People v. Blessing

• Decision Date: 08 June 1966
• Docket Number: No. 18,18
• Citation: 142 N.W.2d 709,378 Mich. 51
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Richard Charles BLESSING, Defendant and appellant.
• Court: Michigan Supreme Court

Page 709

142 N.W.2d 709

378 Mich. 51

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Richard Charles BLESSING, Defendant and appellant.

No. 18.

Supreme Court of Michigan.

June 8, 1966.

Samuel H. Olsen, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, James E. Lacey, Asst. Pros. Atty., Detroit, for the People.

George LaPlata, Detroit, for appellant.

Before the Entire Bench.

KELLY, Justice.

Defendant appeals from a jury conviction of carrying a concealed weapon and asserts as error the failure of the trial court to grant his motion to suppress evidence.

Two points are argued: First, that probable cause was not established to support the search without a warrant, of defendant's person; and, second, that article I, section 11, of the 1963 Michigan Constitution (article 2, section 10, 1908 Constitution), violated the Fourteenth Amendment to the United States Constitution as interpreted by the case of Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933.

The only witness at the examination (December 6, 1963), which resulted in defendant Blessing being bound over for trial, was Detroit police officer Charles McNamara.

He testified that on November 23, 1963, about 1:00 p.m., he, while in uniform in a scout car, heard the radio call which resulted in his car and three other scout cars proceeding to the retail jewelry store located at 19376 Livernois Avenue, Detroit, Michigan; that the manager, a saleslady, and two white males were in the store; that after talking to the manager and the saleslady he talked 'to the two men out there and questioned them as to their business in the store there.' 'McNamara further testified:

'I asked Richard Charles Blessing to identify himself to me, and as to what his purpose was as to being in that location there, and he stated to me that he was there in regards to making a purchase of some jewelry, and that he had made an appointment with the manager, Herbert Kay, to come back at 4:30 that day, to make a purchase. * * * I asked Mr. Martin for his identification, and he did not produce any identification, and he told me he was Father John Moore and that he was,--or rather, I asked him where they were located, and Richard Blessing stated at that time that they had just gotten into town, and they had no address here at this time. * * * I went to talk to Blessing, and I wanted to take him in the back room and try and figure out their story, and as we walked back there I informed him that I was going to search him, and upon searching him I found a pair of handcuffs, as well as a loaded .38 revolver on his hip.'

The court refused defendant's objection to the introduction in evidence of the revolver the police officer testified he found concealed on defendant Blessing's person, stating that he disagreed with counsel that Mapp v. State of Ohio, supra, invalidated the Michigan Constitution In re search and seizure.

Motion to suppress evidence and quash information was duly made by counsel for appellant, heard before the presiding judge for the Recorder's Court for the city of Detroit, and denied.

At the March 19, 1964 trial, in addition to officer McNamara, the People introduced the testimony of three police officers and Mr. Kay, the manager of the jewelry store. Mr. Kay testified why the behavior of appellant Blessing and his companion Martin, on the sidewalk before entering the jewelry store caused him to call for help by pressing the alarm button and how their actions after entering the store confirmed his suspicions. The police officers' testimony established that after Blessing was searched, a search of Martin was also made which disclosed that he had on his person a loaded .38 caliber revolver.

At the conclusion of the People's case, counsel for appellant against moved to suppress the evidence. The trial court indicated that the officers had a right to make the search, and denied said motion.

Because of extensive questioning by this Court during oral argument, the assistant prosecuting attorney of Wayne county asked for, and was granted, the right to file a supplemental brief. We quote from that brief as follows:

'The appellee herein is not, nor has he been unfamiliar with the Michigan practice of requiring pre-trial motions to test the legality of a search and seizure. People v. Marxhausen, 204 Mich. 559 (171 N.W. 557, 3 A.L.R. 1505); People v. Miller, 217 Mich. 635 (187 N.W. 366); People v. Bass, 235 Mich. 588 (209 N.W. 927); People v. Heibel, 305 Mich. 710 (9 N.W.2d 826); People v. Taylor, 341 Mich. 570 (67 N.W.2d 698); People v. Robinson, 344 Mich. 353 (74 N.W.2d 41); People v. Ferguson, 376 Mich. 90 (135 N.W.2d 357).

'Furthermore, the appellee admits knowledge of the companion rule that the facts upon which a pre-trial motion is to bedetermined are the preliminary examination testimony and that these facts may not be amplified by the trial testimony for purpose of the appeal. People v. Taylor, supra; People v. Zeigler, 358 mich. 355 (100 N.W.2d 456); People v. Williams, 368 Mich. 494 (118 N.W.2d 391). * * *

'The position of the appellee is that the trial court could have refused to hear argument by defense counsel on the issue of search and seizure for the reason that the matter had already been decided by pre-trial motion and that the issue of the legality of the search and seizure was collateral to the main issue of the guilt or innocence of the defendant on trial.

'The appellee further states that it is his opinion that the trial court should not have granted a second hearing on the motion to suppress and that to deny such a motion would be in line with better Michigan practice in that a defendant is not legally entitled to a second hearing on the legality or illegality of search and seizure. People v. Kerwin, 234 Mich. 686 (209 N.W. 157); People v. Kramer, 260 Mich. 94 (244 N.W. 243).

'However, the trial court, in its discretion, permitted the issue to be renewed by defense counsels, and at their urging, heard arguments outside the presence of the jury, and then rendered its decision denying the renewed motion to suppress. By Following this course of action, the trial court gave the defendants a second chance to urge the illegality of the search and seziure. Upon a full and fair hearing, it was determined that the defense counsel's motion be denied. Does this decision of the trial court render the renewal of the issue of the legality of the search nugatory and so much idle waste of judicial time? We think not. It is the position of the appellee that the People of the State of Michigan, having twice been put to the task to defend the search and the seizure, in all fairness should also be the recipients of any benefit conferred by reason of the second argument and not be limited or bound by the second argument only if the People should lose same. Therefore, the position of the appellee has been based primarily on the apparent fairness of this latter premise.

'In legal support of this premise we would direct the Court's attention to the following Michigan precedents.' ¹

I believe it will assist the courts and the law enforcement officers if this decision is confined to answering two questions:

Question No. 1: Was sufficient evidence introduced at the preliminary examination justifying the court's denial of defendant's motion to suppress evidence and binding befendant Blessing over for trial?

Question No. 2: Did the judge at the preliminary examination rightly conclude that he had the right and duty to follow and enforce the constitutional provisions in re search and seizure?

QUESTION No. 1

In determining the legality of a search and seizure, this Court should give serious thought to the particular situation and all its attendant circumstances. ²

As officer McNamara turned his scout car toward the jewelry store, knowing that three other scout cars had been directed by radio to converge on this store, he had reason to conclude that he was approaching a point of great danger.

It is my opinion that the police officers would have been justified under these circumstances to have immediately taken the necessary steps to assure themselves that those within the jewelry store were not carrying concealed weapons.

In addition, however, police officer McNamara, trying to learn who these people were and obtain their explanation of their actions that caused the manager to push the alarm button, received from appellant Blessing the answer that they had come from Illinois to that jewelry store to buy a diamond and 'had just gotten into town, and they had no address here at this time.'

I quote with approval the following from the People's brief:

'The earlier recitation in this section of the brief of the facts, possessed by the police officers at the time of arrest, certainly demonstrates the officers acted with reasonable prudence and caution and had good reason to believe that these men were committing a felony. It is respectfully submitted that if the police officers had charged into the jewelry store, the result of an official police broadcast and had seen nothing ostensibly wrong and walked right out without further investigation, they indeed would have been derelict in their duty and subject to severe censure by their superiors. The police, under the facts in the present case acted reasonably and the trial court's determination that they did in fact so act cannot be realistically subject to doubt.'

Officr McNamara did not have to have legal evidence that appellant entered the jewelry store to commit robbery and, if necessary, murder, but only sufficient facts for a reasonably discreet and prudent man to conclude such was true, as is disclosed by Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629, where the court held:

'To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. It is enough if the apparent...