People v. Smith

• Decision Date: 02 October 1969
• Docket Number: No. 3,Docket No. 3856,3
• Citation: 19 Mich.App. 359,172 N.W.2d 902
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ulister SMITH, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 902

172 N.W.2d 902

19 Mich.App. 359

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ulister SMITH, Defendant-Appellant.

Docket No. 3856.

Court of Appeals of Michigan, Division No. 3.

Oct. 2, 1969.

Released for Publication Dec. 30, 1969.

Robert J. Moskal, Moskal, McDonald, McDonald & Callison, Saginaw, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Robert B. Currie, Pros. Atty., Saginaw County, Saginaw, for plaintiff-appellee.

Before LEVIN, P.J., and HOLBROOK and DANHOF, JJ.

LEVIN, Presiding Judge.

The defendant Ulister Smith's principal argument on appeal concerns the admissibility in evidence of certain items seized by the police in alleged contravention of his Fourth Amendment rights. The trial judge ruled that the items were admissible because the defendant's attorney failed to make a timely pretrial motion to suppress and also because he concluded on the merits that the search of the defendant's apartment was a valid search.

At 11:00 p.m., November 24, 1965, a police officer was shot as he attempted to pursue an apparent thief. His partner chased the unidentified man but did not apprehend him. The defendant was arrested the following day and later was charged with and now appeals his conviction of assault on the officer with intent to commit murder. ¹

Five hours after the shooting, at 4:30 a.m., 3 police officers went to the defendant's 3-room apartment looking for him. They were admitted by the defendant's 17-year-old brother, Willie Cassell, who lived there. 2 of the 3 officers testified at the trial. They said that during this visit they obtained a single expended shotgun shell from a wastebasket in the bathroom. At 10:00 a.m. one of the officers who made the first visit and 2 other officers returned to the apartment for a second visit; at this time they obtained a box of unused shotgun shells. The police gave Cassell a receipt for the box of unused shells.

At the trial the officers identified a spent shell and unused shells as the ones they obtained at the defendant's apartment and these were admitted in evidence over objection. The spent shell was compared with a shell found in back of the store near the scene of the shooting; both of these shells were shown to have been fired from the same gun. The gun itself was never found.

The police did not have a search warrant on either visit to the defendant's apartment. On the first visit, they told Cassell that they were looking for his brother, the defendant, but they did not state the reason for their investigation. The officers asserted that on both visits Cassell voluntarily admitted them to the apartment. They contended that the shells were not discovered during the course of a search of the apartment. Rather, they said, on the first visit they asked Cassell whether the defendant had a gun and accompanied him as he went from one room in the apartment to another looking for a gun. They testified further that on the first visit Cassell produced the spent shell from a wastebasket in the bathroom. ² An officer testified that on the second visit Cassell obtained the box of unused shells from a dresser drawer in the bedroom and handed it to them.

Cassell testified that the police conducted a thorough search of the apartment and its contents and themselves produced the spent shell from the wastebasket and obtained the box of unused shells from the dresser drawer. He asserted that he had never seen the spent shell before the police produced it.

The people argue that since Cassell voluntarily gave the police the sellers there was no search and that even if the actions of the police could properly be characterized as a search and seizure, Cassell consented.

It is a familiar procedural rule that a motion to suppress must be made, if at all, in advance of trial. A trial judge is not obliged to turn aside from the trial of a criminal case to conduct a separate hearing on admissibility in the absence of the jury, although, as a matter of discretion, he may do so. People v. Ferguson (1965), 376 Mich. 90, 95, 135 N.W.2d 357. One of the questions before us is whether the refusal of the trial judge to conduct a separate hearing in this case was an abuse of his discretion.

At the trial the defendant's attorney asserted that he had no prior knowledge that the police had obtained a spent shell in the defendant's apartment. As previously mentioned a spent shell (not referred to in the receipt given Cassell) was identified at the trial as having been fired by the same gun which fired a shell found near the scene of the shooting. The defendant's attorney, Joseph R. McDonald, filed an affidavit in support of a motion for a new trial. He asserted that Cassell turned over to him the receipt for the unused shells during a pretrial interview but did not tell him that a spent shell had also been obtained by the police.

Since the defendant's attorney knew of the seizure of the unused shells and chose not to attempt to suppress that evidence, the trial judge was not obliged to entertain out of time an objection to the introduction of the unused shells. ³ However, as to the spent shell a different view is taken.

The defendant was in custody from the time of his arrest the day after the shooting, November 25, 1965, until the trial, April 13, 1967. The facts that the police had visited the defendant's apartment and had there obtained a spent shell were not brought out at the preliminary examination. There is nothing in the record showing that the defendant or his attorney had any reason before the trial to believe that such evidence had been obtained by the police. On the stand Cassell was an unresponsive, difficult witness. It is understandable that the attorney's interview with him would not have brought to light the facts that the police had made 2 visits to the defendant's apartment and that they had obtained, on the first visit, evidence not listed in the receipt given Cassell at the conclusion of the second visit.

The fact that the police had obtained the unused shells, which was revealed by the receipt, would not have alerted the attorney to the fact that other items not listed had been taken. Indeed, one examining the receipt could reasonably assume that all the items taken were listed. There is no reason to disbelieve the attorney's assertion that he was unaware before the trial of the seizure of the spent shell.

The interest in the orderly conduct of a trial, which is the basis of the rule requiring that a motion to suppress be made in advance of trial, must be balanced against the defendant's constitutional right to have illegally seized evidence suppressed. In a case such as this where the prosecutor has obtained important evidence and decides not to disclose that fact before introduction of the evidence at the time of trial and there is no reason for the defendant or his counsel to have been aware that such evidence has been taken, the defendant does all that he can constitutionally be required to do when he objects to the introduction of the evidence at the time it is offered in evidence and seeks an opportunity then to show that it was illegally seized. ⁴

Having reached the conclusion just stated, the case would ordinarily be remanded for a testimonial hearing on the admissibility of the seized evidence. However, there is no need to adhere to that course of action in this case. In addition to his ruling that the defendant's objection was untimely, the judge stated on 2 occasions during the trial and again in explaining his denial of the motion for a new trial that on the merits the evidence was properly obtained. The prosecutor has not asked for an opportunity to introduce additional evidence. At the trial 3 police officers who went to the defendant's apartment and Willie Cassell were questioned extensively regarding the 2 visits. ⁵ It does not appear that any additional relevant evidence would be forthcoming at a hearing following a remand. ⁶

In denying a renewed motion to suppress made after Cassell testified at the trial, the judge stated:

'The defendant has the burden of proof on a motion to suppress (and) has not made out a case here.'

This was erroneous. On a motion to suppress evidence where the prosecution seeks to rely upon consent to justify a warrantless search, it has the burden of proving that the consent was in fact freely and voluntarily given. ⁷

In reviewing a trial judge's ruling on an issue involving asserted deprivation of a constitutional right, an appellate court is obliged itself to review the evidence and to make its determination guided but not controlled by the trial judge's factual determination. ⁸ In this case the trial judge's determination is entitled to less weight than we would ordinarily give it since he imposed an improper burden of proof on the defendant.

The law regarding consent to a search by a defendant or a third party has been significantly affected by a fundamental shift in emphasis in the application of the Fourth Amendment ⁹ announced by the United States Supreme Court:

'The premise that property interests control the right of the Government to search and seize has been discredited. Searches and seizures may be 'unreasonable' within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts' Warden, Maryland Penitentiary v. Hayden (1967), 387 U.S. 294, 304, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782.

In other cases, ¹⁰ in evaluating claims that constitutional rights have been waived, the United States Supreme Court and the Michigan Supreme Court have applied the familiar principle that waiver is the intentional relinquishment or abandonment of a known right. ¹¹ In People v. Shaw (1968) ...