People v. Willis

Decision Date24 April 1973
Docket NumberNo. 3,Docket No. 13237,3
Citation208 N.W.2d 204,46 Mich.App. 436
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. David WILLIS, Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

David Willis, in pro. per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.

Before DANHOF, P.J., and R. B. BURNS and J. H. GILLIS, JJ.

J. H. GILLIS, Judge.

Defendant David Willis and Clarence Williams 1 were convicted by a jury of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. Defendant appeals In propria persona.

The facts surrounding the commission of the robbery of the Alaska Fur Store in Grand Rapids were carefully set out by Judge Holbrook in People v. Williams, 39 Mich.App. 234, 197 N.W.2d 918 (1972). Because defendant raises other issues, we set out the facts surrounding the events leading to the arrest of both subjects in detail.

In the early morning hours of the day following the commission of the crime in Grand Rapids, an Ohio state trooper observed a car traveling the Ohio turnpike at a high rate of speed. He gave chase and determined the vehicle was traveling in excess of 100 miles an hour. Upon stopping the vehicle, neither the driver, defendant Willis, nor the passenger, Clarence Williams, could produce a valid registration. Defendant stated the car belonged to a friend and he was returning it to Cleveland. He did not remember his friend's name or where he lived. The trooper, suspecting the car to be stolen, frisked both passengers and found no weapons. The trooper, without turning his back to the subjects, checked the area under the front seat of the car and found two .38-caliber pistols. The trooper made a search of the interior of the car because, at that time, he had not made a determination of whether he would allow the subjects to drive the car to the nearest police station or court for posting bond, or to take them into custody. Upon finding the weapons, his choice of alternatives narrowed. He placed them under arrest, called for assistance, and the car was towed away.

An inventory of items found in the car was made shortly thereafter, pursuant to Ohio State police regulations. A large quantity of furs with tags identifying their origin as the Alaska Fur Store was found in the trunk. Federal authorities as well as the Grand Rapids police were contacted and police mug shots, taken pursuant to the Ohio arrest, were eventually shown to several of the victims of the robbery in Michigan who later testified at trial.

Prior to trial, a hearing was held to determine the admissibility of the weapons and furs found in the car. The trial court held the search illegal and suppressed that evidence. The trooper was permitted to identify the make, model, year, and license plate of the car, its occupants, and their clothing, as well as the circumstances of the speeding violation. The circumstances surrounding the identification by mug shots was also shown at trial.

Defendant maintains that the investigation on the robbery in Michigan focused on him as a direct consequence of an illegal search and seizure. Consequently, he argues, unless the identification testimony can be shown the result of an independent basis rather than the primary taint of an illegal search, his conviction ought to be reversed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Silberthorne Lumber Co v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426 (1920).

This argument, an adaption of the 'fruit of the poisonous tree doctrine' was not raised at or before trial. In Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307, 312 (1939), certain burdens were placed on defendants raising such a theory. The defendant must 'prove that a substantial portion of the case against him was a fruit of the poisonous tree' after establishing a primary taint due to illegal police activity. Only after he has done so is the prosecution required to show the complained evidence had independent origin, or was the product of an intervening independent act of the defendant's free will, or that the connection between the unlawful act and the evidence sought to be used has become so attenuated as to dissipate the taint.

Whatever the merits of defendant's theory, the facts necessary to support its application are not present in the record, nor has the prosecution been called upon to respond. We see no reason why any such theory could not have been presented contemporaneously with the motion to suppress the other evidence, as required by People v. Childers, 20 Mich.App. 639, 174 N.W.2d 565 (1969); People v. Matthews, 22 Mich.App. 619, 178 N.W.2d 94 (1970). Consequently, we see no reason to delve into the intricacies of defendant's unsupported theory. 2

We note, by way of dictum, that we are Not convinced the trooper acted illegally in the first place. He was alone on the turnpike with two men obviously in a hurry to go somewhere in a car for which they could produce no registration or reasonable explanation of possession. Under such circumstances the trooper could reasonably believe the car stolen. People v. Marshall, 25 Mich.App. 376, 181 N.W.2d 578 (1970); People v. Ceccone, 260 Cal.App.2d 866, 67 Cal.Rptr. 499 (1968); Commonwealth v. Dussell, 214 Pa.Super. 1, 248 A.2d 857 (1969); People v. James, 1 Cal.App.3d 645, 81 Cal.Rptr. 845 (1969); People v. Mermuys, 2 Cal.App.3d 1083, 82 Cal.Rptr. 902 (1969); Sewell v. United States, 406 F.2d 1289 (CA 8, 1969). See also In re Winkle, 372 Mich. 292, 125 N.W.2d 875 (1964). The initial search of the interior of the car which produced the weapons might have been justified as a search incident to a felony arrest, but, in any event, was motivated by the officer's concern for his own safety in the event he allowed the suspects to return to the car and accompany him, but under their own power, to the nearest police station to post bond.

The resultant inspection of the impounded vehicle for inventory purposes pursuant to police regulations can not earily be classed as a search in the constitutional sense for that implies a 'prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way.' Welta v. State, 431 P.2d 502, 505 (Alaska, 1967). Rather, it was done for the purpose of securing property...

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    ...892 (1975); State v. Achter, 512 S.W.2d 894 (Mo.Ct.App.1974); Bennett v. State, 507 P.2d 1252 (Okl.Cr.App.1973); People v. Willis, 46 Mich.App. 436, 208 N.W.2d 204 (1973); State v. All, 17 N.C.App. 284, 193 S.E.2d 770, cert. denied, 414 U.S. 866, 94 S.Ct. 51, 38 L.Ed.2d 85 (1973); Godbee v.......
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    • May 23, 1988
    ...search for Fourth Amendment purposes. See, e.g., People v. Sullivan, supra, [29 N.Y.2d] at 77 , 272 N.E.2d, at 469; People v. Willis, 46 Mich.App. 436, 208 N.W.2d 204 (1973); State v. Wallen, 185 Neb. 44, 49-50, 173 N.W.2d 372, 376, cert. denied, 399 U.S. 912 [90 S.Ct. 2211, 26 L.ED.2d 568]......
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    ...State v. Achter, 512 S. W. 2d 894 (Mo. Ct. App. 1974) ; Bennett v. State, 507 P. 2d 1252 (Okla. Crim. App. 1973) ; People v. Willis, 46 Mich. App. 436, 208 N. W. 2d 204 (1973) ; State v. All, 17 N. C. App. 284, 193 S. E. 2d 770, cert. denied, 414 U.S. 866 [94 S.Ct. 51, 38 L.Ed.2d 85] (1973)......
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