People v. Defillippo, Docket No. 77-20
| Citation | 262 N.W.2d 921,80 Mich.App. 197 |
| Decision Date | 06 December 1977 |
| Docket Number | Docket No. 77-20 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary DeFILLIPPO, Defendant-Appellant. 80 Mich.App. 197, 262 N.W.2d 921 |
| Court | Court of Appeal of Michigan — District of US |
[80 MICHAPP 198] Defenders' Office-Legal Aid and Defender Association of Detroit by Thomas M. Loeb and Thomas E. Binion, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Asst. Pros. Atty., Timothy A. [80 MICHAPP 199] Baughman, Asst. Pros. Atty., for plaintiff-appellee.
Before T. M. BURNS, P. J., R. B. BURNS and BROWN, * JJ.
Defendant was charged with possession of a controlled substance, phencyclidene. M.C.L.A. § 335.341(4)(b); M.S.A. § 18.1070(41)(4)(b). Prior to trial he moved to suppress evidence obtained in a search of his person and to quash the information. The motion was denied and we granted an interlocutory appeal.
The facts indicate that two Detroit police officers received a radio call to investigate two allegedly drunken persons in an alley. Upon their arrival at the alley, the officers found defendant and a companion. The intoxicated companion was arrested for disorderly conduct. Defendant did not appear intoxicated, but when he was asked for his identification, he replied that he was Sergeant Mash, a Detroit police officer. When asked for his badge number, defendant replied that he was working for Sergeant Mash. Defendant was then arrested for failure to produce identification, handcuffed, and searched. Marijuana was found immediately, and phencyclidene was found later at the station in a pack of defendant's cigarettes.
It is defendant's theory that the Detroit ordinance which allows a police officer to arrest an individual for failure to produce identification is unconstitutional, that the search incident to his [80 MICHAPP 200] arrest was therefore unlawful, and that the evidence must be suppressed. It is plaintiff's theory that we should avoid the issue of the constitutionality of the ordinance, because even if the ordinance is unconstitutional, the police officer's good faith reliance thereon would preclude application of the exclusionary rule. The purpose of the exclusionary rule is to deter unlawful police conduct, and "where official action was pursued in complete good faith, the deterrence rationale loses much of its force", Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182, 194 (1974). See United States v. Carden, 529 F.2d 443 (CA 5, 1976), United States v. Kilgen, 445 F.2d 287 (CA 5, 1971).
We cannot subscribe to plaintiff's theory. If, as defendant argues, the ordinance is void for vagueness, subject to arbitrary and discriminatory application, and used as a pretext for unlawful search and seizure, suppression of evidence obtained pursuant to a search incident to arrest thereon will deter unlawful police conduct, and the exclusionary rule should therefore apply. See Powell v. Stone, 507 F.2d 93, 98 (CA 9, 1974), rev'd on other grounds, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1174-1175 (CA 2, 1974), Hall v. United States, 148 U.S.App.D.C. 42, 52-53, 459 F.2d 831, 841-842 (1972).
At the time of defendant's arrest, Detroit Municipal Code § 39-1-52.3 read as follows:
The ordinance has been slightly amended since defendant's arrest, but there are no significant changes. 1
The ordinance is void for vagueness.
First, it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden * * *." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954), see Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). An innocent citizen cannot generally know when a police officer has reasonable cause to believe that his behavior warrants further investigation for criminal activity, and therefore cannot know when refusal to identify himself will be a crime. Nor does the ordinance define which of today's numerous forms of identification will satisfy a police officer's desire for verifiable documents. This lack of specificity "encourages arbitrary and erratic arrests", Papachristou v. City of Jacksonville, supra, by delegating to police officers the determination of who must be able to produce what kind of identification.
Second, the ordinance seeks to make criminal, conduct which is innocent. Papachristou v. City of Jacksonville, supra; Detroit v. Sanchez, 18 Mich.App. 399, 401-402, 171 N.W.2d 452, 453 (1969). ...
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