People v. $207.41 U.S. Currency (State Report Title: People v. U.S. Currency)

• Decision Date: 04 April 1986
• Docket Number: Docket No. 78300
• Citation: 383 N.W.2d 633,148 Mich.App. 326
• Parties: The PEOPLE of the State of Michigan and Wayne County Prosecutor, Petitioner, v. $207.41 U.S. CURRENCY, 13 Boxes of Gambling Paraphernalia, 14 Adding Machines, 9 Telephones, 13 Tape Recorders, 1 Television Set, 3 Radios, 19 Chairs, 29 Desks, 1 Filing Cabinet, 1 Refrigerator, 7 Apple IIe Computer Keyboards, 6 Apple IIe Monitors, 3 Apple II Disk Drives, and Miscellaneous Other Related Items and Records, Respondent. 148 Mich.App. 326, 383 N.W.2d 633
• Court: Court of Appeal of Michigan — District of US

Page 633

383 N.W.2d 633

The PEOPLE of the State of Michigan and Wayne County Prosecutor, Petitioner, v. $207.41 U.S. CURRENCY, 13 Boxes of Gambling Paraphernalia 14 Adding Machines, 9 Telephones, 13 Tape Recorders, 1 Television Set, 3 Radios, 19 Chairs, 29 Desks, 1 Filing Cabinet, 1 Refrigerator, 7 Apple IIe Computer Keyboards, 6 Apple IIe Monitors, 3 Apple II Disk Drives, and Miscellaneous Other Related Items and Records, Respondent.

Docket No. 78300.

148 Mich.App. 326, 383 N.W.2d 633

Court of Appeals of Michigan.

Submitted Oct. 2, 1985.

Decided Jan. 21, 1986.

Released for Publication April 4, 1986.

[148 MICHAPP 328] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Civil and Appeals, A. George Best II, Asst. Pros. Atty., Detroit, for petitioner.

James C. Thomas, P.C. by Jamie Ann Thomas, Detroit, and Barry Resnick, Farmington, for respondent.

Before HOLBROOK, R.B. BURNS and KENNETH B. GLASER, Jr. ^*, JJ.

R.B. BURNS, Judge.

This appeal concerns the seizure of respondent's property by the Detroit Police Department. Petitioner brought a petition for forfeiture under M.C.L. Sec. 750.308; M.S.A. Sec. 28.540 and M.C.L. Sec. 750.308a; M.S.A. Sec. 28.540(1).

Detroit police officer Joseph Monacelli testified that he and his partner, Thomas McFarland, were on routine patrol the morning of March 27, 1984, in the area of 19617 Van Dyke in the City of Detroit. Monacelli noticed a black Oldsmobile parked near the location and observed the passenger, a Mr. Czerwinski, get out of the car and walk toward the building at 19617 Van Dyke. The officers observed Czerwinski and the automobile leave the scene and twice return.

After the final return, Monacelli observed Czerwinski enter the building and come out 10 minutes later, carrying nothing in his hands. The officers arrested Czerwinski and the driver for breaking and entering. Monacelli then entered the premises to determine if there was any damage. He observed[148 MICHAPP 329] no damage in the building but saw betting slips and other items of gambling paraphernalia.

A search warrant was subsequently obtained and members of the Detroit Police Department seized the items in question pursuant to the search warrant. Officer Elaine Kapelanski testified that she was a member of the crew that executed the warrant and that, while doing so, the telephones were constantly ringing. She answered one of the calls and received betting requests from the caller. She also testified that once, when she was standing by the front door, an envelope containing additional bet requests and money was dropped in the mail slot.

Respondent first argues that the officers' initial entry into the building without a warrant was invalid and that the seized property was improperly admitted into evidence.

Appellate review of grants or denials of motions to suppress evidence is made on the "clearly erroneous" standard. People v. Burrell, 417 Mich. 439, 339 N.W.2d 403 (1983); People v. Jackson, 123 Mich.App. 423, 332 N.W.2d 564 (1983). A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made. People v. Goss, 89 Mich.App. 598, 280 N.W.2d 608 (1979).

U.S. Const., Am. IV protects against unreasonable searches and seizures. Generally, searches without a warrant are held unreasonable. Nonetheless, an exception to the warrant requirement occurs when the search and seizure is of items in plain view. People v. Whalen, 390 Mich. 672, 213 N.W.2d 116 (1973). The "plain view" doctrine applies when an officer is rightfully in a positi5n where the evidence is plainly visible. The initial intrusion must be justified, and discovery of the evidence must be inadvertent. Coolidge v. New Hampshire, 403 U.S. [148 MICHAPP 330] 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); People v. Harden, 54 Mich.App. 353, 220 N.W.2d 785 (1974).

We must determine whether there were sufficient "exigent circumstances" to warrant the officers' presence inside the building. Respondent correctly states that People v. Dugan, 102 Mich.App. 497, 503, 302 N.W.2d 209 (1980), establishes three kinds of probable cause in exigent circumstance cases that permit a search without a warrant.

"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 NW2d 97 (1980). See United States v Chadwick, 433 US 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977), People v Plantefaber, 91 Mich App 764, 770; 283 NW2d 846 (1979)."

Furthermore, our research, although not yielding a case with the same set of facts as the case at bar, indicates that there is a clearly established rule that public safety officials may enter a building without a warrant in order to protect persons or property, or to determine if there is a person in the premises in need of assistance. Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984); Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); People v. Reed, 112 Mich.App. 693, 317 N.W.2d 228 (1982).

In Tyler, the Court established a rule concerning entry into a building following a fire to investigate the fire:

[148 MICHAPP 331] "In summation, we hold that an entry to fight a fire requires no warrant, and that once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze. Thereafter, additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches." 436 U.S. at 511, 98 S.Ct. at 1950.

A different situation was presented to this Court in Reed. In that case, the police were summoned to an apartment after a tenant discovered his roommate and stereo missing, and blood, human flesh, and bloody towels in the bathroom. The police found blood in the stairwell and on the door leading to the defendant's upstairs apartment. The police entered the apartment without a warrant and discovered the victim's body. This Court affirmed the circuit court's ruling that the entry without a warrant was allowable since the officer could reasonably conclude that there was an injured person in the defendant's apartment in need of immediate aid.

After considering these...