People v. Harper

• Decision Date: 15 March 1962
• Docket Number: No. 95,95
• Citation: 113 N.W.2d 808,365 Mich. 494
• Parties: PEOPLE of the State of Michigan, Appellee, v. John M. HARPER, Respondent and Appellant.
• Court: Michigan Supreme Court

Page 808

113 N.W.2d 808

365 Mich. 494

PEOPLE of the State of Michigan, Appellee, v. John M. HARPER, Respondent and Appellant.

No. 95.

Supreme Court of Michigan.

March 15, 1962.

Newman, Chamberlain, Jones & Mackay, Newman, Jones & Mackay, Lansing, for appellant.

Paul L. Adams, former Atty. Gen., Joseph Bilitzke, former Sol. Gen., Lansing, Leo A. Farhat, Pros. Atty., for Ingham County, Howard A. McCowan, Civil Asst., for Ingham County, Frank J. Kelley, Atty. Gen., Eugene Krasicky, Sol. Gen., James R. Ramsey, Asst. Atty. Gen., for appellee.

Before the Entire Bench, except ADAMS, J.

SOURIS, Justice (for affirmance).

Defendant was convicted of possession of a narcotic drug in violation of section 3 of P.A.1952, No. 266, C.L.S.1956, § 335.153 (Stat.Ann.1957 Rev. § 18.1123):

'Any person not having a license * * * who shall possess or have under his or her control any narcotic drug shall be deemed guilty of a felony * * *.'

He was tried on an information in two counts, one charging unlawful possession of a narcotic (marijuana) and the other charging unlawful control of a narcotic. A jury found him guilty of the possession charge but not guilty of the control charge. A companion arrested with Harper pleaded guilty to both counts.

Questions raised by this appeal involve the legality of defendant's arrest and a subsequent search and seizure; determination whether there was an unnecessary delay between arrest and arraignment; and determination whether the evidence was sufficient to support his conviction. These questions were properly preserved for review by timely motions made before trial to suppress certain evidence and to quash the information and by motion made at the conclusion of the people's proofs for directed verdict of acquittal. Each motion was denied and defendant rested without submitting proofs in his defense.

From the proofs it appears that the state police had been investigating the activities of a William Reich, a suspected narcotics peddler. Sergeant Goodnuff, who arrested Reich and the defendant, testified at the hearing on the motions that he had been told by fellow officers conducting the investigation of Reich that Reich had a friend whose name was Mike; that Reich and Mike possibly lived together and played in an orchestra at an East Lansing restaurant; and that Mike's car had been seen frequently around Reich's apartment. During the evening preceding the arrests, Reich had delivered a quantity of marijuana to an undercover police agent. The agent and Sergeant Goodnuff, in plain clothes, went to Reich's aparment at about 4:30 the following morning to pay Reich for the marijuana and to effect his arrest. Reich and defendant Harper drove up to the apartment in Reich's car while the agent and Goodnuff were sitting in an unmarked police car waiting for Reich. Sergeant Goodnuff was introduced to Reich as a friend and Reich introduced defendant Harper to the agent and to the sergeant as his friend, Mike.

The four men then entered Reich's apartment. The living room, where all subsequent events leading up to the arrests occurred, was about 12 feet long and 8 or 9 feet wide. Sergeant Goodnuff feigned illness and sat on a bed, Harper sitting next to him. Reich and the agent stood near a doorway at the end of the room about 8 feet from the sergeant and a little closer to the defendant. Sergeant Goodnuff testified that he could hear the conversation between Reich and the agent and saw the agent hand Reich $50. Sergeant Goodnuff also heard Reich and the agent talk about where each had been during the night, Reich telling the agent that he and Harper had been to Ann Arbor 'checking on whether our friends got busted in Ann Arbor.' He reported that 'they were arrested for shoplifting, instead' [sic].

After the money had changed hands, Sergeant Goodnuff announced to Reich and Harper that he and the agent were police officers and that they were under arrest. Other officers stationed in the area thereupon entered the apartment upon a signal given by the agent or the sergeant. Detective Cloonan was among the officers who entered. He testified at the preliminary examination that after searching Harper he had a conversation with him:

'Q. Will you please tell the court what this conversation was?

'A. I asked Mr. Harper where the rest of the marijuana was and he told me it was in the trunk of his automobile.

'Q. Did he refer to it in any specific manner?

'A. He said the stuff was in the trunk of his automobile. I asked him what he meant by stuff and he stated: marijuana. I asked him if he knew it was marijuana when it was put in the trunk of the car and he said that he did.'

Harper's car, which had been parked in a lot near Reich's apartment, was searched. Its trunk was opened with a key taken from Harper during his search and in it was a suitcase. The suitcase was opened with a key taken from Reich. It contained about eight pounds of marijuana.

It was on the basis of the foregoing proofs the circuit judge was obliged to determine the validity of the defendant's arrest without a warrant. We believe he was correct in concluding the arrest was valid. C.L.1948, § 764.15 (Stat.Ann.1954 Rev. § 28.874) permits peace officers to make an arrest without a warrant upon reasonable cause to believe that a felony has been committed and that the person arrested has committed it. What Sergeant Goodnuff had reasonable cause to believe at the time of arrest is the pertinent subject of our inquiry.

Defendant leans heavily upon the sparcity of facts about Harper then known to the sergeant. He knew only that Harper was a friend of Reich, possibly a roommate; that they played together in an orchestra; and that Harper's car was seen frequently near Reich's apartment. This much the record discloses he knew about Harper before even meeting him, but not to be overlooked is what he learned, or had reasonable cause to believe, about Harper immediately before the arrest. He knew, because he heard Reich tell the undercover agent, that Harper had accompanied Reich to Ann Arbor that evening to check on some friends who had been arrested. He knew that the trip was taken after the undercover agent had received delivery of marijuana from Reich for which Reich expected to be paid at the time of the arrests. We think he was entitled to infer that, under such circumstances, Reich hardly would be at that time in the company of Harper if Harper were not also involved in Reich's illegal activity. Add to that, Harper's presence within viewing and hearing distance when Reich received payment for the marijuana from the undercover agent and nothing could be more reasonable than belief in Harper's complicity with Reich. We measure this belief by circumstances existing at the time of arrest and included among the circumstances to be considered are the actions of third parties present from which the arresting officer is entitled to draw reasonable inferences. This is not to suggest that mere presence with a felon at the time of his arrest subjects one to arrest also, but it does suggest that we will not isolate facts or beliefs from their surrounding circumstances in determining the existence of what has come to be called probable cause for arrest without a warrant.

Its existence depends in every case upon the peculiar circumstances confronting the arresting officer. People v. Orlando, 305 Mich. 686, 689, 9 N.W.2d 893. He makes his determination, and we review it, not as a legal scholar determines the existence of consideration in support of a promise, but as a man of reasonable prudence and caution would determine whether the person arrested has committed a felony. See Hammitt v. Straley, 338 Mich. 587, 61 N.W.2d 641, and the cases referred to therein.

The search of defendant following his arrest must likewise be upheld as not unreasonable within the constitutional meaning of that term. Article 2, § 10, Constitution (1908). This Court has held that an officer may search a person after he is lawfully arrested for commission of a felony. People v. Licavoli, 245 Mich. 202, 222 N.W. 102. In the case at bar the search produced nothing more significant at the moment than a set of car keys. The keys acquired substantial significance moments later, however, when defendant told the officers, present, in response to their questioning, that there was marijuana in the trunk of his car. Based upon this admission by defendant after his arrest, we hold the subsequent search of defendant's car to have been reasonable. People v. Orlando, supra. Quoting People v. Gonzales, 356 Mich. 247, at 253, 97 N.W.2d 16, defendant argues that even if his arrest be upheld as legal, the subsequent search of his car is not automatically rendered constitutional. Of course he is right in this, but nothing said in Gonzales or in any other case about which we know requires that determination of the reasonableness of a search subsequent to arrest be limited to circumstances as they were known to exist at the time of arrest. The reasonableness of the search must be determined as of the time of search and consideration must be given to information obtained by the searching officer as a result of the arrest and as a result of any other lawful searches. Certainly the admissions made by Harper himself are sufficient to support the reasonableness of the search of his car.

Had we concluded that the search of defendant's automobile was constitutionally unreasonable, we would have been obliged to consider whether the proviso clause of article 2, § Constitution (1908), has continuing vitality in the light of the decision rendered last year by the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. However, having concluded that the search of the car was reasonable, the marijuana found therein was admissible in evidence without necessitating reliance upon the questioned proviso clause which would have authorized its admission (at least before...