People ex rel. Winkle v. Bannan, 58

• Decision Date: 03 February 1964
• Docket Number: No. 58,58
• Parties: PEOPLE of the State of Michigan, ex rel. George H. WINKLE, Petitioner, v. William H. BANNAN, Warden of the State Prison, Southern Michigan, Jackson, Michigan, Respondent.
• Court: Michigan Supreme Court

Page 875

125 N.W.2d 875

372 Mich. 292

PEOPLE of the State of Michigan, ex rel. George H. WINKLE, Petitioner, v. William H. BANNAN, Warden of the State Prison, Southern

Michigan, Jackson, Michigan, Respondent.

No. 58.

Supreme Court of Michigan.

Feb. 3, 1964.

Walter A. Kurz, Detroit, for petitioner.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald T. Kane, Asst. Atty. Gen., for respondent.

Leo A. Farhat, Chairman, Committee on Criminal Jurisprudence, Samuel J. Torina, Thaddeus F. Hamera, Lansing, for State Bar of Michigan Committee on Criminal Jurisprudence, amici curiae.

T. Harrison Stanton, Jackson, Gilbert M. Friment. Detroit, Nedwin L. Smokler, Chairman Sub-Committee of Civil Liberties Committee of State Bar of Michigan, Ferndale, for Civil Liberties Committee of State Bar of Michigan, amici curiae.

Before the Entire Bench.

KELLY, Justice.

Petitioner, George H. Winkle, was convicted by the Lenawee county circuit court on January 31, 1958, for carrying a concealed weapon and having possession of burglar tools. Winkle waived jury trial and moved to suppress the seized evidence, claiming an illegal search and seizure. Winkle's motion to suppress was denied and he was convicted of both counts and sentenced tenced to 4 to 5 years on the concealed weapon count and to 5 to 10 years on the possession of burglar tools count. The conviction and sentences were affirmed on January 4, 1960, by this Court in People v. Winkle 358 Mich. 551, 100 N.W.2d 309.

Thereafter Winkle filed for habeas corpus and certiorari in this Court, and the petition was denied. A petition for certiorari was filed in the United States supreme court on May 12, 1961, seeking review of this Court's order denying habeas corpus. The United States supreme court granted Winkle's motion for leave to proceed in forma pauperis and granted certiorari November 6, 1961. On June 19, 1961, the United States supreme court decided the case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and the Attorney General of Michigan thereafter filed a response and suggested the cause be remanded to this Court for decision in the light of the Mapp Case.

Since appeal petitioner Winkle has been free on bond.

Upon receipt of the mandate from the United States supreme court, this Court on December 11, 1961, vacated our earlier denial of habeas corpus and certiorari and ordered the cause to be rebriefed and submitted to us for reconsideration. Subsequent to oral argument, this Court further requested briefs by the committees on criminal jurisprudence and civil liberties of the State Bar of Michigan, as parties amici curiae.

The following facts are undisputed by both petitioner and respondent, and are accordingly adopted:

'On July 21, 1957, at approximately 2:00 a. m., petitioner George H. Winkle (hereinafter called Winkle), accompanied by Lee Casteel, was traveling west on US-223, south of the city of Adrian, Michigan. As they approached the intersection of US-223 and M-52, the traffic light regulating the intersection turned amber, Winkle came to a stop on the corner of US-223 and M-52. Winkle waited for the traffic to clear on M-52, the north and south roadway, and then before the traffic light turned green made a left hand turn on to M-52 and proceeded south for approximately 100 feet and made another left hand turn into the driveway of the Rock Inn Motel.

'Winkle had a few minutes prior, caused a telephone call to be made to the Rock Inn Motel to determine the availability of accommodations of the particular night. As the Winkle car proceeded up the drive of the Rock Inn Motel they were approached from behind by a Michigan State Police patrol car carrying two Michigan State Troopers. The officers honked their horn twice as they approached the Winkle car and the Winkle car came to a stop, in the driveway, 20 feet east of the office of the Rock Inn Motel. Mr. Winkle got out of his car and proceeded to walk towards the Michigan State Police car. The driver of the State Police car, Trooper Robert Golm, walked towards the Winkle car and met Winkle somewhere in the vicinity of the rear bumper of the Winkle car.

'Trooper Golm requested Winkle's driver's license, and informed Winkle that they were stopping his car for disobeying the red light. Winkle displayed Trooper Golm a driver's license bearing the name of George Henry Winkle. He also displayed a certificate of registration for the automobile which he was driving, in the name of Henry Williams. Winkle explained the car was his brother-in-law's. Therefore the name on the registration was different than on his driving license. Trooper Golm also requested information from Winkle as to his destination. While this conversation was occurring between Trooper Golm and Winkle, the other Trooper, Anthony Pandol, was talking to Lee Casteel, the other occupant of the car. The Troopers then switched, Trooper Golm going over to talk to Casteel and Trooper Pandol going over to talk to Winkle.

'Shortly after this, Trooper Golm returned and talked with Winkle and had by this time been given conflicting statements as to destination, purposes, etc.'

At this juncture, petitioner contends, Trooper Pandol walked up to the Winkle car, without making an arrest, without knowledge of the conflicting statements made to Trooper Golm, and proceeded to make a search of the trunk of the vehicle. Respondent, however, asserts that information as to conflicting stories had either been exchanged by the troopers prior to opening the trunk or that both officers had obtained the conflicting stories separately and discussed the case prior to search. In this regard respondent refers to Trooper Golm's testimony as to knowledge he had Pandol had at the moment prior to search: 'Well, at the time I thought that something was strange, because of the two conflicting stories that they had given us.'

The record establishes that Winkle said he was going on a 2 or 3 weeks fishing vacation around Detroit and Pontiac. He said that the name of his partner was 'Philbrick'; that he (Winkle) lived in a motel around Indianapolis, Indiana, and his partner lived in an apartment on Central street.

Casteel (Philbrick) told the trooper he was going to Toledo to see some girls; that he had to be back in Indianapolis on Monday, and that he and Winkle lived together in an apartment on Central street.

A search of the trunk yielded numerous burglar tools. ¹ Winkle and his partner were then handcuffed and placed in the police car. A detailed search of the vehicle also disclosed a concealed 38-caliber revolver.

When this case was first before us on leave to appeal in 358 Mich. 551, 100 N.W.2d 309, our decision affirming the trial court rested solely on the validity of our Constitutional amendment, Art. 2, § 10, and no determination was made as to the reasonableness of the search.

Three questions will be answered in this opinion, namely:

1.--Was the search and seizure an unreasonable and unlawful search?

2.--Is Mapp v. Ohio, supra, applicable retrospectively?

3.--Is the search and seizure exemption provision contained in Art. 2, § 10, of the Michigan Constitution, as amended, unconstitutional and void and repugnant to and conflict with the United States Constitution by reason of Mapp v. Ohio, thus requiring this Court to overrule its January 4, 1960, decision in People v. Winkle, 358 Mich. 551, 100 N.W.2d 309?

1.--WAS THE SEARCH AND SEIZURE AN UNREASONABLE AND UNLAWFUL SEARCH?

June 10, 1963, Mr. Justice Clark delivered the opinion of the United States supreme court in the case of Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. This case referred to the standard by which State searches and seizures must be evaluated, stating:

'This case raises search and seizure questions under the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). * * * This being the first case arriving here since our opinion in Mapp which would afford suitable opportunity for further explication of that holding in the light of intervening experience, we granted certiorari.'

Justice Clark stated (374 U.S. pp. 31, 32, 83 S.Ct. p. 1628, 10 L.Ed.2d 726):

'Preliminary to our examination of the search and seizures involved here, it might be helpful for us to indicate what was not decided in Mapp. First, it must be recognized that the 'principles governing the admissibility of evidence in federal criminal trials have not be restricted * * * to those derived solely from the Constitution. In the exercise of its supervisory authority over the administration of criminal justice in the federal courts * * * this Court has * * * formulated rules of evidence to be applied in federal criminal prosecutions.' McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943); cf. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937). Mapp, however, established no assumption by this Court of supervisory authority over state courts, cf. Cleary v. Bolger, 371 U.S. 392, 401, 83 S.Ct. 385, 390, 9 L.Ed.2d 390 (1963), and, consequently, it implied no total obliteration of state laws relating to arrests and searches in favor of federal law. Mapp sounded no death knell for our federalism; rather, it echoed the sentiment of Elkins v. United States, supra, 364 U.S. , at 221, 80 S.Ct. [1437], at 1446, 4 L.Ed.2d 1669, that 'a healthy federalism depends upon the avoidance of needless conflicts between state and federal courts' by itself urging that '[f]ederal-state cooperation in the solution of crime under constitutional standards will be promoted, if only by recognition of their now mutual obligation to respect the same fundamentalcriteria in their approaches.' 367 U.S. at 658, 81 S.Ct., at 1963, 6 L.Ed.2d 1081. (Emphasis added.) Second, Mapp did not attempt the impossible task of laying down a 'fixed formula' for the application...