People v. Giacalone

• Decision Date: 16 April 1970
• Docket Number: No. 1,Docket No. 6971,1
• Citation: 178 N.W.2d 162,23 Mich.App. 163
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vito GIACALONE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 162

178 N.W.2d 162

23 Mich.App. 163

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vito GIACALONE, Defendant-Appellant.

Docket No. 6971.

Court of Appeals of Michigan, Division No. 1.

April 16, 1970.

Rehearing Denied May 7, 1970.

Released for Publication July 8, 1970.

Joseph W. Louisell, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert C. Goussy, Asst. Atty. Gen., for plaintiff-appellee.

Before DANHOF, P.J., and FITZGERALD and McGREGOR, JJ.

McGREGOR, Judge.

At approximately six o'clock a.m. on May 14, 1968, nine police officers representing four law enforcement agencies, including Internal Revenue Service, arrived at the defendant's home and, pursuant to a valid arrest warrant, proceeded to arrest the defendant as one of the 14 persons charged in that warrant with conspiracy to commit extortion.

When he answered the door, defendant was clothed in a pair of 'shorty' pajamas, a pair of slippers and a robe, and a prosthesis was attached to his leg. Defendant contends that the police officers ordered him to the bedroom to change his clothes since he was under arrest.

Defendant complied with these instructions, accompanied by several police officers. One of these officers testified that when the defendant approached a dresser to get some socks, an officer stopped him and searched the drawers before the defendant was allowed to open the dresser. This search of the dresser drawers by the police officer revealed a blackjack, for possession of which defendant was subsequently tried and convicted, M.C.L.A. § 750.224 (Stat.Ann.1962 § 28.421), thus this appeal. Although other charges have stemmed from this search, i.e., certain guns alleged to have been illegally possessed, those charges are not considered in this appeal.

Defendant alleges as error the denial of his pretrial motion to suppress, which motion was argued for six to seven days, as well as a number of other alleged errors which will be reviewed seriatim.

It is asserted that the lower court erred in denying defendant's motion to suppress the blackjack from evidence, in that the search of his home was an unreasonable one and thus was in violation of the 4th and 14th Amendments to the U.S. Constitution.

'* * * The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *' Defendant does not directly attack the validity of the arrest warrant, but contends that this warrantless search was not truly incident to his arrest. He claims that the arrest was merely used as a subterfuge to legitimize and implement an otherwise impermissible search of the premises.

Under some circumstances, a contemporaneous search of a residence without a search warrant may be deemed lawful if it is incidental to a valid arrest. United States v. Rabinowitz (1950), 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Harris v. United States (1946), 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; Agnello v. United States (1925), 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145. When making an arrest, officers may make a reasonable search for weapons in order to prevent the accused's use thereof, and to protect their own lives by exposing any dangerous weapons which might be concealed by the accused and subject to use against the police officers. Warden, Md. Penitentiary v. Hayden (1967), 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; Preston v. United States (1964), 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Agnello, supra.

While conceding the propositions in the above cited cases, it has been defendant's contention throughout the proceedings that the search in this case was not truly incidental to an arrest. He contends that under the present posture of the law, law enforcement agents may not use an arrest, legal or otherwise, as a subterfuge to make an otherwise impermissible search of one's premises. Jones v. United States (1958), 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514; United States v. James (CA 6, 1967), 378 F.2d 88.

In Jones, supra, the government, in prosecuting the defendant for various violations stemming from and including the possession of an unregistered still, attempted to use as evidence certain distilling equipment seized from the home of the defendant. The government maintained that their entry into the home was for the purpose of arresting the defendant and that, once inside the home, they could conduct an incidental search. The U.S. Supreme Court, in reversing the defendant's conviction, concluded that the testimony of the police officers established that their primary purpose in entering was to search for distilling equipment and not to arrest.

In James, supra, the following language is contained, which aptly describes the situation therein:

'In the evening of September 26, 1963, approximately ten agents and police officers assembled at the Highland Park Police Station for the avowed purpose of planning the arrest of James and Mallory. They intended to search the apartment if an arrest was made. After making their plans, they descended en masse upon the apartment at 9:35 P.M., and one or two officers were assigned by Agent Miller to search each of the five rooms of the apartment. Mallory was not present but was arrested later. James was arrested in the dining room of the apartment, and the search was commenced in each of the five rooms and continued for one hour. The officers remained in the apartment for two and one-half hours. In a bedroom closet was found a vacuum cleaner which contained the narcotics.

'(1) Taking into account all of the admitted facts and circumstances of the case, including the large aggregation of agents and police officers, it seems to us that the agents and officers were interested in something more than merely making an arrest. It is clear that their primary purpose was to make a general exploratory search of the apartment, with the hope of finding narcotics.' United States v. James, Supra, 90.

Some additional facts will serve to illuminate and bring into sharper focus the events which transpired. Defendant alleges that, at the time of his arrest, he wanted to leave immediately; that he said, 'Okay, I'm ready to go now,' or words to that effect, to which the officer in charge allegedly replied that he did not want to go as he was considering the manner in which defendant was dressed. However, defendant asserts that one of the officers made the statement that a search was going to be made of the defendant's bedroom, which statement was corroborated by another of the police officers:

'Q. (Attorney for defendant) Lest I forget it, when Sgt. Mull said, 'There is going to be a search made of the subject's bedroom,' that was said in the presence of Mr. Giacalone, wasn't it?

'A. (Police Officer Boffa) I believe so, but I don't know, I don't know if that's the exact words used.

'Q. (Attorney for defendant) Well, that was the substance of it, 'There is a search going to be made of the bedroom'?

'A. That was my understanding, yes.'

The lower court, in the opinion on the motion to suppress, concerning the testimony on this point, said:

'It is true that Sergenant Boffa, of the Sterling Heights Police Department, in his testimony supported the defendant's view that Mull (Sergeant of the Michigan State Police) told the defendant that before they left there would have to be a search of the defendant's bedroom. But Boffa throughout seemed to have only vague impressions; he was easily led by a strong cross-examiner; his memory was not clear and certain on this point. On this particular subject, he is outnumbered and outweighed by the testimony of other witnesses.

'* * * The court finds that Mull's suggesting that 'Vito Giacalone change from bed clothes to street clothes was perfectly reasonable and proper; that it was a suggestion, not a directive or an order; that Vito Giacalone readily accepted it without any sense of duress or compulsion; that Mull's suggestion was made in good faith, without hidden or ulterior motive; and finally that Mull's suggestion about the defendant's attire was made without the intention or purpose of enabling the police to search the bedroom or any other area. This finding is corroborated by the fact that the officers, upon entering the defendant's bedroom, did not immediately begin to search it, as will be seen.'

Several officers, approximately three to five of them, accompanied defendant to the upstairs bedroom to dress; it was then, by word, gesture or overt act, that defendant indicated he wanted and intended to get some clothes out of a chest of drawers. After defendant's manifestation of such intention, one of the officers stopped him and searched the chest of drawers and found a small arsenal of weapons therein, including the blackjack.

Information given to the officers prior to this arrest indicated that there was a concealed safe beneath the bedroom closet floor. Upon the officers' request, the defendant opened the same and its contents were inspected.

The search of the bedroom was followed by a thorough, nearly two-hour search of the house. Every room received at least a quick eye inspection, and certain rooms were inspected thoroughly and meticulously by expert searchers.

The obvious existence of another purpose on the part of the police officers, other than making an arrest and a search reasonably incident thereto, tends to becloud the arrest and its incidental search. Defendant has cited ample authority for this proposition.

The trial court's opinion aptly points out:

'The people's case would have been much clearer, cleaner, and easier if the police had not beclouded it with the possibility that there were purposes beyond the mere arrest of Voto Giacalone--purposes beneficial to the Internal Revenue Service and the Sterling Heights Police.'

It is true that four of the officers who conducted this raid were representatives of the Internal Revenue...