People v. Dugan

• Decision Date: 16 December 1980
• Docket Number: Docket No. 50828
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Lee DUGAN, Defendant-Appellant. 102 Mich.App. 497, 302 N.W.2d 209
• Court: Court of Appeal of Michigan — District of US

Page 209

302 N.W.2d 209

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Lee DUGAN, Defendant-Appellant.

Docket No. 50828.

102 Mich.App. 497, 302 N.W.2d 209

Court of Appeals of Michigan.

Dec. 16, 1980.

Released for Publication March 3, 1981.

[102 MICHAPP 500] George C. Dovas, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, Appellate Chief, Asst. Pros. Atty., Anne B. Wetherholt, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P. J., and KAUFMAN and MAHER, JJ.

MAHER, Judge.

Defendant was convicted, after a jury trial, of receiving or concealing stolen property over the value of $100. M.C.L. § 750.535; M.S.A. § 28.803. He was sentenced to a prison term of from 1 to 5 years, and appeals by right.

Defendant raises four issues on appeal, one of which requires reversal. Prior to trial, defendant brought a motion to suppress evidence of the snowblower which was the subject of his troubles with the law. The motion alleged that the snowblower was seized pursuant to a warrantless entry into his garage. The motion was denied. Defendant renewed his motion on the first day of trial, just before the start of the voir dire, but the motion was again denied. Although the record on appeal does not contain the transcript of the suppression hearing, a motion to suppress may properly be [102 MICHAPP 501] based on the testimony given at the preliminary examination. See People v. Walker, 385 Mich. 565, 573, 189 N.W.2d 234 (1971); People v. Williams, 368 Mich. 494, 499-500, 118 N.W.2d 391 (1962), cert. den. 373 U.S. 909, 83 S.Ct. 1297, 10 L.Ed.2d 411 (1963); People v. Kaigler, 368 Mich. 281, 297-299, 118 N.W.2d 406 (1962). A trial court's ruling on a motion to suppress will not be disturbed unless clearly erroneous. People v. Grimmett, 97 Mich.App. 212, 293 N.W.2d 768 (1980). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the firm conviction that a mistake was made. People v. Goss, 89 Mich.App. 598, 601, 280 N.W.2d 608 (1979).

In the instant case, Officer Gregory Thompson testified that on the morning of January 29, 1978, he contacted Mr. Charles DeBruyne who reported that a snowblower had been taken from his garage. Mr. DeBruyne reported further that he had followed a set of snowblower tracks from his garage, through an alley, to the rear of a house on East Outer Drive. Officer Thompson testified that he then followed the tracks and an accompanying set of footprints to the rear of the house he had been told about, at which point the tracks and footprints continued through a hole in the fence at the rear of the house and into the garage. Officer Thompson then testified that he walked around to the front of the house where he observed a set of footprints leading from the garage to the front door. He then entered onto the property and went to the open garage where he observed a snowblower that matched the description given by Mr. DeBruyne. On checking further, he verified that the serial number on the snowblower matched the serial number given by Mr. DeBruyne. The officer testified that he then returned to the front of the [102 MICHAPP 502] house where he radioed for his sergeant. Shortly thereafter, the defendant exited from the front of the house, at which time Officer Thompson asked the defendant to stop and told the defendant that he wanted to talk to him. The defendant replied that if the officer did not have a search warrant he should stay off the property and then headed toward the garage. Officer Thompson again entered onto the property, following the defendant and ordering him to stop. Officer Thompson asked the defendant where he was going, to which the defendant replied that he was going to the garage to get his snowblower. Officer Thompson then stepped between the defendant and the snowblower. The defendant on several occasions demanded that the officer leave the property unless he had a warrant and the officer replied several times that he did not need a warrant because he had probable cause and was protecting a crime scene. Defendant then went into the house and returned with another young man, who the officer estimated to be between 15 and 17 years of age. Defendant then stated that they were going into the garage but Officer Thompson would not allow them to touch the snowblower. The officer had radioed for assistance, which arrived shortly. These officers stayed in the garage while Officer Thompson went to the front of the house to speak with his sergeant, who had also arrived. The sergeant then spoke with the defendant's mother and Officer Thompson loaded the snowblower into a scout car. The defendant was subsequently arrested and charged with receiving or concealing stolen property over the value of $100.

It is uncontested that there was no search warrant in the instant case. Both the Michigan and United States Constitutions protect against unreasonable[102 MICHAPP 503] searches and seizures, Const.1963, art. 1, § 11, U.S.Const., Am. IV, and it has been held that a warrantless search and seizure is per se unreasonable unless shown to fall within one of the various exceptions to the warrant requirement. People v. Whalen, 390 Mich. 672, 677, 213 N.W.2d 116 (1973). On appeal, the prosecution seeks to justify the search of defendant's garage and the subsequent seizure of the snowblower on the basis of the "exigent circumstances" exception and under the "plain view" doctrine.

The "exigent circumstances" exception provides that when the police have probable cause to believe that a search of a certain place will produce specific evidence of that crime (the foundation requirements for issuance of a search warrant), there is no need for a warrant if the police also have probable cause to believe that an immediate warrantless search is necessary in order to (1) protect the officers or others, (2) prevent the loss or destruction of evidence, or (3) prevent the escape of the accused. People v. Harris, 95 Mich.App. 507, 510, 291 N.W.2d 97 (1980). See United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); People v. Plantefaber, 91 Mich.App. 764, 770, 283 N.W.2d 846 (1979). The rationale of the exception is clear; when the police have the probable cause necessary to secure a warrant, but circumstances make it impossible for them to obtain the warrant in time, then it is "reasonable" under the Fourth Amendment to conduct a search and to seize evidence or contraband. See United States v. Guidry, 534 F.2d 1220, 1222-1223 (CA 6, 1976).

In addition to the exceptions to the Fourth Amendment's warrant requirement, it has often been held that objects within the "plain view" of a police officer, observed from a place where the [102 MICHAPP 504] officer has a lawful right to be, may be legally seized so long as the officer has probable cause to believe the objects are evidence or implements of a crime. People v. Young, 89 Mich.App. 753, 757-758, 282 N.W.2d 211 (1979), lv. den. 407 Mich. 877 (1979), cert. den. 445 U.S. 927, 100 S.Ct. 1313, 63 L.Ed.2d 760 (1980). See Coolidge v. New Hampshire, 403 U.S. 443, 464-473, 91 S.Ct. 2022, 2037-2042, 29 L.Ed.2d 564 (1971). To come within the plain view doctrine, the discovery must also be inadvertent. If the discovery is anticipated the seizure cannot be justified under the plain view doctrine. Coolidge v. New Hampshire, supra, 470-471, 91 S.Ct. 2040-2041; People v. Heard, 65 Mich.App. 494, 498-499, 237 N.W.2d 525 (1975), lv. den. 396 Mich. 827 (1976). The plain view doctrine allows such seizures because, as a matter of Fourth Amendment law, no "search" has taken place when the objects are observed by the police from a place in which they have the right to be. People v. Ridgeway, 74 Mich.App. 306, 311, 253 N.W.2d 743 (1977), lv. den. 401 Mich. 831 (1977).

Under the facts and circumstances of the instant case neither exigent circumstances nor plain view can be used to justify the search of defendant's garage and the subsequent seizure of the snowblower. When Officer Thompson arrived at the rear of defendant's property he undoubtedly had probable cause to believe that a crime had been committed and that the snowblower, the evidence of the crime, could be found on defendant's property. At this juncture he should have sought a search warrant for the premises. The prosecution argues, however, that exigent circumstance arose when the defendant exited from his house and headed for the garage. This argument ignores the fact that at the time defendant headed for the garage Officer Thompson had already entered onto [102 MICHAPP 505] the property and conducted a search of the garage. There were no exigent circumstances at the time this search was conducted and the subsequent exigency may well have been the product of the first illegal entry. Probable cause, no matter how strong, does not alone justify a warrantless intrusion onto private property. If the officer had at the outset requested a search warrant and remained outside the property until it arrived a warrantless search might then have been justified by exigent circumstances if defendant attempted to remove the snowblower. Because no such exigency existed at the time of the search in the instant case, however, the search and subsequent seizure of the snowblower cannot be justified on these grounds. ¹

The prosecution's alternative basis for seeking to...