312 N.W.2d 415 (Mich.App. 1981), 51227, People v. McIntosh

Docket Nº:Docket No. 51227.
Citation:312 N.W.2d 415, 110 Mich.App. 139
Opinion Judge:Before DANHOF, C J, and KELLY and SULLIVAN
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark W. McINTOSH, Defendant-Appellant.
Attorney:[110 Mich.App. 140] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Pros. Atty., and Thomas C. Nelson, Asst. Atty. Gen., for the People. William A. Benz, Adrian, for defendant-appellant.
Judge Panel:Before DANHOF, C. J., and KELLY and SULLIVAN, JJ.
Case Date:October 06, 1981
Court:Court of Appeals of Michigan
 
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Page 415

312 N.W.2d 415 (Mich.App. 1981)

110 Mich.App. 139

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Mark W. McINTOSH, Defendant-Appellant.

Docket No. 51227.

Court of Appeals of Michigan.

October 6, 1981

Released for Publication Nov. 18, 1981.

[110 Mich.App. 140] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Pros. Atty., and Thomas C. Nelson, Asst. Atty. Gen., for the People.

William A. Benz, Adrian, for defendant-appellant.

Before DANHOF, C. J., and KELLY and SULLIVAN, JJ.

KELLY, Judge.

Defendant, Mark W. McIntosh, appeals as of right from his plea-based conviction for

Page 416

receiving and concealing stolen property, M.C.L. § 750.535, M.S.A. § 28.803. On appeal, defendant contests as error the trial court's denial of his motion to suppress a stolen Nikon camera which was [110 Mich.App. 141] discovered during an allegedly invalid inventory search of defendant's automobile.

The people's appellate brief acknowledges that at the time he pled guilty "(d)efendant specifically reserved his right to challenge on appeal the court's ruling on his motion to suppress". The people acquiesced in this procedure below and do so on appeal. We treat the issue on the merits for the reasons outlined in Judge Cavanagh's majority opinion in People v. Ricky Smith, 85 Mich.App. 32, 270 N.W.2d 697 (1978).

On the night of December 7, 1979, two officers of the Adrian Police Department, acting pursuant to an informant's tip, positioned themselves across the street from a gas station in expectation of an attempted burglary. At approximately 2:30 a. m., the officers observed a light-colored vehicle stop in front of the station, discharge a passenger and proceed to a stop in the St. Stevens Church parking lot located nearby. As the passenger attempted to gain entry to the station, one of the officers arrested him. The second officer (Officer Gary Lindsay) went to the lot where defendant was seated in his car, directed the defendant to get out of the car and placed him under arrest.

Testimony recorded at a hearing on a motion to suppress regarding subsequent events was conflicting. Officer Lindsay testified to having conducted an external search of defendant's car by use of a flashlight. He said that during the search he noticed a multicolored strap protruding from under the front seat of defendant's car. Lindsay could not recall whether he pulled on the strap and thus discovered the camera or looked under the seat to find it.

A third officer, Lawrence Ost, testified that Officer Lindsay did not enter or search defendant's [110 Mich.App. 142] vehicle. Deputy Ost stated that, upon looking into defendant's car, he noticed part of a telephoto lens. Ost then opened the car door, removed the camera and recorded the camera's identification number. Before towing the vehicle to storage, Officer Joseph Nino conducted an inventory search of its contents. Nino did not...

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