People v. Trudeau, 33

• Citation: 385 Mich. 276,187 N.W.2d 890
• Decision Date: 07 July 1971
• Docket Number: No. 33,33
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Allen TRUDEAU, Defendant-Appellant.
• Court: Supreme Court of Michigan

Page 890

187 N.W.2d 890

385 Mich. 276

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Allen TRUDEAU, Defendant-Appellant.

No. 33.

Supreme Court of Michigan.

July 7, 1971.

Thomas G. Plunkett, Pros. Atty., Oakland County by Dennis Donohue, Chief Appellate Counsel, Pontiac, for plaintiff-appellee.

State Appellate Defender Office by Jane Burgess, Detroit, Mich., for defendant-appellant.

Before the Entire Bench.

PER CURIAM.

Defendant was arrested on November 19, 1967, in the U.S. Post Office Building on Dearborn Street, Detroit. He was charged with an attempt to injure or destroy a vault, and breaking and entering a building with intent to commit larceny. He was arraigned on November 20, 1967, without an attorney. At the arraignment, counsel was appointed for Trudeau and his co-defendant. The preliminary examination was set for November 27.

On November 6, 1967, during an attempted burglary from a vault at the Shaarey Zedek Synagogue in Southfield, Michigan, the night watchman was killed by blows to his head from a crow bar. Sergeant Fasbinder of the Southfield police was assigned to that case. One of the few leads available was a heel print left at the scene.

On November 27, Sergeant Fasbinder went to Recorder's Court, where Trudeau's preliminary examination on the U.S. Post Office case was to be held, apparently to view the shoes of Trudeau and his co-defendant because of the similiarity between the Post Office and the Shaarey Zedek jobs. Trudeau's appointed counsel was unable to appear at the November 27 preliminary examination. Detective Randolph of the Detroit Police Department and Sergeant Fasbinder took defendant from the bull pen at the court house and requested that he lift his feet so that Sergeant Fasbinder could observe the heelds of his shoes. He did so. Later the same day back at the Wayne County jail, Sergeant Fasbinder, with two or more police officers, requested Trudeau to give him his shoes. Trudeau refused. The police officers took the shoes from him and gave them to Sergeant Fasbinder. Trudeau had no attorney present. He was not advised of his constitutional rights. The officers seizing the shoes had no warrant.

At Trudeau's preliminary examination on the Shaarey Zedek charges, his appointed counsel argued unsuccessfully that all evidence pertaining to the shoes should be suppressed. At trial, the shoe, the imprint, and their comparison by an expert, were introduced in evidence over defendant's objection. Trudeau was convicted of second degree murder and breaking and entering in connection with the Shaarey Zedek crime. The Court of Appeals affirmed. (22 Mich.App. 246, 177 N.W.2d 171). We granted leave to appeal. (384 Mich. 762).

Defendant argues that his fourth, fifth and sixth amendment rights were violated while he was in custody awaiting trial for another crime. The State argues that the seizure was allowable under the 'open view' doctrine, and that there is no fourth, fifth or sixth amendment protection against fingerprinting or obtaining measurements of a defendant in custody.

We are unable to accept the people's contention that the shoes were properly seized under the plain or open view doctrine. There is no showing that when Sergeant Fasbinder went to the jail he was acting on anything other than a mere suspicion. Even after he had viewed the shoes and finally obtained them, the vital link between the shoes and the heel print found at the scene of the crime was not established. The shoes were turned over to an expert who testified as follows:

'A. * * * These examinations, as I say, started that day and continued for a period of about one week, either full or part time, during that period of time. In the first instance, I examined a partial heel print found on the back of a statement form, People's exhibit two. This examination was made visually and microscopically, utilizing various lighting techniques. A little bit later, the partial heel print was photographed in a number of ways, utilizing various types of lighting techniques. The heels of the shoes, People's exhibit 15, were also examined, visually by myself, and microscopically treated in various ways, and photographed. At least the left heel was photographed, subsequently, by myself. Comparisons were then made of the photographs obtained, as a result of the initial comparisons and microscopic examination.

'Q. Approximately how long did this examination take you, Lieutenant Myers?

'A. As I've stated, it took the better part of one week, was the working hours, the better part of one week.'

From the above...