People v. Boudah

• Decision Date: 30 May 1975
• Docket Number: Docket No. 20358,No. 1,1
• Citation: 61 Mich.App. 563,233 N.W.2d 84
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Paul BOUDAH, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 84

233 N.W.2d 84

61 Mich.App. 563

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Paul BOUDAH, Defendant-Appellant.

Docket No. 20358.

Court of Appeals of Michigan, Division No. 1.

May 30, 1975.

Released for Publication Sept. 30, 1975.

Durant, Talbot, Grant & McQuarrie by James Howard Grant, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Ronald P. Weitzman, Asst. Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and BRONSON and KAUFMAN, JJ.

PER CURIAM.

A trial court, sitting without a jury, convicted defendant on January 9, 1974, of carrying a concealed weapon in an automobile, M.C.L.A. § 750.227; M.S.A. § 28.424. On February 21, 1974, defendant received a sentence of 2 1/2 to 5 years in prison, and has appealed.

The sole issue on appeal is whether defendant's right to be free from unreasonable searches and seizures, U.S.Const. Am. IV, and Const.1963, art. 1, § 11, was violated when, after stopping the vehicle in which defendant was a passenger, a police officer ordered defendant out of the vehicle after observing a 'furtive gesture' and discovered a revolver on the front seat of the vehicle where defendant had been sitting.

On October 23, 1973, about 2:45 a.m., two Taylor police officers spotted a Ford Van speeding on eastbound Van Born Road heading towards US 24. The officers pulled the vehicle over, and one of the officers approached the driver of the van to advise him of the nature of the stop. Officer Patrick Drake, pursuant to a personal as well as departmental policy, also exited the police vehicle, and approached the van from the passenger side. He then observed defendant, the passenger in the van, holding his right hand towards the back of his body. While slightly leaning towards the window, defendant moved his arm up and down, and the officer concluded that defendant was trying to hide something. The officer made these observations while standing next to the passenger door looking through the window. The officer told defendant to exit the vehicle. Defendant did not move and the officer repeated the instruction, whereupon defendant stepped out of the van. Once defendant left his seat, the officer, while looking inside the van and without actually entering it, saw a revolver lying upon the front seat near where the back and bottom portions of the seat came together. Defendant was then placed under arrest.

People v. Pitts, 40 Mich.App. 567, 576, 199 N.W.2d 271, 276 (1972), Lv. den., 388 Mich. 791 (1972), referred to some Michigan cases, and said that 'a mere furtive gesture standing alone does not create probable cause to search an automobile'. In Pitts, it was held that the officer's action in searching a car in response to defendant's 'furtive gesture' and a negative reply to an officer's question did not create probable cause for search. 40 Mich.App. at 572, 199 N.W.2d 271. On the other hand, the Court in People v. Hall, 40 Mich.App. 329, 340, 198 N.W.2d 762 (1972), found that a police officer, having noticed a plastic bottle and plastic bag and defendant's action in throwing a jacket over these objects in an attempt to hide the contents thereof, had probable cause to order defendants out of the van, enter the back of the van and seize the objects. Likewise, People v. Evans, 3 Mich.App. 1, 7, 141 N.W.2d 668 (1966), found that defendant's evasive action in hiding behind a trash receptacle gave the police officers reasonable cause to believe that defendant was committing or had committed a crime, therefore justifying their immediate search of defendant and seizure of some liquor bottles and some money.

As indicated, the above cases dealt with whether or not furtive or evasive gestures were sufficient to support a finding of probable cause. Furtive gestures, with nothing more, generally to not support a finding of probable cause. Pitts, supra, People v. Obadele, 58 Mich.App. 139, 227 N.W.2d 258 (1975), and 45 A.L.R.3d 581, Anno.: Search & Seizure: Furtive Movement or Gesture as Justifying Police Search, §§ 2--3, pp. 585--587. Although there are some cases to the contrary, it seems that nighttime searches premised upon furtive and evasive actions are generally upheld. 45 A.L.R.3d 581, § 10, p. 599. However, the instant case may be sustained on a finding of less than probable cause, and it is unnecessary for us to determine whether defendant's 'furtive' action may have been sufficient to support a finding of probable cause to search the van.

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), govern the situation present herein. Terry held that a police officer, based upon his experience and observations, may conduct a limited search for weapons if he has reasons to believe that 'criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous * * *'. 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. Despite the fact that the police officer lacked probable cause to arrest defendant, Terry said that the officer...