People v. Whalen

• Decision Date: 18 December 1973
• Docket Number: No. 9,9
• Citation: 390 Mich. 672,213 N.W.2d 116
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Joseph WHALEN, Defendant-Appellant. 390 Mich. 672, 213 N.W.2d 116
• Court: Michigan Supreme Court

Page 116

213 N.W.2d 116

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Joseph WHALEN, Defendant-Appellant.

No. 9.

390 Mich. 672, 213 N.W.2d 116

Supreme Court of Michigan.

Dec. 18, 1973.

Harvey A. Koselka, Pros. Atty., Adrian, for plaintiff-appellee; Prosecuting Attorneys Appellate Service, Thomas R. Lewis, Director, James D. Hunter, Staff Atty., Detroit, of counsel on brief.

Neil H. Fink, Detroit, for defendant-appellant.

Before the Entire Bench.

T. M. KAVANAGH, Chief Justice.

In an unpublished opinion, People v. Whalen, No. 10764 (1972) the Court of Appeals affirmed this defendant's convictions of breaking and entering ¹ and larceny from a building. ² We granted leave, 388 Mich. 770 (1972) to consider three issues:

1. Whether due to the warrantless stop and search of the automobile in which defendant was a passenger, which stop was part of a comprehensive scheme to search all automobiles on the highway--a road block--defendant's Fourth Amendment right to be free from unreasonable search and seizure had been violated;

2. Whether error was committed in allowing the prosecutor to impeach defendant's alibi witnesses on matters irrelevant to the instant case, ostensibly for the purpose of showing their personal bias and prejudice towards the person of the prosecutor; and

3. Whether the prosecutor wrongfully commented in his closing argument on the defendant's right not to testify on his own behalf.

FACTS

In March of 1969 a jewelry store in Adrian, Michigan was forcibly entered and jewelry, cash and other items taken. A co-owner of the store surprised 3 men in the act, and they forced their way past him to make their escape. A 12-year old witness saw 4 or 5 men get away in a large white 'Cadillac.' A radio report was issued by the local police, advising of the robbery and asking officers to look for a large white car, possibly a Cadillac, with 3 dark complected, possibly Mexican subjects in the car, one of whom was wearing a tan jacket.

Pursuant to the radio report, the State Police decided to set up a road block on US-223 just north of the Ohio border. Accordingly, one patrol car, which was in the vicinity in conjunction with a traffic accident, was ordered to proceed to that location and set up a roadblock. The patrol car proceeded south on Head-O-Lake Road and stopped at the intersection of that road and US-223 for a stop sign. Upon stopping, the two officers within the car noticed a white Continental and a dark Corvette traveling south on US-223 toward the Ohio border. The officers pulled out on to US-223 and pulled alongside these two vehicles, shining their flashlight into the faces of the drivers to get a better look. The driver of the Continental was dark complected and was wearing a tan jacket. The officers indicated for the drivers of the vehicles to stop, and after some confusion and difficulty, both cars pulled to the side of the road just past the Ohio line.

The driver of the Corvette was checked out and released by one officer while the other patrolman questioned the driver of the Continental, who had gotten out of his car to speak with him. Walking back to the Continental, after releasing the Corvette, the first officer shone his flashlight into the interior of the white Continental. His beam revealed the defendant lying on the rear seat, and the third defendant on the seat in the front of the vehicle. Around the defendant was scattered open jewelry boxes, money, a wastebasket full of jewelry and other articles. All three men were arrested and the car searched. The defendant was tried and convicted.

ISSUE I--The Fourth Amendment Claim

Appellant asserts that under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) the evidence obtained by the police as a result of the search of the vehicle in which he was riding should be suppressed as being the result of an illegal search and seizure. The search in question was conducted without a warrant. Since the police were going to search all vehicles traveling along US-223, he asserts that probable cause sufficient to stop and search any one particular vehicle must therefore be lacking. The officers candidly admitted that this vehicle was stopped as part of a systematic road block.

As stated by the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) the basic constitutional rule in this area is that searches conducted outside the judicial process, without prior approval by judge or magistrate, are Per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well delineated exceptions.

However, before the above rule can be applied, and the exceptions to it come into play, it first must be established from the facts before the Court, that a search did in fact take place for Fourth Amendment purposes.

From Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) there has evolved a test, applied by the Courts, to determine whether or not a search, by Fourth Amendment standards, has indeed taken place. Simply put, if an individual has a reasonable expectation of privacy in the area searched, or the materials seized, a search has been conducted. 'What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.' Katz, supra, 351, 88 S.Ct. 511.

Thus seizure of objects within the plain view of an officer, lawfully in a place where he had a right to be, are not proscribed by the Constitution. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927). This plain view doctrine has been applied by this Court to cases involving the stopping and subsequent 'search' of a moving vehicle. In People v. Kuntze, 371 Mich. 419, 124 N.W.2d 269 (1963), officers in a scout car were proceeding to a point west of Daggett, Michigan to investigate a report that occupants of a car were shining deer in a field and that a shot had been heard. Coming upon the defendant's vehicle within the village of Daggett, the officers becoming suspicious, pulled the defendant's car over to the side of the road. Walking over to the stopped vehicle, the officers ordered the passengers out of the car, shone a flashlight into the interior, and saw the leg of a deer protruding out from under the front seat. This Court in deciding the Fourth Amendment question present in that case, stated:

'Trooper Righter's first observation of the deer leg protruding from underneath the front seat of defendants' car Was not a search as that term normally is defined in search and seizure cases.' People v. Kuntze, Supra, p. 425, 124 N.W.2d p. 273.

Although this case was decided before the Katz decision, Supra, it has been followed by our Court, and the rule it espouses followed by our Nation's highest Court in cases following that decision. See People v. Charles C. Walker, 385 Mich. 565, 189 N.W.2d 234 (1971); People v. Tisi, 384 Mich. 214, 180 N.W.2d 801 (1970) (citing as authority People v. Kuntze, Supra); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

At oral argument, the appellant asserted that the plain view doctrine should not be applied to this case, as the 'view' was obtained solely with the aid of the officer's flashlight. Without the aid of the flashlight, he asserts, the officer could not have seen into the interior of the vehicle and thus the defendant and the jewelry were not, as the Court noted in Kuntze, supra, observable by the 'exercise of his own senses.' (371 Mich. p. 427, 124 N.W.2d p. 273).

As noted above, Kuntze involved a search with the aid of a flashlight. The Court ruled that search legal under the plain view doctrine. The Court also notes that this very issue has recently been decided and discussed in several of the Federal Circuit Courts. In United States v. Booker, 461 F.2d 990, 992 (C.A.6, 1972) the court ruled that 'Since it would not constitute a search for the officer to observe objects in plain view in the automobile in daylight, it ought not to constitute a search for him to flash a light in the car as he was walking past it in the night season.'

Also, in Marshall v. United States, 422 F.2d 185, 189 (C.A.5, 1970) the court stated:

'We do not hold, of course, that Every use of a flashlight is not a search. A probing, exploratory quest for evidence of crime is a search governed by Fourth Amendment standards whether a flashlight is used or not. The mere use of a flashlight, however, does not magically transmute a non-accusatory visual encounter into a Fourth Amendment search. When the circumstances of a particular case are such that the police officer's observation would not have constituted a search had it occurred in daylight, then the fact that the officer used a flashlight to pierce the nighttime darkness does not transform his observation into a search. Regardless of the time of day or night, the plain view rule must be upheld where the viewer is rightfully positioned, seeing through eyes that are neither accusatory nor criminally investigatory. The plain view rule does not go into hibernation at sunset.'

It does not appear to us now that our original holding in Kuntze, supra, was erroneous, or that the rule we espoused then has changed over the last 10 years. We too feel that the plain view rule does not slink away at sunset to emerge again at the break of day. United States v. Lee, Supra.

But, as we noted in People v. Charles D. Walker, 385 Mich. 565, 189 N.W.2d 234 (1971) before the rule can be invoked, it must be shown that the officer was in a place where he had a right to be. To answer the question of whether or not the officer in the instant case was rightfully positioned, this Court must now decide whether the police could lawfully stop the vehicle in question under the circumstances. If they could, the question is answered in the affirmative.

The leading case involving the right of the police to stop an...