendant and also had the defendant sign a waiver card. The police officer who took the statement testified that defendant told him he wanted to confess so that his brother-in-law, the driver of the car, could get out of jail. The defendant asserts that the amount of medication he was receiving as well as the pain and suffering of the wound preclude the possibility that he exercised a knowing and intelligent waiver of his rights. The police officer testified on the contrary that the defendant was in full control of his faculties and voluntarily made the statements. That the defendant was narcotized does not per se render him incapable of a knowing waiver. People v Townsend, 11 Ill 2d 30; 141 NE2d 729 (1957). Rather the totality of the circumstances determine the result. Glenn v Missouri, 341 F Supp 1055 (ED Mo, 1972), Beecher v Alabama, 408 U.S. 234; 92 S. Ct. 2282; 33 L. Ed. 2d 317 (1972). The defendant testified that he had no memory of making any confession of any sort. He also testified that he did remember signing something but that he was not aware of its contents.

The trial court determined that the waiver was in fact voluntary, knowing and intelligent. Under the circumstances we cannot say that such finding was clearly erroneous. People v Triplett, supra at 535, People v Stewart, supra at 206.

Defendant next asserts that the dismissal of charges against him while he was recuperating in the hospital denied him due process. When defendant had recovered from his surgery he was rearrested, recharged and rearraigned. We find no violation of due process here. People v Curtis, 389 Mich 698, 706; 209 NW2d 243 (1973), People v Clark, 43 Mich. App. 476, 480; 204 NW2d 332 (1972), People v McCartney, 72 Mich. App. 580, 585; 250 NW2d 135 (1976).

Affirmed.

NOTES

[*] Detroit Recorder's Court judge, sitting on the Court of Appeals by assignment.