People v. Castle

• Decision Date: 05 August 1983
• Docket Number: Docket No. 59957
• Citation: 337 N.W.2d 48,126 Mich.App. 203
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael B. CASTLE, Defendant-Appellant. 126 Mich.App. 203, 337 N.W.2d 48
• Court: Court of Appeal of Michigan — District of US

Page 48

337 N.W.2d 48

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael B. CASTLE, Defendant-Appellant.

Docket No. 59957.

126 Mich.App. 203, 337 N.W.2d 48

Court of Appeals of Michigan.

Submitted March 1, 1983.

Decided June 6, 1983.

Released for Publication Aug. 5, 1983.

[126 MICHAPP 204] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad Sindt, Pros. Atty., and Michael J. Berezowsky, Asst. Pros. Atty., for the People.

State Appellate Defender by Rolf E. Berg, Ann Arbor, for defendant-appellant on appeal.

Before BEASLEY, P.J., and V.J. BRENNAN and WAHLS, JJ.

V.J. BRENNAN, Judge.

After a jury trial, the defendant was found guilty of breaking and entering an unoccupied dwelling, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. He was sentenced to 60 days in the county jail and 3 years probation. Defendant appeals as of right.

Defendant claims that the trial court erred by admitting into evidence a gun found during an [126 MICHAPP 205] inventory search of the defendant's car. Initially, the defendant claimed that he was denied effective assistance of counsel because his attorney failed to object to the admission of the gun into evidence. However, the parties have since stipulated that defense counsel was estopped from raising the issue at trial because, in a related case, before the same trial judge, the validity of the inventory search was upheld and the gun was found to be admissible into evidence. The parties have also stipulated that defendant's failure to object to the gun's seizure does not preclude appellate review of this issue.

This case arose from a break-in at the Parkview Tavern in Battle Creek that occurred on June 5, 1980. Some liquor, food, money and a .38-caliber handgun were missing from the bar. The thief evidently escaped by cutting the bolt off of a padlock securing the side door. The padlock, bolt cutters and a flashlight were found lying on the floor next to the open door. These items, along with a bottle found in the vicinity, were all dusted for latent fingerprints. A print found on the flashlight matched one of the defendant's prints.

On June 7, 1980, defendant was stopped while driving his car and arrested on two outstanding warrants. An inventory search disclosed a revolver identified at trial as the one belonging to the owner of the bar. Defendant was charged with the breaking and entering of the bar and with carrying a concealed weapon. These charges were not tried together. However, both cases were heard before the same trial judge. In the carrying a concealed [126 MICHAPP 206] weapon matter, a hearing was held regarding the validity of the search. Defendant's motion to suppress was denied. Subsequently, the defendant pled guilty to the carrying a concealed weapon charge. The trial in the instant case was held after the guilty plea was taken.

The only witness called at the suppression hearing was Ronald Leo Hattis, the arresting police officer. Hattis testified that he stopped the defendant because he had two felony warrants outstanding. These warrants were issued prior to defendant's involvement in the present case. Hattis watched the defendant and another person, Clarence Bolden, get into defendant's car in a residential area. He followed the car out of the residential area and stopped the defendant in an industrial area bordered by a number of apartment complexes. Defendant was arrested.

Prior to speaking with the defendant, Hattis asked Bolden if he had a valid operator's license. The officer's reason for asking Bolden this question was, "Because I was going to ask Mr. Castle if he wanted to release his vehicle." When the officer found out that Bolden did not have a license, he impounded defendant's car. It was the subsequent inventory search of the car that disclosed the revolver. The officer used a standard inventory form during the search and the contents of the car were emptied into an envelope. The officer remained with the car until it was towed. Bolden was allowed to leave the scene.

On cross-examination, Hattis revealed that he was not sure whether or not the car was legally parked. He was, however, sure that the car posed no traffic hazard. The officer also testified that defendant asked to have his vehicle locked and parked on the street sometime after the vehicle had been impounded. He further testified that he impounded the vehicle because there was nobody present to take custody of it and it would have been left unattended on a city street. The decision [126 MICHAPP 207] to impound a vehicle is left with the discretion of the arresting officer and it was his decision to impound the vehicle.

Following this testimony, the trial court ruled that the impoundment was not a pretext to justify the search. The court also found the search was necessary to protect the property and to protect the police against unfounded claims or disputes over lost or stolen property.

A trial court's ruling at a suppression hearing will not be overturned unless that ruling is found to be clearly erroneous. People v. Rocha, 110 Mich.App. 1, 10, 312 N.W.2d 657 (1981), lv. den. 413 Mich. 912 (1981); People v. Erskin, 92 Mich.App. 630, 642, 285 N.W.2d 396 (1979); contra, People v. McIntosh, 110 Mich.App. 139, 146, 312 N.W.2d 415 (1981) (abuse of discretion). Once a warrantless search has been shown, the state bears the burden of showing that the search is within an exception to the rule. People v. Reed, 393 Mich. 342, 362, 224 N.W.2d 867 (1975); People v. White, 392 Mich. 404, 221 N.W.2d 357 (1974).

In People v. Dugan, 102 Mich.App. 497, 503, 302 N.W.2d 209 (1980), this Court found: "[a] warrantless search and seizure is per se unreasonable unless shown to fall within one of the various exceptions to the warrant requirement." See also, People v. Whalen, 390 Mich. 672, 677, 213 N.W.2d 116 (1973). There are six exceptions to the warrant requirement recognized by the Court: (1) searches incident to lawful arrests; (2) automobile searches and seizures; (3) plain view doctrine; (4) consent; (5) stop and frisk type searches; and (6) hot pursuit. See People v. Nash, 110 Mich.App. 428, 458, 313 N.W.2d 307 (1981) (J.I. Kallman, J., concurring partially), lv. gtd. 414 Mich. 869 (1982).

This Court has recognized the validity of an [126 MICHAPP 208] inventory search of an automobile when impoundment of the vehicle is necessary. Rocha, supra, 110 Mich.App. p. 11, 312 N.W.2d 657; People v. Kramer, 103 Mich.App. 747, 760-762, 303 N.W.2d 880 (1981).

However, this Court has struck down inventory searches when it has concluded that the inventory was a mere pretext for an investigation rather than a normal police procedure which could not be upheld under the Supreme Court's decision of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). See People v. Siegel, 95 Mich.App. 594, 605, 291 N.W.2d 134 (1980). In Siegel, the defendant's car was parked on private property, the driveway of a vacant house, with the doors locked. The defendants were apparently on the premises to examine the abandoned house because one of them was considering buying it. The Siegel Court found no valid reason to impound a locked automobile which...